text:
    J.L., Plaintiff and Appellant, v. JARET KIENENBERGER, a minor, and RON and PATTI KIENENBERGER, his parents, individually, Defendants and Respondents.
    No. 92-261.
    Submitted on Briefs November 24, 1992.
    Decided February 25, 1993.
    50 St.Rep. 182.
    257 Mont. 113.
    848 P.2d 472.

      JUSTICE TRIEWEILER dissented and filed an opinion in which JUSTICE HUNT concurred.
    For Appellant: John E. Seidlitz, Jr., Great Falls.
    For Respondents: Joseph M. Sullivan; Emmons and Sullivan, Great Falls; Patrick F. Flaherty, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighth Judicial District, County of Cascade, the Honorable John M. McCarvel presiding. Appellant J.L. appeals from an order granting respondents Ron and Patti Kienenberger summary judgment and dismissing with prejudice her complaint against them. We affirm.

On January 19, 1991, Jaret Kienenberger, age 13, entered the home of J.L., age 28, and raped her. At the time he was under the influence of alcohol and marijuana. The incident took place at 11:50 p.m., while J.L. was sleeping on a couch in her living room. J.L. claimed damages for physical and psychological injuries resulting from the assault.

In the ensuing criminal proceedings, Jaret pled guilty to sexual intercourse without consent and was sent to the Yellowstone Treatment Center. J.L. then sued Jaret’s parents on a theory of negligent supervision, alleging that the Kienenbergers owed a duty to her and to others to supervise their child appropriately, and that they had breached that duty by supervising his upbringing so negligently that “it was reasonably foreseeable that he would be a danger to himself and to third parties.”

At the time of the rape, Ron and Patti Kienenberger had been separated for approximately two and one-half years. Jaret had been living alternately with Ron at the family’s original home in Dodson, Montana, and with Patti at her home in Great Falls. He was living with Patti during the 1990-91 school year. Ron and Patti stated in their affidavits that before the fall of 1989 they had no problem with Jaret, and Jaret had no problem in school or with law enforcement. His school records support these statements.

Between October 1989 and October 1990, Jaret was involved in three incidents of minor vandalism, all in Dodson. He and three other youths negligently started a fire after breaking into a storage building to smoke. Again with three other youths, he broke windows in a building and a windshield in a pickup truck. In October 1990, Jaret and three Dodson youths broke into a building and damaged a high school float. Ron Kienenberger stated in his affidavit that when law enforcement officials informed him of these incidents, he punished Jaret.

Patti Kienenberger stated in her affidavit that she was aware of two occasions during the fall of 1990 on which Jaret had been drinking alcohol, and that she grounded him on both occasions. On the night of Saturday, January 19, 1991, she gave Jaret permission to go to a friend’s house to watch television. Instead he went elsewhere and drank alcohol and smoked marijuana. This was the night that he raped J.L.

The primary issue on appeal is whether Ron and Patti Kienenberger were entitled to summary judgment. J.L. presents six issues, but only four are relevant to the primary question. We restate them as follows:

1. Whether the District Court erred in determining that Ron and Patti Kienenberger had no duty to J.L. to supervise their minor child, Jaret, as a matter of law.
2. Whether the District Court erred in holding that even if the Kienenbergers had a duty to J.L., the record does not establish their negligence.
3. Whether the District Court abused its discretion in denying J.L.’s request for an order to release Jaret’s youth court records.
4. Whether the District Court abused its discretion in denying J.L.’s motion to continue the summary judgment hearing, based on incomplete discovery.

Our standard of review for a grant of summary judgment is the same as that initially applied by the trial court under Rule 56, M.R.Civ.P. Graham v. Montana State University (1988), 235 Mont. 284, 287, 767 P.2d 301, 303. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The party moving for summary judgment has the initial burden of showing that there is no genuine issue as to any fact deemed material in light of the substantive principles that entitle the movant to judgment as a matter of law. Fleming v. Fleming Farms, Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Whether or not there is sufficient evidence to raise an issue of fact is a question of law for the court, not a question of fact. Flansberg v. Montana Power Co. (1969), 154 Mont. 53, 60, 460 P.2d 263, 267; Federal Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 513, 808 P.2d 475, 478.

Ordinarily, issues of negligence are not susceptible to summary judgment and are better determined at trial. Henderson v. Pocha (1990), 245 Mont. 217, 219, 799 P.2d 1095, 1097. To sustain a claim for relief based on negligence, however, a plaintiff must prove both negligence and proximate cause. If there is no evidence of any negligent act or omission by defendant, summary judgment is properly granted. Scott v. Robson (1979), 182 Mont. 528, 536, 597 P.2d 1150, 1155; United States Fidelity and Guaranty Co. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589, 49 St.Rep. 372, 373-374.

