text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GREG FLEMING, Defendant and Appellant.
    No. 86-158.
    Submitted on Briefs Oct. 23, 1986.
    Decided Jan. 2, 1987.
    730 P.2d 1178.

      Thomas Alan Kragh, Poison, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, John R. Frederick, Co. Atty., Poison, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Greg Fleming appeals a Lake County District Court verdict convicting him of issuing bad checks, common scheme, a felony. Fleming was sentenced to three years in prison with all but ten days suspended subject to certain conditions, and ordered to pay restitution. Three issues are raised on appeal:

1) Whether the District Court erred in denying the appellant’s motion to dismiss the second amended information?

2) Whether the District Court erred in admitting testimony by a bank officer regarding appellant’s signature?

3) Whether sufficient evidence exists to support the conviction of issuing bad checks as part of a common scheme?

We affirm.

On September 3, 1985, Fleming was charged by second amended information with issuing bad checks, common scheme, a felony, or in the alternative, theft, common scheme, a felony. The information specified that eleven checks “as well as others” constituted a common scheme. On September 17, 1985, Fleming filed a motion to dismiss which stated that the information failed to charge an offense and/or was not supported by probable cause. The motion was denied October 3,1985. At trial, the State established that between January 1984 and April 1985, Fleming issued a total of 198 checks returned N.S.F. by the Ronan State Bank, the depository bank. Representatives of six merchants in the Lake County area testified in regard to nine of the N.S.F. checks listed in the amended information. The managing officer and executive vice president of the bank testified that written notice is sent by the bank to a customer when insufficient funds are available to pay a particular check. The bank officer provided copies of Fleming’s bank statements for the months of January 1984 through May 1985, which were admitted into evidence to show that 198 of Fleming’s checks had been returned by the bank due to insufficient funds. The bank officer further testified that he had known Fleming since birth and because of his personal contact with Fleming at the bank, he was familiar with Fleming’s signature. Prior to trial, the officer inspected Fleming’s signature card filed with the bank and at trial identified the mark placed on the checks by the bank showing that the checks had indeed been returned due to insufficient funds. He concluded his testimony by stating that in his opinion, Fleming wrote the checks in question. On January 31, 1986, the District Court found Fleming guilty of issuing bad checks, common scheme, a felony, under Section 45-6-316, MCA. The court dismissed the alternative count of theft, common scheme, a felony.

The first issue is whether the District Court erred in denying the appellant’s motion to dismiss the second amended information. Fleming argues that he was not adequately apprised of the charges being brought against him, and that the allegation of a common scheme of issuing bad checks should only be considered as a sentencing matter.

The statute under which Fleming was charged, Section 45-6-316, states as follows:

“(1) A person commits the offense of issuing a bad check when he issues or delivers a check or other order upon a real or fictitious depository for the payment of money knowing that it will not be paid by the depository.
“(2) If the offender has an account with the depository, failure to make good the check or other order within 5 days after written notice of nonpayment has been received by the issuer is prima facie evidence that he knew that it would not be paid by the depository.
“(3) A person convicted of issuing a bad check shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both. If the offender has engaged in issuing bad checks which are part of a common scheme or if the value of any property, labor, or services obtained or attempted to be obtained exceeds $300, he shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both. (Emphasis added.)”

The second amended information charged that:

“on or about the dates stated below . . . Greg Fleming, with the purpose to secure property, to-wit: merchandise, services, or money from the following businesses or persons, issued or delivered the following checks, upon a depository . . . knowing that they would not be paid by the depository . . . The above checks, as well as others constituted a Common Scheme or were issued to obtain property, labor, or services which exceeded $300.00 in value ...”

The information charges the offense in the language of Section 45-6-316, MCA, and matches eleven checks with a particular payee, amount, and date. Montana follows the general rule that an information is sufficient if it properly charges an offense in the language of the statute describing the offense thereby sufficiently apprising the accused of the crime charged. It need not be perfect. State v. Pearson (Mont. 1985), [217 Mont. 363,] 704 P.2d 1056, 1059, 42 St.Rep. 1253, 1256. It follows that Fleming was clearly on notice of the charges being brought against him. In addition we reject Fleming’s argument that the common scheme concept should only be considered as a sentencing matter.

“Common scheme” is defined in Section 45-2-101(7), MCA as “a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan which results in the repeated commission of the same offense or affects the same person or the same persons or the property thereof.” (Emphasis added.)

In State v. Renz (Mont. 1981), 628 P.2d 644, 646, 38 St.Rep. 720, 723, we said that proof of common scheme requires proof that the suspect series of acts constitute a common criminal scheme. These acts must be either individually incomplete such that they show that a single crime had been committed, or be acts which closely follow one another evidencing a continuing criminal design.

Common scheme is clearly an element to be charged and proven under Section 45-6-316, MCA, as it is specifically mentioned in subsection (3) of the statute. The District Court found that Fleming was involved in a common scheme which resulted in the repeated commission of the same offense, issuing a bad check. We agree with this finding.

The second issue is whether the District Court erred in admitting testimony by a bank officer regarding appellant’s signature.

Rule 901, M.R.Evid., provides:

“(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
“(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
“(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.”

Subsection (b)(2) expresses the rule observed at common law and in Montana that a nonexpert may give his opinion on the genuineness of writing if he is familiar with that handwriting. See Commission Comment to Rule 901(b)(2), M.R.Evid.

The managing officer and executive vice president of the bank which handled the checks testified that he was familiar with Fleming’s signature. The bank official’s familiarity was gained through having known Fleming since birth, his personal contact with Fleming at the bank, and his review of Fleming’s signature card on file at the bank. The bank officer stated that comparing signature cards with the signatures on individual checks was part of his job at the bank. He concluded that, in his opinion, Fleming wrote the checks in question.

We believe the bank officer was sufficiently qualified to render an opinion as to the author of the checks admitted into evidence.

The final issue is whether sufficient evidence exists to support the conviction of issuing bad checks as part of a common scheme.

The test applied by this Court where sufficiency of the evidence is an issue on appeal in a criminal case, whether the trial is by jury or not, is the substantial evidence test. This test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. In applying this test the evidence is viewed in a light most favorable to the prevailing party. State v. Oman, (Mont. 1985), [218 Mont. 260,] 707 P.2d 1117, 1120, 42 St.Rep. 1565, 1568. The evidence clearly justifies the District Court’s conclusion that the requirements of Section 45-6-316, MCA, have been met. It was proven that Fleming issued or delivered a total of nine checks to various businesses and individuals over the course of a year, knowing that the checks would not be paid by his bank. The repeated issuance of one bad check after another fits the definition of a common scheme as found in the statute. The decision of the District Court was correct.

Affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    RONALD EVELEIGH, Claimant and Appellant, v. L.E. MYERS, CO., INC., Employer, and National Union Fire Insurance Company of Pittsburgh, Defendant and Respondent.
    No. 86-327.
    Submitted on Briefs Sept. 18, 1986.
    Decided Jan. 2, 1987.
    730 P.2d 1176.
    Larry R. Meyer, Stevensville, for claimant and appellant.
    Garlington, Lohn & Robinson, Larry W. Jones, Missoula, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a judgment of the Workers’ Compensation Court denying claimant disability benefits at this time. Both parties appeal. We affirm.

On March 1, 1983, claimant Ronald Eveleigh suffered a work-related injury to his lower back when he accidentally drove a caterpillar tractor into a ditch. At the date of injury, Eveleigh was employed by the L.E. Myers Company, which was provided workers’ compensation coverage by National Union Fire Insurance Company of Pittsburgh, (both of whom are hereinafter referred to as L.E. Myers).

Shortly after the accident, Eveleigh experienced stiffness and pain in his lower back and left hip. He first sought medical attention on April 11, 1983, when he saw Dr. O.W. Baltrusch, who diagnosed lower back pain and probable muscle strain. Eveleigh was later referred to orthopedic surgeon Dr. James Burton on September 29, 1983, who diagnosed a muscle and ligament strain. Dr. Burton later testified that Eveleigh had reached a medically stable condition by April 11, 1983.

Eveleigh was laid off by L.E. Myers on April 29, 1983. He immediately applied for unemployment insurance benefits, stating in his application that he was able and available to work and had no medical condition which prevented him from accepting immediate employment as an equipment operator. Eveleigh received unemployment benefits for five months by signing weekly a card indicating that he had no medical condition preventing him from accepting employment.

From the time he was laid off by L.E. Myers in April, 1983, Eveleigh remained unemployed for more than fourteen months. During this time, Eveleigh remained active around his small farm, constructing fences and a pole barn, installing plumbing and irrigation pipes as well as hunting and fishing. The Workers’ Compensation Court found that during this fourteen month span, Eveleigh did not significantly change his life style as a result of his back injury.

Eveleigh ultimately returned to work on July 23, 1984, as a heavy equipment operator for the Commonwealth Electric Company. After a few days with Commonwealth, Eveleigh complained of debilitating back pains which prevented him from performing heavy manual labor. He was ultimately laid off by Commonwealth on January 13, 1985, and has not worked since. After being laid off by Commonwealth Electric, Eveleigh applied for and received unemployment benefits. In his application, Eveleigh again stated that he had no medical condition which prevented him from accepting immediate employment. The court further found that Eveleigh had not been actively seeking employment since September 6, 1985, because he was winterizing his home.

In June, 1985, Eveleigh brought this case before the Workers’ Compensation Court. That court found that first, Eveleigh was not entitled to temporary total disability benefits; second, Eveleigh was not entitled to permanent partial disability benefits at this time; third, Eveleigh was not entitled to a twenty percent penalty; and fourth, Eveleigh was not entitled to an award of attorney’s fees and costs.