I

To prevail in her negligence action, J.L. must prove the following elements: a duty owing from the Kienenbergers to herself; a breach of that duty; proximate causation; and damages. Scott, 597 P.2d at 1154. The District Court concluded correctly that J.L. failed to establish the first of these elements. As we affirm the District Court on this issue, we do not address breach of duty or the remaining elements of negligence.

J.L. argues that Montana law imposes a duty on parents to provide proper supervision of their children. She argues that Section 27-1-701, MCA, makes a parent legally responsible for injuries to others occasioned by want of ordinary care in supervising his minor children. This statute, however, creates liability for “want of ordinary care or skill in the management of his property or person.” We decline to extend this principle to the “management” of children.

J.L. also cites Section 41-3-101, MCA, as evidence that parents have a moral and legal duty to provide for their children’s physical, moral, and emotional well-being. As the Kienenbergers correctly point out, however, this statute describes a duty parents owe to their children, not to third parties.

The common-law rule, still followed in Montana, is that a parent is not liable for a child’s tort, except under the limited circumstances provided in § 27-1-718(2), MCA (parent or guardian of a minor convicted of shoplifting is liable to the seller for the greater of $100 or the retail value of the goods, not to exceed $500), and § 40-6-237, MCA (a city, county, school district or state agency may recover up to $2,500 from the parent of a minor who willfully or maliciously destroys its property). Neither of these statutes applies here.

A parent also may be liable under the doctrine of respondeat superior, if the child is the parent’s agent or employee.

The basic principle of liability is agency, and the father cannot be ... held responsible for the negligence of his minor son in the absence of proof of the existence of agency at the time of the accident.

Clawson v. Schroeder (1922), 63 Mont. 488, 495, 208 P. 924, 926. See also Castle v. Thisted (1961), 139 Mont. 328, 363 P.2d 724 (parent not liable for minor child’s negligent driving because driving the car did not make the child the parent’s agent). Here, no argument has been made that Jaret Kienenberger was in any sense his parents’ agent or employee at the time of the assault.

J.L. urges this Court to adopt the doctrine of parental neglect, set forth in Section 316 of the Restatement (Second) of Torts (1965) as an exception to the common-law rule that parents are not liable for their children’s torts. We decline to do so.

Neither this Court nor the Montana legislature has found it necessary in the past to expand these limited exceptions to the common-law rule of nonliability, and we do not find it necessary now. The District Court concluded correctly that Ron and Patti Kienenberger owed no duty to J.L. and therefore are entitled to judgment as a matter of law.

II

J.L. claims that she was unable to prepare adequately for deposition of Ron and Patti Kienenberger because she had been denied access to Jaret’s youth court records. Therefore, she argues, the record was not complete when the District Court granted the Kienenbergers’ motion for summary judgment, and the court should have continued the hearing on the motion.

J.L.’s motion to continue the hearing was based on Rule 56(f), M.R.Civ.P., which follows (emphasis added):

Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had ....

In the affidavit accompanying J.L.’s motion, which was filed the day before the hearing, her lawyer stated that he had deferred deposing Ron and Patti Kienenberger until Jaret’s youth court and subsequent medical and psychological records were available. He stated further that without this discovery, he could not prepare adequately for the depositions or for the summary judgment hearing.

J.L. had asked for Jaret’s youth court records in a request for production on December 6, 1991. When the Kienenbergers objected on the grounds that the records are privileged under the Montana Youth Court Act, Section 41-5-101, MCA et seq., J.L. asked the District Court for an order releasing the records pursuant to Section 41-5-603(l)(c). The Kienenbergers then moved for a protective order, pursuant to Rule 26(c), M.R.Civ.P., or in the alternative for in camera review by the court.

Judge McCarvel reviewed the youth court records in camera. At the summary judgment hearing on March 13, 1992, he granted the Kienenbergers’ motion for a protective order. As grounds for this action, he stated that J.L. already knew, from the Kienenbergers’ affidavits, “all pertinent facts which could be gleaned from Jaret Kienenberger’s youth court file.” Having served as youth court judge in the criminal proceedings against Jaret, Judge McCarvel was in an excellent position to assess the relevance of Jaret’s youth court file.