Eveleigh now appeals, arguing that he is entitled to permanent partial disability benefits, a twenty percent penalty and an award of attorney’s fees and costs.

Eveleigh first argues that the Workers’ Compensation Court erred in its denial of his claim for permanent partial disability benefits. Eveleigh elected to seek permanent partial disability benefits under Section 39-71-703, MCA, for his actual loss of earning capacity. The Workers’ Compensation Court, however, held that Eveleigh had failed to prove that any loss of earning capacity was due to his industrial injury.

This Court’s function on appeal is strictly confined to determining whether the lower court’s findings of fact and conclusions of law are supported by substantial credible evidence. Tenderholt v. Travel Lodge International (Mont. 1985), [218 Mont. 523,] 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794-95. Where, as in this case, conflicts exist in the evidence presented, it is the duty and function of the trial court to resolve such conflicts; we will not disturb its findings so long as they are based on substantial evidence. Tenderholt, 709 P.2d at 1013.

Our review of the record reveals considerable support for .the court’s findings. We find no error. We therefore affirm the District Court’s denial of permanent partial disability benefits. We further deny Eveleigh’s claim for a twenty percent penalty and attorney’s fees and costs.

It is so ordered.

MR. JUSTICES MORRISON, WEBER, SHEEHY and GULBRANDSON concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT WILLIAM GONYEA, Defendant and Appellant.
    No. 85-355.
    Submitted on Briefs Aug. 21, 1986.
    Decided Jan. 6, 1987.
    730 P.2d 424.
    James P. O’Brien, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Robert Terrazas, Deputy Co. Atty., Missoula, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

A jury found the defendant/appellant guilty of four counts of burglary. He was sentenced by the court of the Fourth Judicial District in Missoula County, Montana, to twenty-five years in the Montana State Prison. A ten year sentence was imposed in each of the burglary counts, three counts to run concurrently, but consecutive to the sentence in Count I. Five years were added to the sentence because the defendant is a persistent felony offender. He is designated a non-dangerous offender for purposes of parole. Defendant appeals. We affirm.

Appellant (Gonyea) presents two issues on appeal:

(1) whether there was sufficient corroborating evidence to uphold his conviction; and

(2) whether comments by the prosecution on voir dire and opening statement violated his constitutional right against self-incrimination.

Gonyea first argues insufficient corroborating evidence to uphold his conviction. The statutes set forth the requirements for corroborated testimony and legal accountability:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, . . . unless the testimony is corroborated by other evidence which . . . tends to connect the defendant with the commission of the offense . . .”

Section 46-16-213, MCA.

“A person is legally accountable for the conduct of another when:
“(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense . . .”

Section 45-2-302, MCA.

The question as to whether a witness for the State is an accomplice is — unless such fact is undisputed — for the jury, under proper instruction by the court. State v. Slothower (1919), 56 Mont. 230, 232, 182 P.270, 271. The District Court instructed the jury:

“It is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not any witness other than Neil Vanderpan was or was not an accomplice within the meaning of the law.”

This is a proper instruction. The jury also was instructed as to what an accomplice is and when legal accountability exists.

At the close of the State’s case-in-chief, Gonyea moved for a directed verdict, alleging insufficient evidence to sustain a conviction for the burglaries. He argued the three key witnesses against him were accomplices as a matter of law and there was insufficient independent corroborative evidence tending to connect him with the commission of the crime. The State admitted Neil Vanderpan was an accomplice as a matter of law, but contested Gonyea’s claim that Neil’s mother, Selah Vanderpan, and Kris Davis were accomplices as a matter of law.

The concept of legal accountability has been the subject of much attention in case law.

“An accomplice is . . . ‘one who knowingly, voluntarily and with common intent with the principal offender unites in the commission of a crime . . . One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or, not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.’ ”

State v. Harmon (1959), 135 Mont. 227, 236, 340 P.2d 128, 132, quoting State ex rel. Webb v. District Court (1908), 37 Mont. 191, 200-201, 95 P. 593, 597.

Neil Vanderpan testified he left work with Gonyea the night of the burglaries and they went to Annette Cleary’s trailer. Cleary, her son, and Kris Davis were at the trailer. Thereafter Vanderpan and Gonyea left, spent about two hours at a Seeley Lake bar, then returned to the Cleary’s trailer. About half an hour later, Gonyea and Vanderpan again left the trailer. Outside the trailer Gonyea told Vanderpan they were going to the Rustics to break in.

They broke a lock off the door to the saw shop and took money from drawers. Then they broke the lock on the door to the warm-up trailer and took money from the pop machines. They proceeded to the Swan Valley Center store, and pried open the back door. They took a safe, a black box, and a bank bag behind a nearby building, stuffed their pockets with money and hid what they did not take. They re-entered the store and took coffee cans containing coins. Then they went back toward Cleary’s trailer, hid the cans by the side of Cleary’s garage, and went inside the trailer.

There is no evidence that Kris Davis was involved in the commission of the burglaries. She was present when Gonyea and Neil Vanderpan returned to Cleary’s trailer after allegedly committing the burglaries. She saw them remove money from their pockets and saw Gonyea hide some of it in a closet in the trailer. Gonyea told her about the burglaries, and that she should tell anyone who asked that he was with her all that evening and night.

About a week after the burglary, Davis went with Gonyea and Neil Vanderpan to Kalispell. Vanderpan drove and Gonyea and Davis rolled coins. Davis made two trips into Rosauer’s with fifty dollars in coins, which she exchanged for paper money.

This trio made two more trips to Kalispell during the next few days. Selah Vanderpan drove them both times. She testified she did not know before the first trip that Gonyea had committed the burglaries. There is no evidence to the contrary or to support the contention that she helped plan or commit the burglaries.

We find sufficient evidence in the record tending to show .neither Selah nor Kris were accomplices to make the question one for the jury. State v. Searle (1952), 125 Mont. 467, 474, 239 P.2d 995, 999. It is within the sound discretion of the District Court to decide whether a motion for directed verdict should be granted. Section 46-16-403, MCA; State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079; State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v. White Water (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664. The motion was properly denied.

Thereafter, Gonyea introduced evidence to sustain his position. All evidence was considered by the jury, after proper instruction. “[W]here the evidence is conflicting or doubtful, either as to [whether the witness for the State is an accomplice] or as to corroboration, the court should not invade the province of the jury.” State v. Smith (1925), 75 Mont. 22, 27, 241 P. 522, 523.

“To constitute [one] an accomplice, he must have entertained a criminal intent common with that which moved the defendants . . . and since [they were] not personally present joining in the [burglary, they] must also have advised and encouraged its commission. Whether [they] entertained the criminal intent, and whether [they] advised and encouraged the defendants, were questions properly for the determination of the jury under appropriate instructions.” State v. Slothower, supra, 56 Mont, at 232, 182 P. at 271.

The jury did not determine that Selah Vanderpan or Kris Davis had the requisite criminal intent (mental state) to commit burglary, or that they aided in anyway the planning of the burglary. Therefore it determined they were not accomplices. We will not overturn a jury’s decision when it was reached after proper instruction. Because neither Selah nor Kris was an accomplice their corroborative testimony is admissible. “[T]he corroboration is sufficient if, ‘unaided by the testimony of an accomplice, it tends to connect the defendant with the commission of the offense.’ ” (Citations omitted.) State v. Smith, supra, 75 Mont, at 27, 241 P. at 523.

Gonyea did not testify in his own behalf. He argues the prosecutor’s comments on voir dire and opening statement were highly improper and prejudicial. His motion for mistrial was denied. Gonyea also claims certain statements made by the prosecutor on opening statement were prejudicial. He argues these two incidents entitled him to a reversal of his conviction. We disagree.

The right of an accused to remain silent is, of course, fundamental. It is well settled in this state that a comment so stating is not the same as a comment on the failure to exercise that right. State v. Gladue (Mont. 1984), [208 Mont. 174,] 677 P.2d 1028, 1032, 41 St.Rep. 249, 254. A comment on the defendant’s failure to testify violates the self incrimination clause of the Fifth Amendment, applicable to the various states by way of the Fourteenth Amendment. Griffin v. California (1965), 380 U.S. 609, 611, n. 3, 85 S.Ct. 1229, 1231, n.3, 14 L.Ed2d 106, 108, n.3. The prosecutor or judge who makes such a comment “solemnizes the silence of the accused into evidence against himself.” Griffin, supra, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed. 2d at 110. Such a comment results in reversible error.

After careful consideration of the entire transcript, however, we are persuaded neither the prosecutor’s comments on voir dire, nor opening statement can be held to have been such comments. We find them to be harmless beyond a reasonable doubt. State v. Gladue, supra, [208 Mont. 174,] 677 P.2d at 1031, 41 St.Rep. at 253; Chapman v. California (1976), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 710. We do not find:

“[T]he language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.”

State v. Anderson (1976), 156 Mont. 122, 125, 476 P.2d 780, 782, citing Knowles v. U.S. (10th Cir. 1955), 224 F.2d 168, 170.

Defendant’s right not to testify is clearly protected. The prosecution should not refer to the right directly or indirectly at any stage of the trial. Failure to follow this rule of conduct is inviting a mistrial or reversal on appeal.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, WEBER, MORRISON, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    FIRST NATIONAL BANK OF CUT BANK, Plaintiff and Respondent, v. ROBERT C. SPRINGS and Jenell D. Springs, his wife; Internal Revenue Service, United States Department of Treasury, Industrial Financial Corporation and Sears Roebuck and Company, Defendants and Appellants.
    No. 86-198.
    Submitted on Briefs Oct. 23, 1986.
    Decided Jan. 6, 1987.
    731 P.2d 332.

      Cannon & Sheehy, Edmund F. Sheehy, Jr., Helena, for defendants and appellants.
    Peterson, Peterson, Burns & Shors, Richard A. Shors, Cut Bank, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The District Court of the Ninth Judicial District for the County of Glacier entered a default judgment and a deficiency judgment against Robert Springs in a foreclosure action. Dr. Springs then filed motions to set aside the default judgment and stay the deficiency judgment. The District Court denied these motions and Dr. Springs appealed. We affirm.

The issue is whether the District Court erred in denying the motion to set aside the default judgment or erred in denying the motion to stay the deficiency judgment.

In early 1985, Dr. Springs was mailed a notice of default, pursuant to a trust indenture agreement, by First National Bank of Cut Bank (Bank) requesting past due house payments. Dr. Springs did not respond or cure the default within the 30 days allowed by the notice,, and the Bank filed a foreclosure action on his home. The Bank’s complaint requested a deficiency judgment if the foreclosure sale bid did not cover the Bank’s judgment and costs of the sale. Dr. Springs was personally served in Glacier County with process, but did not appear in the foreclosure action.

A default judgment was entered against Dr. Springs and the District Court ordered foreclosure of the property. A sheriffs sale was held, but the sale did not cover the total debt owed to the bank so the District Court entered a deficiency judgment against Dr. Springs.

About five months after the deficiency judgment was entered, Dr. Springs filed motions to set aside the default judgment, to stay execution of the deficiency judgment, and to produce documents. The motion to set aside the default judgment was based on Rules 55(c) and 60(b)(6), M.R.Civ.P. The District Court denied Dr. Springs motions and stated: “Defendant Springs has inexcusably slumbered on his rights and ignored the judicial machinery established by law.” Dr. Springs appealed.

Did the District Court err in either denying the motion to set aside the default judgment or in denying the motion to stay the deficiency judgment?

A court may relieve a party from a final judgment or order pursuant to Rule 60(b), M.R.Civ.P. which provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered in time to move for a new trial under Rule 59(b); (3) fraud (whatever heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) when a defendant has been personally served, whether in lieu of publication or not, not more than 60 days after the judgment, order or proceeding was entered or taken, or, in a case where notice of entry of judgment is required by Rule 77(d), not more than 60 days after service of notice of entry of judgment. When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within 180 days after the rendition of any judgment in such action, to answer to the merits of the original action. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as may be required by law, or to set aside a judgment for fraud upon the court.”

This Court has previously stated that:

“A manifest abuse of discretion must be shown before this Court will interfere with the trial court’s discretion on a motion to set aside a default judgment. (Citations omitted.)”

Schmidt v. Jomac, Inc. (1982), 196 Mont. 323, 328, 639 P.2d 517, 520. Therefore, our discussion will center on whether Dr. Springs has shown a manifest abuse of discretion by the District Court which requires reversal.

Essentially, Dr. Springs argues that the order denying the motion to set aside the judgments should be overturned for four reasons. First, Dr. Springs maintains that he failed to make a timely appearance because he did not believe there would be any possibility of a deficiency judgment against him so he did not believe he would have to appear in the foreclosure action. Second, Dr. Springs maintains that if he had answered the complaint he would have had several meritorious defenses to the complaint. Third, Dr. Springs maintains that even if this Court does not set aside the default judgment, we should set aside the deficiency judgment because the fair market value of the property foreclosed upon is in excess of the amount bid at the foreclosure sale. And fourth, because the District Court did not have a hearing on the underlying motions, it could not have been fully informed on the motions it was deciding, so this case should be remanded and a full hearing required.

At the beginning of our discussion of this case, we emphasize that we are bound by the record. We may not decide a case on the basis of unsubstantiated statements in the briefs. Dr. Springs has failed to show by affidavit or other appropriate means a basis for many of the facts he relies on in his brief. Accordingly, some of the arguments concerning his appeal should be denied summarily. We will consider his arguments based only on the facts supplied in the District Court’s order and transcript of the proceeding below.

Although Dr. Springs based his motions to vacate the judgments on Rule 60(b)(6), M.R.Civ.P., we conclude that his motions more properly should have been based upon Rule 60(b)(1), M.R.Civ.P. His reasons cited for his failure to appear clearly fall into the “mistake” and “inadvertence” category. Wright and Miller cite several federal cases construing Federal Rule (60) (b), which is almost identical to the Montana Rule, and state:

“These cases certainly seemed to establish that clause (6) and the first five clauses are mutually exclusive and that relief cannot be had under clause (6) if it would have been available under the earlier clauses. This reading seems required also by the language of the rule.”

11 Wright and Miller, Federal Practice and Procedure, Civil Section 2864, p. 217.

We agree with Wright and Miller’s interpretation that relief cannot be obtained under Rule 60(b)(6), M.R.Civ.P., if that relief is available under Rule 60(b)(1) to (5), M.R.Civ.P. Accordingly, Dr. Springs’ motions could have been denied based on his failure to present those motions within the 60 day time limits set out in Rule 60(b), M.R.Civ.P. However, we will address Dr. Springs’ arguments.

Dr. Springs’ first argues that he failed to make a timely appearance because he did not believe a deficiency judgment could be obtained against him. We have addressed similar arguments and concluded:

“The contention that counsel did not file an answer because he mistakenly relied on the automatic stay provision of the Bankruptcy Code is insufficient under the law.”

Schmidt, 639 P.2d at 519.

In Schmidt, this Court refused to set aside a default judgment concluding that neither Rule 60(b)(1) or Rule 60(b)(6), M.R.Civ.P., mandated the setting aside of the judgment. The Schmidt’s attorney believed that no answer or appearance was necessary because the automatic stay provisions of the Bankruptcy Code operated as a bar to the lawsuits filed against the Schmidts. Therefore, no appearance was made in the lawsuits by the Schmidts and default judgments were entered against them. Just as in Schmidt, Dr. Springs is not entitled to relief from the default judgment because he reached an incorrect legal conclusion.

Second, Dr. Springs claims several defenses which he believes are meritorious in support of his motion to set aside the default judgment. Dr. Springs is correct in stating the rule that the party seeking to set aside an entry of default must establish good cause for his failure to appear and the existence of a meritorious defense to the action. McClurg v. Flathead County Commissioners (1980), 188 Mont. 20, 610 P.2d 1153. Dr. Springs states in his brief that he “reasonably believed that he did not have to appear in this litigation because no personal judgment could be taken against him.” We note that this belief is not established by affidavit. We also point out that a mistake as to his necessity to appear does not warrant setting aside the default judgment. The rule enunciated in McClurg states two conditions, both of which must be met to set aside an entry of default. Because Dr. Springs has failed to meet the first condition by establishing a good cause for his failure to appear, we need not rule on the second condition regarding his defenses.

Third, Dr. Springs maintains that we should set aside the deficiency judgment because the fair market value of the foreclosed property is in excess of the foreclosure sale bid. There is nothing in the record which supports Dr. Springs’ contention that the fair market value of his house exceeds the foreclosure sale bid. This Court has stated many times that we can only consider evidence in the record. Great Northern Railway Co. v. Hatch (1934), 98 Mont. 269, 38 P.2d 976. We conclude that because there is no evidence in the record supporting Dr. Springs’ argument, he is not entitled to relief based upon this argument.

Last, Dr. Springs argues that the District Court denied the various motions without holding a hearing or reviewing the parties’ arguments, thus the District Court’s order should be reversed and a hearing ordered. We point out that neither Rule 55(c) nor Rule 60(b), M.R.Civ.P., provides a right to an evidentiary hearing. In addition, Dr. Springs did not request a hearing from the District Court until after his motion had been denied. As to the reviewing of the parties’ arguments, nothing in the record suggests the District Court did not properly receive each parties’ motions and briefs before entering the order denying the motion to set aside the judgments.

Dr. Springs filed his motion to set aside the default judgment and supporting memorandum on February 13, 1986. The Bank filed their memorandum opposing Dr. Springs’ motion on February 19, 1986. The District Court’s order denying Dr. Springs’ motion was filed February 20, 1986. Dr. Springs then filed his motion to set aside the order on February 26, 1986, and his memorandum in support of that motion on February 28, 1986. The Bank filed its reply brief on March 4, 1986, and the District Court entered the order denying the motion to set aside the order on March 6, 1986. We hold that the record does not demonstrate a lack of review of either party’s arguments by the District Court.

Therefore, we conclude that Dr. Springs has not shown a manifest abuse of discretion by the District Court on any issue and affirm the District Court in full.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and HUNT concur.


author: MR. JUSTICE MORRISON

text:
    In re the MARRIAGE OF DOROTHY ANNE JONES, Petitioner and Respondent, and ALFRED LEROY JONES, Respondent and Appellant.
    No. 86-298.
    Submitted on Briefs Oct. 23, 1986.
    Decided Jan. 8, 1987.
    731 P.2d 903.

      Morrow, Sedivy & Bennett, J.H. Morrow, Bozeman, for respondent and appellant.
    Landoe, Brown, Planalp, Kommers & Johnstone, James A. John-stone, Bozeman, for petitioner and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Respondent Alfred Jones appeals the judgment entered by the Eighteenth Judicial District Court in the dissolution action between respondent and petitioner Dorothy Jones. Respondent appeals the property distribution and maintenance award in favor of petitioner. We affirm.