The District Court has inherent discretionary power to control discovery, based on its authority to control trial administration. State ex rel. Guarantee Insurance Co. v. District Court (1981), 194 Mont. 64, 67-68, 634 P.2d 648, 650. See also In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028 (“denial of the motion [to compel discovery] lies squarely within the District Court’s discretion”). It did not abuse that discretion here.

The issue before the District Court was whether any genuine issue of material fact precluded summary judgment as to Jaret Kienenberger’s parents’liability for J.L.’s injuries. Jaret’s youth court record was not relevant to the issue of his parents’ liability, because that depends, as we have seen, on the existence of a duty to J.L. The Kienenbergers owed no duty to J.L. We hold, therefore, that the District Court properly exercised its discretion granting a protective order covering all the documents in Jaret’s youth court records.

Apart from alleging the importance of Jaret’s youth court records, the affidavit accompanying J.L.’s Rule 56(f) motion did not establish why she needed more time to prepare for deposing the Kienenbergers. Their affidavits were filed on January 28,1992, more than six weeks before the hearing, and both had responded to J.L.’s interrogatories and requests for production by February 11, 1992, more than a month before the hearing. J.L.’s affidavit did not explain why depositions could not have been taken during that month.

We hold that the District Court did not abuse its discretion in tacitly denying J.L.’s Rule 56(f) motion and conducting the summary judgment hearing. In view of the court’s finding that J.L. had obtained all of the available relevant information she needed from the Kienenbergers’ affidavits, her affidavit is unpersuasive and inadequate. As we held in Howell v. Glacier General Assurance Co. (1989), 240 Mont. 383, 785 P.2d 1018, a district court does not abuse its discretion in denying a Rule 56(f) motion that does not establish how the proposed discovery could preclude summary judgment.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, McDONOUGH, and WEBER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority.

Section 27-1-701, MCA, provides that every person is responsible for injury to others caused by his or her failure to exercise ordinary care. The majority casually dismisses this statutory responsibility by claiming that it only applies to each individual’s own conduct. However, when a parent fails to exercise ordinary care in the supervision of his or her child, it is, in fact, the parent’s conduct with which the law is concerned.

I would adopt the proposed rule of law set forth in Restatement (Second) of Torts Section 316 (1965). That rule provides:

Aparent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent:
(a) Knows or has reason to know that he has the ability to control his child, and
(b) Knows or should know the necessity and opportunity for exercising such control.

I would, as has been done in other jurisdictions, limit the application of parental liability under Section 316 to those situations where the parent was aware of the particular dangerous propensity which caused the harm complained of. See Pesek v. Discepolo (Ill. App. 1st Dist. 1985), 475 N.E.2d 3.

As it often does when it finds it convenient, the majority points out that the Legislature has not found it necessary to expand our previous rule of nonliability for parents who fail to exercise reasonable supervision over their children. However, this is a poor excuse for this Court’s failure to recognize the obligation imposed on all people under Section 27-1-701, MCA, and this Court’s responsibility to develop the common law in a manner that both effectuates that obvious public policy, and that is not inconsistent with any other legislative act. See Sections 1-1-108 and -109, MCA. The majority has shown no reluctance to develop common law responsibilities in the absence of legislative action where they are consistent with the majoritys notion of good public policy. See Maguire v. State (Mont. 1992), 254 Mont. 178, 835 P.2d 755, 764, 49 St. Rep. 688, 694 (Trieweiler dissenting), (citing Pence v. Fox (1991), 248 Mont. 521, 813 P.2d 429; Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767; Brandenburger v. Toyota (1973), 162 Mont. 506, 513 P.2d 268; Kornec v. Mike Horse Mining Co. (1947), 120 Mont. 1, 180 P.2d 252).

Furthermore, since there was no Montana precedent in effect at the time this case was decided by the District Court, I would reverse the District Court judgment dismissing the plaintiff’s complaint and remand this case for further discovery so that each party has a fair opportunity to develop those facts necessary to pursue or defend a claim based upon the aforementioned rule of liability.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE MARRIAGE OF STEPHEN W. TAYLOR, Petitioner and Appellant, and JUDITH A. TAYLOR, Respondent and Respondent.
    No. 92-277.
    Submitted on Briefs September 4, 1992.
    Decided February 25, 1993.
    50 St.Rep. 186.
    257 Mont. 122.
    848 P.2d 478.

      JUSTICE TRIEWEILER concurred in part and dissented in part.
    For Appellant: Ward N. Ernst, Stanford.
    For Respondent: Marcia Birkenbuel, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Stephen Taylor appeals from a decree of dissolution from the Tenth Judicial District, Judith Basin County, dividing the marital property of the parties.