The parties were married on September 27,1964, in Reno, Nevada. Alfred is now 48 years of age; Dorothy is 42. The children of the marriage have reached the age of majority and are self-supporting. Alfred has been employed as a store manager of tire shops throughout the pacific northwest during the duration of the marriage. The past eight years he has been the store manager for Whalen Tire Shop in Bozeman, Montana. Alfred’s salary is $2500 a month, plus he is covered by health and life insurance, and the company supplies him with a car for personal and business use. In addition, he has received yearly bonuses ranging from $4000 to $8000, and has a vested interest in a profit sharing plan and a retirement pension plan with Whalen Tire Shop.

Dorothy has experience in light bookkeeping and secretarial work. Dorothy’s most recent employment was with the Gallatin County Health Department at a net monthly salary of $769.

Dorothy filed a petition for dissolution on May 8, 1985, and moved out of the family home. On July 8, 1985, the District Court entered the decree of dissolution, reserving property distribution and maintenance award until a later date. Alfred was ordered to make Dorothy’s monthly car payment and provide $100 monthly maintenance pending final resolution of the case. The parties’ home was sold, with Dorothy and Alfred each taking $1500 and the remainder, approximately $45,000, being placed in an account.

Dorothy quit her secretarial job in November, 1985, desiring to move to Spokane. She filed a motion for distribution of funds, requesting $4500 be distributed to her from the home sale proceeds to fund her move to Spokane and provide living expenses while she searched for employment. The court granted Dorothy’s motion for distribution of funds.

On December 2, 1985, the issues of maintenance and property distribution were heard. The District Court entered its findings of fact and conclusions of law on these matters January 8, 1986. Dorothy was awarded $400 monthly maintenance for a period of 5 years, half of which was to be placed in an individual retirement account (IRA). After five years maintenance would be reduced to $200 with all amounts to be placed in an IRA. The property was divided as follows:

ASSETS: VALUE TO WHOM DISTRIBUTED HUSBAND WIFE

Furniture $ 6,200.00 $ 6,200.00

Furniture 5.500.00 5,500.00

Blazer 6,000.00 6,000.00

Riviera 4.400.00 4,400.00

Trailer 4.000. 00 4.000. 00

Tractor 3.000. 00 3.000. 00

Insurance 2.000. 00 2.000. 00

Stock 375.00 375.00

Pension Plan 11.835.00 11.835.00

Profit Sharing Plan 11.250.00 11.250.00

Cash from sale of home 4.500.00 4,500.00

Inheritance Balance of home sale Undetermined 40.837.00 Undetermined 11,601.00 29,236.00

Leroy IRA 6.500.00 6,500.00

Dorothy IRA 2,000.00 2,000.00

Home furniture 4.500.00 4,500.00

P.E.R.S. 1,000.00 1,000.00

GROSS $113,897.00 $62,760.00 $51,136.00

LIABILITIES VALUE TO WHOM DISTRIBUTED HUSBAND WIFE

First Bank $ 3,766.00 $3,766.00

First Security 1.578.00 1.578.00

First Bank 3.480.00 3.480.00

Visa 2.800.00 2.800.00

TOTAL DEBT $ 11,624.00 ($11,624.00)

NET ASSET $102,272.15

NET DISTRIBUTION $51,136.00 $51,136.00

Both parties filed motions to amend the court’s findings of fact and conclusions of law. Alfred objected to the property valuations adopted by the court and also requested that the maintenance award be eliminated. Dorothy objected to the $4500 furniture award believing such furniture was listed twice as an asset thereby overstating her actual award. Dorothy also requested that the maintenance award be amended to eliminate the requirement that $200 be invested in an IRA each month.

Following oral argument on the motions to amend, the District Court entered its order amending the maintenance award to eliminate the IRA requirement, but adding a provision that maintenance would terminate should Dorothy remarry or cohabit with a man for a period in excess of two months. The court affirmed its judgment in all other respects. Alfred appears and raises the following issues:

1) Did the District Court abuse its discretion in awarding Dorothy maintenance for a period of ten years?

2) Did the District Court abuse its discretion in making the property distribution?

Alfred contends Dorothy is not entitled to maintenance because there are no minor children to support, she is in good health and capable of working, and she received a substantial amount of property from the marital estate. Section 40-4-203, MCA, addresses the question of maintenance and provides for a maintenance award where the recipient spouse is unable to support herself and lacks sufficient property to provide for reasonable needs. Relevant factors in making a maintenance award are: 1) the financial resources of the recipient spouse; 2) the time necessary to acquire sufficient education to find appropriate employment; 3) the standard of living established during the marriage; 4) the duration of the marriage; 5) the age and physical and emotional cpndition of the recipient spouse; 6) the ability of the spouse providing the maintenance to meet his own needs.

A review of the record makes it clear the District Court considered all the relevant factors listed in Section 40-4-203, MCA, in determining the maintenance award. Alfred has substantial income and is capable of paying $400 monthly maintenance. Dorothy has moved to Spokane and is temporarily unemployed. Based upon her training and education, the job Dorothy obtains will not supply adequate income to meet the standard of living she enjoyed during the marriage. As noted by the District Court, Dorothy worked in the home and raised children for 20 years in addition to holding secretarial jobs to supplement the family income. The District Court has broad discretion in determining maintenance awards and this Court will not reverse the District Court unless clearly erroneous. In Re the Marriage of Schenck (Mont. 1984), [213 Mont. 310,] 692 P.2d 6, 41 St.Rep. 2137. We find no abuse of discretion by the District Court in making the monthly maintenance award.

The next issue is whether the property distribution was equitable. Alfred contends the District Court erred in speculating as to the parties’ future income and ability to acquire property. This is incorrect. Section 40-4-202, MCA, specifically states the court shall consider “the opportunity for each for future acquisition of capital assets and income.” In this instance, the District Court properly considered the parties’ potential future incomes, as well as insurance and IRA protections.

The District Court correctly valued Alfred’s retirement and profit sharing plans based on the evidence before it. The court’s computation placed an up to date value on these plans rather than the 1984 figure submitted by Alfred. We find no error.

The District Court’s findings of fact reveal that the factors listed in Section 40-4-202(1), MCA, were considered by the court in making the distribution. The property distribution awarded an identical net amount to each party. The record clearly supports the property distribution.

The valuations adopted by the District Court regarding the parties’ furniture, vehicles, and other items, were those submitted by Dorothy in her proposed findings of fact. Alfred disputed several of Dorothy’s valuations yet he failed to place a value on these items in his proposed findings of fact. The District Court adopted Dorothy’s valuations finding them to be more reasonable. We will not set aside the District Court’s findings of fact unless clearly erroneous. There is substantial credible evidence supporting the valuations listed in the property distribution.

The record reveals the District Court judgment to be sound in all respects. Affirmed.

MR. CHIEF JUSTICE TURN AGE. and MR. JUSTICES WEBER, SHEEHY and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    MORRIS THORING, as Personal Representative of PATTY JEAN THORING, Deceased, Morris Thoring as Guardian of Shawn Michael Thoring, surviving heir to Patty Thoring and NATIONAL FARMERS UNION INSURANCE COMPANY, a corporation, Plaintiffs and Respondents, v. EARL L. LaCOUNTE and Janice C. LaCounte, d/b/a Lenny’s Bar, and Michael J. Bottensek, Defendants and Appellants.
    No. 86-466.
    Submitted on Briefs Dec. 4, 1986.
    Decided Feb. 9, 1987.
    733 P.2d 340.

      Crowley, Haughey, Hanson, Toole & Dietrich, Donald L. Harris, Billings, for defendants and appellants.
    Bjella, Neff, Rathert, Wahl & Eiken, A1 Wahl & William E. McKechnie, Williston, N.D., for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

On petition for rehearing, appellants LaCounte have called to our attention the District Court’s certification of the issue of res judicata pursuant to Rule 54(b), M.R.Civ.P., and we find that the same is ripe for appeal. Accordingly, we withdraw our earlier opinion of January 8, 1987 and substitute the opinion below.

The LaCountes appeal the order of the District Court, Fifteenth Judicial District, County of Roosevelt, denying their motion for summary judgment. We dismiss the appeal and remand for further proceedings.

This case is a wrongful death action arising out of an automobile accident which occurred September 20, 1980, three miles west of Williston, North Dakota. The facts of this case have been set out previously by this Court in Nehring v. LaCounte (Mont. 1986), [219 Mont. 462,] 712 P.2d 1329, 43 St.Rep. 93. The plaintiff in this action, however, is the father of Patty Thorinq, who was killed while a passenger in the car of defendant Michael Bottensek. The father seeks damages from LaCountes as owners of Lenny’s Bar for negligently serving liquor to the allegedly intoxicated Bottensek, whose driving later that evening killed three people when his car crossed over the centerline of U.S. Highway 2 and collided with an oncoming vehicle driven by Mr. Nehring.

Thoring filed suit in North Dakota and in Montana on behalf of Patty Thoring’s estate and on behalf of Patty’s son Shawn. The suit in North Dakota was ultimately dismissed with prejudice in 1984. LaCountes then moved the Montana District Court for summary judgment on the grounds that the North Dakota judgment of dismissal with prejudice was res judicata on the Montana action. The Montana District Court granted partial summary judgment in favor of LaCountes as to the issue of the applicability of the North Dakota Dram Shop Act, but denied summary judgment as to LaCountes’ liability under Montana law. For the purposes of this appeal, the District Court certified its judgment on the issue of res judicata as a final judgment pursuant to Rule 54(b), M.R.Civ.P. Roy v. Neibauer (1980), 188 Mont. 81, 610 P.2d 1185.

The issues raised by LaCountes on appeal are: 1) Whether the doctrines of res judicata and full faith and credit preclude the plaintiff from relitigating claims previously dismissed with prejudice by the North Dakota trial court?; 2) Whether the Montana District Court erred in denying LaCountes’ motion for summary judgment?

We turn first to the issue of res judicata, which we find to be dispositive of the issues on appeal. As we stated in Brault v. Smith (Mont. 1984), [209 Mont. 21,] 679 P.2d 236, 238, 41 St.Rep. 527, 529, “[t]he basic proposition embraced by the doctrine of res judicata has always remained the same: a party should not be able to relitigate a matter he or she has already had an opportunity to litigate.” The application of res judicata presumes a judgment was rendered on the merits of the case, the policy being that a lawsuit should bring not only justice to the parties, but also provide a final resolution to the controversy. Id. at 238, 41 St.Rep. at 529.

The LaCountes argue that under the full faith and credit clause of the United States Constitution, Article IV, Section 1, U.S. Const., and under Montana law, Section 26-3-203, MCA, the effect of the judgment of the North Dakota action must have the same effect in our Court as it does in North Dakota. They argue that North Dakota law should guide the interpretation of the effect of the North Dakota judgment and res judicata.

Under the full faith and credit clause of the United States Constitution, and Section 26-3-203, MCA, a valid judgment rendered in one state must be recognized in a sister state. Restatement (Second) of Conflict of Laws Section 93 (1971). What issues are determined by a valid judgment is determined by the local law of the state where the judgment was rendered. Restatement (Second) of Conflict of Laws Section 95, comment c. Local law dictates whether or not a judgment was made on the merits, and other states will recognize a judgment not on the merits only as to the issues actually decided. Restatement (Second) of Conflict of Laws Section 110, comment b.

In North Dakota, an issue is considered res judicata when it appears the issue presented in a later suit was litigated and decided. Dolajak v. State Auto. & Cas. Underwriters (N.D. 1977), 252 N.W. 180, 182-83; followed in Rugby Milling Co. v. Logosz (N.D. 1977), 261 N.W.2d 662; Matter Of Estate of Nelson (N.D. 1979), 281 N.W.2d 245; Becker v. Doubek (N.D. 1980), 292 N.W 2d 72; Farmers State Bank v. Slaubaugh (N.D. 1985), 366 N.W.2d 804. “The doctrine of res judicata is not applicable as to issues and facts not considered or decided in prior proceedings.” Farmers State Bank v. Slaubaugh, 366 N.W.2d at 807. Further, the North Dakota Supreme Court has stated “that a decision rendered on any ground which does not involve the merits of the action may not be used as a basis for the operation of the doctrine of res judicata.” Robertson Lumber Co. v. Progressive Contractors, Inc. (N.D. 1968), 160 N.W.2d 61, 77.

With these principles in mind, we turn to the record in the North Dakota action to see what issues were decided in that action. Thoring filed a complaint in a wrongful death suit pursuant to the laws of North Dakota and the laws of Montana. In their answer, the LaCountes raised the affirmative defense of lack of personal jurisdiction. They then moved for summary judgment on the ground of lack of personal jurisdiction over them, and the inapplicability of the North Dakota Dram Shop Act to them. The North Dakota District Court denied LaCountes’ motion, finding that it had personal jurisdiction and that the North Dakota Dram Shop Act applied. LaCountes appealed this order to the North Dakota Supreme Court in Thoring v. Bottensek (N.D. 1984), 350 N.W.2d 586.

The North Dakota Supreme Court declined to reach the issue of personal jurisdiction, narrowly holding that a Montana bar could not be liable under the North Dakota Dram. Shop Act. Thoring v. Bottensek, 350 N.W.2d at 591. The court expressly stated, “Our holding today is strictly limited to the determination that North Dakota’s dram shop act applies only to North Dakota vendors. We make no determination regarding the possibility of the Montana court reconsidering its previous rulings.” (Emphasis added.) Id. The court declined to make Montana law, remarking that the LaCountes could be held liable only under Montana common law, which could be created only by a Montana court. Id. at 588. The North Dakota Supreme Court then reversed the trial court’s order.

On August 13, 1984, the North Dakota District Court entered its order for judgment of dismissal “[pjursuant to the mandate of the Supreme Court of the State of North Dakota, dated June 19, 1984, in the above entitled matter, and the opinion of the Supreme Court filed May 23, 1984 . . . .” We find the record clearly reveals that the sole issue fully litiqated in the North Dakota courts was the issue of whether North Dakota’s Dram Shop Act applied extraterritorially to the LaCountes. The issue of the the liability of the LaCountes under Montana law was never litigated or decided. As to the issue of the extraterritorial effect of the North Dakota Dram Shop Act, we hold the judgment was decided on the merits, and under the full faith and credit clause and Section 26-3-203, MCA, relitigation is barred under the doctrine of res judicata. However, as to the issue of LaCountes’ liability under Montana law, we hold the liability issue was not litigated and decided in the North Dakota courts, and the Montana courts are free to examine the issue.

The second issue raised by LaCountes is whether their motion for summary judgment was properly denied by the Montana District Court. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Reagan v. Union Oil Co. of California (Mont. 1984), [208 Mont. 1,] 675 P.2d 953, 956, 41 St.Rep. 131, 134. The duty of the trial court on a motion for summary judgment is to decide whether genuine issues of fact exist, not how those factual issues are to be decided. Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615.

In this case, the District Court granted LaCountes’ motion as to the . second claim of Thoring’s complaint, which alleged LaCountes’ liability under the North Dakota Dram Shop Act. However, the District Court allowed Thoring’s claims as to the alleged negligence of LaCountes under Montana law to go forward. Generally, factual issues relating to negligence are not susceptible to summary judgment. Hendrickson v. Neiman (Mont. 1983), [204 Mont. 367,] 665 P.2d 219, 222, 40 St.Rep. 909, 912. In this case as with Nehring u. LaCounte, factual questions remain to be answered. LaCountes’ motion for summary judgment was properly denied by the District Court.

The order of the District Court is affirmed, and the cause is remanded to the District Court for further proceedings.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, WEBER, GULBRANDSON and HUNT concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROGER LUKE BELL, Defendant and Appellant.
    No. 85-509.
    Submitted Sept. 12, 1986.
    Decided Jan. 9, 1987.
    731 P.2d 336.

      Allen Beck, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen argued, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Billings, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Roger Luke Bell, defendant and appellant, was charged by information filed on June 28, 1984, in the District Court of the Thirteenth Judicial District, Yellowstone County, with two counts of deliberate homicide. The information alleged that Bell purposely or knowingly killed Linfred Cattnach and James McBride. Upon a plea of not guilty, trial began on February 11, 1985. After extended deliberations, the jury returned a verdict of guilty on both counts. Bell was sentenced to two 100-year sentences for the homicides. The court also designated him as a dangerous offender and gave him an additional ten years on each count. Bell appeals from the verdict and sentence. We affirm.

On June 22, 1984, two men, Linfred Cattnach and James McBride, were found dead in an alley behind a building located in Billings, Montana. The Billings Police Department was contacted the morning of June 22 by an individual who reported that two men were dead in an alley. Upon investigation, police officers discovered the bodies behind stacks of large tires located near the wall of a building. An autopsy revealed that both men had sustained multiple stab wounds to their chests and each man’s throat had been severely cut.

During the evening of June 21,1984, Bell and John Marshall began walking the streets of Billings drinking wine. Eventually they walked into an alley which had large tires stacked near the wall of a building. Cattnach and McBride were sleeping in the alley behind the tires. Sam Lionshows was also sleeping in the same area. Lion-shows testified that he woke up when Bell jerked his blanket off of him. Bell was holding a knife, and he told Lionshows to leave. Lion-shows got up, rolled up his bedroll, and then left.

After Lionshows had left, Bell and Marshall walked about a block away from the tires and sat on a cement slab behind a building. They finished drinking the bottle of wine they had. Marshall testified that Bell then said that he was going to make a “statement” about white guys coining across the tracks. He took off his shoes and started walking across the tracks in the direction of the alley where the tires were. Marshall followed him to that alley. He testified that Bell went behind the tires where McBride and Cattnach were sleeping, and he saw Bell bent over. He then saw Bell moving his arm up and down and heard a gurgling noise. Because he had seen Bell, with a knife earlier that night, he believed that Bell was stabbing the two men. Marshall felt sick, so he went back to the cement slab where he and Bell had been drinking earlier.

A short time later, Bell returned to the cement slab where Marshall was sitting. Bell stated that he had enough money for a jug. Marshall testified that Bell took off his socks and put his shoes back on. He noticed that Bell’s white socks were stained. As they began to leave, Bell washed blood off of his hands with water from a plastic bottle he had.

Richard Anderson and Sam Lionshows found Cattnach and McBride the morning of June 22. Anderson testified that they went to the men to get some money for a bottle of wine. After finding the two men, they notified the police of the apparent murders.

Sometime later that same day, Marshall spoke with Detective Waters of the Billings Police Department in the parking lot of the Arcade Bar. Waters was questioning people about the killings. Marshall took Waters and other officers to the alley where the men were killed and to the slab where he and Bell had sat the night before. At the slab, Marshall pointed out the white socks that Bell had been wearing.

Bell was arrested on June 23, 1984. He gave a statement to the police the following day wherein he denied any knowledge of the killings. The trial began on February 11, 1985. After extensive deliberations, the jury found Bell guilty of the murders of Cattnach and McBride. Other facts will be brought out where necessary to the discussion.

Appellant has raised six issues on appeal:

1. Was appellant denied due process of law under the Fourteenth Amendment and the right of confrontation under Article II, Section 24, 1972 Mont. Const., by the court’s refusal to allow him to introduce character evidence and evidence of prior acts of Sam Lion-shows and John Marshall?

2. Did the District Court err by allowing the testimony of Detective Hinkel regarding statements made to him by Leland Lockwood?

3. Was appellant prejudiced by an improper view of the scene of the crime by certain members of the jury?

4. Is the verdict supported by substantial credible evidence?

5. Did the District Court commit error by giving the jury an additional instruction during deliberations?

6. Was appellant properly designated a dangerous offender under Section 46-18-404, MCA?

I

During the cross-examinations of Marshall and Lionshows, appellant attempted to question them regarding their propensity for violence, use of drugs and past acts of violent behavior for the expressed purposes of demonstrating that it was those two who committed the murders rather than appellant. However, the court sustained an objection by the State to this line of questioning. Appellant contends that this ruling denied him his constitutional right to confront the witnesses against him and his right to due process of law.

This Court has not been confronted previously with the argument being raised by appellant; i.e., whether a defendant may properly assert as a defense the allegation that another person committed the crime for which he is accused. Our statutes do not address this issue either. Other states facing this question, however, have allowed a defendant to present evidence showing that a person other than the defendant committed the crime. See, e.g., State v. Hamlette (1981), 302 N.C. 490, 276 S.E.2d 338; State v. Smith (Mo. 1964), 337 S.W.2d 241. Whether a defendant should be allowed to assert such a defense, and if so, what would be the parameters of acceptable proof under that defense, is an issue which is not ripe for decision at this time.

Rule 103, M.R.Evid., provides:

“(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
“(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”

At no time during the trial did appellant make an offer of proof of facts pointing directly to the guilt of Marshall and Lionshows. Even on appeal, he has not pointed to any specific facts indicating that they committed the crimes. Rather, he has merely attempted to show that they have violent dispositions and use drugs, but even these assertions are unsupported. Without any other facts connecting Marshall and Lionshows to the murders of Cattnach and McBride, these contentions are irrelevant. Therefore, because no proper offer of proof was made, appellant cannot claim as error the court’s ruling sustaining the State’s objection.

II

Appellant contends that the court erred in allowing Officer Hinkel to testify to statements made to him by Leland Lockwood. He argues that because Lockwood had no memory of his conversation with Hinkel, he was denied his right of effective cross-examination. He contends further that Lockwood’s prior inconsistent statement should not have been admitted as substantive evidence because there was no assurance of trustworthiness of the statement.

Initially, appellant’s first assertion is flawed because it is unsupported by the facts. The .State called Lockwood in its case-in-chief. On direct examination, it asked Lockwood whether he knew Bell and whether he had talked to police officers at the Billings Police Department concerning statements made to him by Bell. In response to these questions, Lockwood unequivocally declared that he did not know Bell, had not talked to him at anytime, and did not talk to any police officer about Bell. Thus, contrary to appellant’s contention, Lockwood did not profess an inability to remember whether or not he talked to police officers. Appellant’s contention on this point is wholly without merit.

We now proceed to determine whether Lockwood’s prior inconsistent statement can be used as substantive evidence. After Lockwood had denied talking to Officer Hinkel, the State called Officer Hinkel to testify to the substance of Lockwood’s prior statement to him. He testified that Lockwood spoke with him on June 23 about the homicides. Lockwood told Hinkel that he talked with Bell on the morning of the 22nd, and Bell told him that Bell had hurt someone real bad- Lockwood asked Bell where he had hurt someone, and Bell told him that it was down by the tires.

First, we must determine whether Hinkel’s testimony is inadmissible hearsay under our rules of evidence. Hinkel testified to a statement made to him by Lockwood which, in turn, was made to Lockwood by appellant. The substance of appellant’s statement to Lockwood as related by Hinkel is clearly admissible under Rule 801(d)(2), M.R.Evid. Appellant’s statement to Lockwood to the effect that he hurt someone real bad down by the tires is an admission by a party-opponent and is not hearsay. Likewise, Lockwood’s statement to Hinkel is admissible under Rule 801(d)(1), M.R.Evid., as a prior statement by a witness. That section provides:

“(d) Statements which are not hearsay.' A statement is not hearsay if:
“. . . The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony . . .”

Lockwood was the declarant. He testified at the trial and was cross-examined concerning the prior statement to Hinkel. The statement he gave to Hinkel was inconsistent with his testimony at trial. Therefore, Lockwood’s statement to Hinkel was not hearsay, and the latter was properly allowed to testify as to its substance at trial.

This same result was reached in a case very similar to the one at bar. In State v. Dolan (Mont. 1980), 620 P.2d 355, 37 St.Rep. 1860, the defendant was accused of robbing a truck stop at gun point. A few days after the holdup, defendant allegedly told one Steele that the Canadian money he had was part of the money he got from the robbery. At trial, Steele could not remember whether defendant told him, “I got the money from the Crossroads,” or “I robbed the Crossroads.” Later, Detective Warrington testified that Steele told him that defendant said, “I held up the Crossroads.” This Court held: “This evidence is not hearsay . . . The statement made by defendant to Steele is an admission by a party opponent to the action. The statement made by Steele to Warrington is a prior statement of the witness Steele.”

Dolan, 620 P.2d at 358-359. See also State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343.

A further issue that arises in allowing Lockwood’s prior inconsistent statement to be used as substantive evidence is whether such use violates the confrontation clauses of the Montana and United States Constitutions.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . .” The Montana Constitution, in substantially similar language, grants the same right. The primary purposes behind both of these provisions was to prevent an accused from being convicted solely on the basis of ex parte affidavits or depositions. See Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409. It was originally believed and it still is that the best method for obtaining the truth is to have the witness testify under oath at trial and be subjected to cross-examination under the scrutiny of the jury. It is only in this manner that a jury can assess the credibility of a declarant and measure the believability of his statements. Consequently, “it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause.” California v. Green (1970), 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-1935, 26 L.Ed.2d 489, 496.

Where a declarant testifies at trial and either affirms the prior inconsistent statement as his and now gives a new story or denies that he ever made such a statement, the jury has before it two conflicting statements from the same declarant. The defendant has the opportunity to cross-examine the declarant and have him explain why he is giving a statement inconsistent with his prior one. Under such intense cross-examination, literally confrontation, of the witness, the jury has a sufficient basis . to test the truth of the prior and present statements of the declarant. It may choose to believe the prior statement or the statement given at trial, or it may give little weight to either statement. Thus, the defendant’s right to confront the witness against him has not been abridged.

The United States Supreme Court adopted this view almost twenty years ago in California v. Green, supra. There, one Melvin Porter was arrested for selling marijuana, and he named Green as his supplier. However, at trial, Porter claimed that he was uncertain whether or not Green had been his supplier. The State then called Officer Wade who testified that Porter had named Green as his supplier in an earlier statement to Wade. This testimony was admitted as substantive evidence. The Court held:

“For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.”

Green, 399 U.S. at 162, 90 S.Ct. at 1937. See also, Nelson v. O’Neil (1971), 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222. We hold that Lockwood’s prior inconsistent statement was properly admitted as substantive evidence.

Finally, we address briefly appellant’s contention that prior inconsistent statements can be admitted only when they have an assurance of trustworthiness even where the declarant testifies at trial. Appellant does not cite any authority to support his novel argument, and we have not found any. Concerns with the reliability of a statement normally arise only when the declarant is unavailable to testify at trial. There is no need for a statement to possess a certain “indicia of reliability” in- order to be admitted into evidence when the declarant testifies at trial and is subject to full and effective cross-examination. As the Court explained in Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608:

“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ ” [Emphasis added.] Therefore, because Lockwood testified at trial, it was unnecessary for the court to weigh his prior statement for a certain measure of reliability.

Ill

After the jury had begun deliberations, the bailiff informed the court that some of the jurors may have visited the scene of the crime. However, within an hour of being informed, and before the court could take any action on the matter, the jury reached its verdict. Subsequently, the court questioned each juror under oath to discover what had occurred. The court discovered that two of the jurors went to the scene of the crime during the trial and discussed their observations with the jury during deliberations. Appellant contends that this unauthorized view constitutes reversible error and prejudiced him because the amount of light available in the alley and the angle of view of Marshall were essential facts in the case.

There is no question that the unauthorized view by the two jurors constituted misconduct. Section 46-16-502, MCA, provides that the jury may view the scene only upon order of the court. Moreover, it is universally held throughout the country that unauthorized views by one or more jurors constitutes misconduct. However, unlike the rule in most states which places the burden on the defendant to show that he was materially prejudiced by an unauthorized view, the rule in Montana has been to presume that the defendant was prejudiced. See 58 A.L.R.2d 1147, 1148. The burden is then placed on the State to rebut that presumption. This standard was announced in State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202:

“It is the rule in this state that if jury misconduct is shown tending to injure the defendant, prejudice to the defendant is presumed; however, the presumption is not absolute and may be rebutted by the use of testimony of the jurors to show facts which prove that prejudice or injury did not or could not occur.”

Upon examination of the jurors, it was determined that two jurors visited the scene. One of them went during a lunch recess because he was curious. He stayed there about one minute. Because he went during the day, he did not have an opportunity to observe the lighting conditions. Furthermore, the investigating officers had moved all of the tires in the alley after taking pictures, so no comparisons could be made between testimony and actual observation. The only arguable issues relating to the scene were the lighting conditions vis-a-vis Marshall’s ability to see appellant and the height of the stacks of tires. Since this juror could not observe either of these conditions, no prejudice to appellant could have occurred.

However, the other juror visited the scene during the evening and stayed about one and one-half minutes. This juror did observe the lighting conditions in the area, although he did not conduct any experiments or make any measurements. Officer O’Brien of the Billings Police Department testified at the hearing on the matter that he visited the scene during the trial and during jury deliberations. He also visited the scene the night after the crimes had occurred. At that time, five lights in the area of the alley were working, whereas during the trial, some of those lights were not working. Thus, the lighting conditions during the trial were worse than they were on the night the crimes occurred. Therefore, on the question of Marshall’s perception, the juror’s observations would have worked to appellant’s benefit because it was harder to see in the alley during the trial than it was on the night of the crimes.

The District Court found that appellant was not prejudiced by the improper view taken by the two jurors. We find no error in this ruling. The State rebutted the presumption of prejudice to appellant.

Before we proceed to the next issue, however, a comment about the jury misconduct which occurred here is in order. It cannot be emphasized enough that jurors should not visit the scene of the crime except by order of the court. It is the duty of the trial judge to make sure such misconduct does not occur. Judges should be ever vigilant in impressing upon jurors their responsibility not to have unauthorized views of the scene. In many cases, an improper view would be highly prejudicial to a defendant and would merit a new trial. Consequently, it is a foremost duty of the trial court to impress upon jurors, backed up by the court’s contempt power, the rule that unauthorized views of the crime scene shall not be allowed.

IV

Appellant next raises the argument that the verdict is not supported by substantial credible evidence. The applicable standard on this issue was set forth in State v. Cornell (Mont. 1986), [220 Mont. 433,] 715 P.2d 446, 447, 43 St.Rep. 505, 506:

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

The jury heard testimony from John Marshall who testified to seeing appellant bent over the victims making repeated stabbing motions. Marshall also testified that when appellant returned from the alley, his socks were stained and he washed blood off his hands.

The jury also heard testimony from FBI agent Joseph Errera regarding tests he performed on Bell’s clothing. He testified that on the items of clothing taken from Bell there were numerous spots of blood and it was possible that McBride or Cattnach were the source. He also performed tests on the socks which were found in the area where Marshall and appellant had been drinking wine. These were the socks that appellant took off after coming back from the alley. Blood on one of the socks could have come from Cattnach but could not have come from appellant nor McBride. Blood on the other sock could have come from McBride or appellant, but could not have come from Cattnach.

Appellant argues that Marshall is not a credible witness. The jury had an opportunity to observe Marshall on examination and cross-examination and apparently believed his version of what happened. Whether a witness is credible or not is a matter solely within the province of the jury. It is not the duty of this Court to make a de novo review of the evidence; rather, we must determine only whether substantial evidence supports the verdict. In this case, reasonable minds could have concluded that appellant committed the crimes with which he was charged.

V

After the jury had been deliberating for over a day, the foreman sent a note to the judge stating that the jury was unable to reach a verdict. The court asked the foreman if an additional instruction would be of any help in reaching a verdict, and the foreman replied that it might; whereupon, the court gave the jury the following instruction:

“The judicial process assigns tasks to the various units. It is the task of the witnesses to testify truthfully as they recall the facts. It is the task of the lawyers to prepare the case for final submission to the tryer [sic] of facts, the jury. It is the task of the judge to preside, instruct you as to the law and to rule on the admissibility of the evidence. It is the task of the jury to decide the case. The ultimate responsibility of the jury is to render a verdict in this cause. You are not partisan nor are you advocates in this matter, but you are the judges; you are the only judges of the facts; it is you and you alone that can render a verdict in this cause. There is no reason to believe that any other 12 men and women would possess anymore ability, intelligence and courage to do the ultimate task assigned to a jury under the American System of Justice.

“The final test of the quality of your service will be in the verdict which you return to the Court. It is only by rendering a verdict in this cause that you make a definite contribution to efficient judicial administration as you arrive at just verdict. I have never asked, as a matter of fact, I have instructed you, that you should not surrender your honest convictions in this matter for the mere purpose of returning a verdict, or solely because of the opinion of other jurors, but this does not mean that you should avoid a task assigned to you of rendering a verdict of guilty or not guilty in this cause.”

After approximately eleven hours of further deliberations, the jury reached a verdict.

Appellant contends that the court erred in giving this instruction because it was, in effect, a direction to the jury to enter a finding of guilty or not guilty. This argument is completely without merit. As the emphasized portion of the instruction shows, the court told the jurors not to surrender their honest convictions in order to reach a verdict. Furthermore, this instruction is almost a verbatim recital of the instruction given in State v. Cline (1976), 170 Mont. 520, 555 P.2d 724. The Court in that case approved that instruction. Appellant has not provided any reason why we should not continue to approve that instruction. No error was committed on this point.

VI

Appellant was designated a dangerous offender pursuant to Section 46-18-404, MCA. He contends that this designation is error because the court failed to articulate the reasons for such finding in its judgment.

Section 46-18-404(3), MCA, provides:

“If the court determines that an offender is not eligible to be designated as a nondangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the judgment . . .”

This court stated in its judgment and commitment that sentence is imposed for the following reasons:

“1. The Court carefully read and considered the presentence report and is aware that defendant’s prior history shows a pattern of illegal activity including numerous misdemeanor offenses and felony convictions for Burglary and Criminal Mischief.
“3. The Court agrees with the statement made by the County Attorney’s office that this was a very vicious crime.
“4. The evidence which the jury considered and which this Court heard indicates that the victims, who were stabbed many times and their throats slashed at a time when they were asleep, were innocent of any provocation.
“6. Defendant’s history and the facts of the crimes for which he is today sentenced establish that he does represent a substantial danger to society.”

Not only did the court adequately articulate its reasons for finding appellant dangerous in its judgment, but also the reasons stated are more than sufficient to designate appellant as a dangerous offender. Appellant’s contention on this point is frivolous.

For the reasons stated above, the judgment is affirmed.

MR. JUSTICES HARRISON, MORRISON, SHEEHY, WEBER, GULBRANDSON and HUNT concur.


text:
    LEON J. ODENBACH, Claimant and Appellant, v. BUFFALO RAPIDS PROJECT, d/b/a Irrigation Project Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 85-551.
    Submitted on Briefs April 24, 1986.
    Decided Jan. 13, 1987.
    731 P.2d 1297.

      Lloyd E. Hartford, Billings, for claimant and appellant.
    Crowley Law Firm, Terry G. Spear, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Leon Odenbach was injured in an industrial accident in May 1978. In December 1984, Mr. Odenbach filed a petition with the Workers’ Compensation Court essentially requesting the conversion of all his future permanent total disability benefits into a lump sum payment. The Workers’ Compensation Court awarded Mr. Odenbach a partial conversion of future benefits. Mr. Odenbach appealed and the State Compensation Insurance Fund cross-appealed. We affirm the Workers’ Compensation Court in part, reverse in part, and remand for proceedings pursuant to this opinion.

The issues presented to us are:

1. Can the 7% discount of lump sum conversion of future permanent total disability benefits found in Section 39-71-741, MCA, as amended, be applied to claims arising out of injuries occurring before April 15, 1985, or would that application violate a claimant’s constitutional rights?

2. Can the procedural requirements in Section 39-71-741, MCA, as amended, be applied to claims arising out of injuries occurring before April 15, 1985?

3. Did the Workers’ Compensation Court err in granting in part and denying in part Mr. Odenbach’s request for a lump sum conversion of his future permanent total disability benefits?

Leon Odenbach (claimant) suffered an industrial injury arising out of and in the course of his employment with Buffalo Rapids Project on May 10, 1978. Mr. Odenbach is permanently disabled. Buffalo Rapids Project was enrolled with the State Compensation Insurance Fund (State Fund) on the date of the injury. State Fund accepted liability for Mr. Odenbach’s claim and began paying benefits in June 1978. On December 13, 1984, claimant filed his petition for hearing with the Workers’ Compensation Court requesting a lump sum award of $80,000 to purchase an annuity. In addition, the claimant requested a lump sum award of $17,230.25 for the following purposes:

a. $6,723.00 to retire his mortgage on his home;

b. $2,660.00 to replace his refrigerator, kitchen range, washer and dryer;

c. $4,324,28 to pay off the installment contract on his energy efficient windows;

d. $1,874.97 to pay off the installment contract on his new furnace;

e. $768.00 to complete remodeling of his basement, and;

f. $880.00 to replace his dentures.

The Workers’ Compensation Court found that the claimant was entitled to a lump sum award of $6,199.25 to pay off the installment contracts of his energy efficient windows and his new furnace. In addition, the claimant was entitled to an annual lump sum sufficient to cover the aggregate amount of his existing insurance policies which were currently costing the claimant $217 a month. Finally, the claimant was found to be entitled to an $880 lump sum to replace his dentures. The Workers’ Compensation Court found that the claimant was not entitled to the remaining lump sum amounts requested for his house because:

“These items and amounts are not necessary for the claimant to sustain himself financially, and thus, do not fall within the purview of MCA 39-71-741.”

The Workers’ Compensation Court also stated regarding the requested lump sum for the annuity that:

“Claimant is not entitled to a lump sum award for the purchase of an annuity. This Court has routinely denied all annuity requests, reasoning that ‘an annuity request is analogous to the claimant’s request to put an advance of his disability award “on interest”.’ Stelling, WCC No. 8412-2757 (filed June 27, 1985), citing Kent v. Siefert, 158 Mont. 79, 81, 489 P.2d 104 (1971).”

Senate Bill 281 became effective on April 15, 1985. Senate Bill 281 amended Section 39-71-741, MCA, by (1) creating new criteria for establishing the need for a lump sum award; and (2) requiring that lump sum payments of permanent total disability benefits be discounted at 7% for each year of the estimated compensation period. The parties have raised various constitutional and legal issues regarding Section 39-71-741, MCA.

I

Can the 7% discount of lump sum conversions of future permanent total disability benefits found in Section 39-71-741, MCA, as amended, be applied to claims arising out of injuries occurring before April 15, 1985, or would that application violate a claimant’s constitutional rights?

This Court has recently decided this issue. In Buckman v. Montana Deaconess Hospital and State Compensation Fund (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216, we essentially held that the discount provision of Section 39-71-741, MCA, as amended could not be applied to a workers’ compensation injury which occurred prior to April 15, 1985, the effective date of this statute.

Accordingly, we hold that the 7% discount provision found in Section 39-71-741, MCA, cannot be applied to the award for Mr. Odenbach’s injury which occurred prior to April 15, 1985, the effective date of the discounting provision.

II

Can the procedural requirements in Section 39-71-741, MCA, as amended, be applied to claims arising out of injuries occurring before April 15, 1985?

Again, Buckman controls this issue:

“We therefore conclude that the amendments made in 1985 to Sec. 39-71-741(2), MCA, cannot be applied in considering the Buckman application for a lum-sum conversion. We note this is consistent with the 1985 amendments as there is no provision in those amendments stating that any portion should be applied retroactively, with a single exception of the discount provision.”

Buckman, 730 P.2d at 382, 43 St.Rep. at 2219. This holding is consistent with Section 1-2-109, MCA, which provides: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.”

Accordingly, the procedural requirements in Section 39-71-741, MCA, as amended, cannot be applied to Mr. Odenbach’s injury which occurred before April 15, 1985, the effective date of the procedural provisions.

III

Did the Workers’ Compensation Court err in granting in part and denying in part Mr. Odenbach’s request for a lump sum conversion of his future permanent total disability benefits?

We remand this issue for reconsideration by the Workers’ Compensation Court in light of Buckman as well as this opinion. In its reconsideration, the Workers’ Compensation Court should apply the statutes and caselaw in effect on the date of Mr. Odenbach’s injury.

Affirmed in part, reversed in part, and remanded for proceedings pursuant to this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, MORRISON, GULBRANDSON, SHEEHY and HUNT concur.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE MORRISON,

text:
    EDWARD MASSEY and Lucille Massey, his wife, Plaintiffs and Respondents, v. RAY SELENSKY, Defendant and Appellant.
    No. 85-636.
    Submitted on Briefs Dec. 18, 1986.
    Decided Jan. 13, 1987.
    731 P.2d 906.
    Poore, Roth & Robinson, Butte, Donald C. Robinson, for defendant and appellant.
    Bernard J. Everett, Knight, Dahood, McLean & Everett, Anaconda, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Third Judicial District in and for the County of Deer Lodge, Montana, granting plaintiff partial summary judgment. We reverse and remand.

This the second time this case has been before the Court. See Massey v. Selensky (Mont. 1984), [212 Mont. 68,] 685 P.2d 938, 41 St.Rep. 1596. The parties have stipulated to the following facts: Plaintiff/respondent (Massey) and defendant/appellant (Selensky), both employed by the Anaconda Smelter, Anaconda, Montana, rode to work in Selensky’s pickup truck the morning of January 8, 1980. They entered the employer’s premises by the main gate and travailed some distance to the change house or clock house, a small building where the company time clock was located. The building was at an intersection from which various roads led to employee parking lots.

Selensky parked his truck on an inclined area near the clock house and both men walked into the building for the purpose of punching their time cards. Massey punched-in first, shortly after 6:30 a.m., and left the building to walk to the machine shop, where he worked. The shift did not begin until 7:30, but it was his usual practice to punch-in early, drink coffee with fellow employees, change into work clothes, and generally prepare for work. The employer was aware of this practice. As Massey walked toward the machine shop, Selensky’s unoccupied truck rolled backwards down the incline, struck and injured Massey. He filed a claim with the Workers’ Compensation Division for compensation and medical expenses incurred for his injuries. The claim was allowed and Massey received compensation benefits and payment of medical expenses as allowed by law.

Massey and his wife also filed a complaint against Selensky in District Court. Both parties moved for summary judgment. Summary judgment was granted Selensky, and Massey appealed. We reversed and remanded in Massey, supra, ordering the District Court to determine whether Selensky was acting within the course and scope of his employment at the time of the alleged negligence, making him a co-employee immune from suit pursuant to Section 39-71-412, MCA.

Additional discovery was undertaken, and both parties again filed motions for partial summary judgment. Following oral argument, the District Court reversed its first decision and ordered partial summary judgment on the issue of co-employee immunity be entered for Massey. Selensky appeals.

It is appropriate first to emphasize the policy underlying the Workers’ Compensation Act which is to compensate employees for injuries in the work place without regard to fault. In turn an employee relinquishes the right to bring a negligence action against his employer or a fellow employee. A majority of states provide this immunity from common law liability. The principle of enterprise liability was recognized by this Court long before enactment of the co-employee statutory protection. Madison v. Pierce (1970), 156 Mont. 209, 478 P. 2d 860; Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572; State ex rel Morgan v. Indus. Accident Bd. (1956), 130 Mont. 272, 300 P.2d 954. Co-employee protection is a natural extension of enterprise liability and relieves the employee of justifiable apprehension about the possibility of a suit against him. Co-employee immunity is essential to the integrity of the Act.

Our previous decision required only that the District Court focus on Selensky’s status at the time of the alleged negligence. After the first Massey case was handed down, the parties stipulated that Selensky’s negligence occurred at the time he parked his vehicle near the change house, minutes before Massey was hurt. We said previously the proper test for the District Court to determine whether co-worker’s actions were so work related as to make him immune from suit under Section 39-71-412, MCA, is whether he is acting within the course and scope of his employment at the time the negligent acts occurred. Massey, supra, at 940, 41 St.Rep. at 1599.

To determine whether Selensky was acting within the course and scope of his employment at the time he parked his truck, the District Court applied the going and coming rule. Generally, travel by an employee to and from work is outside the course and scope of employment. Gordon v. H.C. Smith Construction Co. (1980), 188 Mont. 166, 612 P.2d 668. Findings of the District Court will be set aside only when they are clearly erroneous. Rule 52(a), M.R.Civ.P. We find it is error to apply the going and coming rule in this case. The parties already had traveled to and arrived at their place of work. Rather, the premises rule should be used. Compensable injuries include those sustained by employees having fixed hours and place of work who are injured while on the premises. See Sieck v. Trueblood (Colo. 1971), 29 Colo. App. 432, 485 P.2d 134, and Stewart v. U.S. (10th Cir. 1982), 716 F.2d 755. The negligent act occurred on the employer’s premises within a reasonable time before the commencement of Selensky’s shift. The conduct of both Massey and Selensky was in accord with accepted practice at the plant, and was in accordance with their repeated and usual procedure. Massey was found to be an employee at the time of the accident. Selensky’s temporarily parking his truck in an area where parking was not permitted is legally insignificant for purposes of determining his status as employee.

When analyzing misconduct for the purpose of determining status, a distinction must be made between prohibited activities outside the boundaries of the ultimate work to be done, such as using a machine to cut paper for employee’s personal use, in violation of company policy, and prohibited methods of doing the work, such as a pilot who, while giving a lesson, flies at an altitude in violation of a rule limiting altitude. Misconduct which involves violation of regulations or prohibitions relating to method of accomplishing a task does not take an employee outside the course and scope of employment. See 1A Larson, Workmen’s Compensation Law, Section 31, pp. 6-8. Parking in a restricted zone on the employer’s property while punching-in had been a common practice of numerous employees over a considerable period of time. Such a practice is not that type of conduct which takes one outside the course and scope of his employment.

We find the negligent act of parking his truck for the purpose of punching-in does not remove Selensky from the co-employee immunity protecting him from common law liability.

We reverse and remand to the District Court for an order consistent with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY and HUNT concur.

MR. JUSTICE MORRISON,

dissenting:

This rather amazing majority opinion flies directly in the face of the first case before this Court entitled Massey v. Selensky (Mont. 1984), [212 Mont. 68,] 685 P.2d 938, 41 St.Rep. 1596. In that case we held there was a fact question about whether Selensky was at work when he temporarily stopped his pickup truck on the employer’s premises. Selensky walked into the clock house to “punch-in” and then was going to return to his vehicle so that he could take it to the employee parking lot. The trial court held that, as a matter of law, Selensky was not at work at the time he stopped the truck. He certainly had not punched in.

This Court finds as a matter of law that Selensky was “on the job” when he temporarily stopped the truck. The very most favorable view to the defense should result in a fact question that must be resolved by the jury. This would require reversing summary judgment in favor of the plaintiff and remanding for a trial.

This Court, in finding there is no fact issue, runs directly contrary to our other decision. If there was no fact question for submission to a jury then the first case should have resulted in summary judgment for the defendant.

The majority opinion is but another example of the inconsistency of approaches emanating from this court. We do not follow the law. We simply make it up as we go.

I vigorously dissent.