We affirm.

We present the issues on appeal in the following order:

1. Was the District Court’s division of the stock clearly erroneous?

2. Was the District Court’s valuation of Stephen’s shares of stock clearly erroneous?

3. Did the District Court err by ordering a cash settlement in lieu of distributing Taylor Honey, Inc., shares of stock to Judith?

4. Did the District Court err by awarding attorney fees when they were not pled and no evidence was submitted to determine if attorney fees were required?

The parties were married on May 13, 1974, in Reno, Nevada. Neither party brought assets to the marriage. Two children were born into the marriage. On February 22,1991, Stephen filed a petition for dissolution. The parties’ only disputes in this case concern the value of Stephen’s stock in the honey business and the award of attorney fees to Judith.

At the time of the dissolution, Stephen was 40 years old and had a high school education. Judith was 36 years old, had a high school education, and had attended a vo-tech school for one year. Throughout their marriage, Judith was primarily responsible for raising the children and maintaining the home. She worked part-time as a waitress and worked in the family honey business. For the past three years, she was employed by the United States Forest Service, earning approximately $13,750 a year.

In 1982, Stephen’s parents formed Taylor Honey, Inc., for the purpose of producing honey. Stephen worked in the business throughout the marriage. It is undisputed that over the years Stephen’s parents gifted stock in the business to Stephen and his brother for estate planning purposes. Stephen received a total of 8969 shares, or 25.9 percent of the corporate stock. Stephen never received any dividends from the stock and earns a yearly salary of approximately $27,000. Only Stephen, his parents, and his brother are shareholders in the business. Stephen and his brother actually run the day-to-day affairs of the business, while the parents work as advisors. At the time of trial, Stephen was president of the corporation.

At trial, Stephen testified that the stock he received was worthless. Stephen’s father testified with some uncertainty that the value of the corporation ranged from $250,000 to $800,000. Both Stephen and his father testified as to their future business concerns regarding government regulations, and troubles with mites and African bees which could affect the viability of the business.

On the other hand, Stephen’s expert testified that the net value of the business was between $458,878 and $646,878. He discounted Stephen’s share of the stock by 20 percent because it was a minority share, and valued the stock from $95,000 to $134,033. Judith’s expert witness valued the business between $900,000 to $950,000 and valued the stock between $230,000 to $245,000. Financial statements entered into evidence valued the business over the last five years between $1,000,000 and $1,400,000.

In its decree, the District Court valued the corporation at approximately $917,000. The court concluded that as a result, Stephen’s 25.9 percent share of stock amounted to $237,500. The court determined that the stock was marital property and awarded Judith a $109,483 cash settlement for her share of the marital estate. The court allowed Stephen the option of paying Judith’s share of the marital estate in a cash settlement of four annual installments of $25,000 each, with 10 percent interest and $25,000 down. The court allowed Judith to encumber Stephen’s stock if the need arises. The court allowed Stephen to offset his payments on the parties’ home mortgage against the $109,483. The court also ordered Stephen to pay Judith’s attorney fees. Stephen appeals the decree.

I.

Was the District Court’s division of the stock clearly erroneous?

Our standard of review regarding the division of the marital estate has recently changed to the following:

In the past, this Court has employed an abuse of discretion standard in reviewing a lower court’s determination of the appropriate division of the marital estate. This Court has recently clarified that our standard of review in regard to the factual findings of the district court relating to the division of marital property is whether the district court’s findings are clearly erroneous.

In re Marriage of Danelson (Mont. 1992), 253 Mont. 310, 833 P.2d 215, 219, 49 St. Rep. 597, 599.

Section 40-4-202(l)(a)-(b), MCA, requires the court to consider the nonmonetary contributions of a spouse when dividing the marital estate and whether such contributions facilitated the maintenance of the property. The statute also mandates that the court examine whether the division of the marital estate serves as an alternative to maintenance. Section 40-4-202(l)(c), MCA.

Stephen contends that he did not make monetary contributions to the stock, nor did he facilitate the maintenance of the stock. He contends that, as a result, it would have been impossible for Judith to contribute to the value of the stock, and the stock should not be included as part of the marital property. We disagree.

There is substantial evidence to support the court’s finding that both Stephen and Judith contributed to the maintenance of the honey business stock. Stephen is a minority shareholder in the company with only four employees. He works 16 hour days, seven days a week, in making the business a going concern. Stephen also takes the bees to California in the fall of each year for approximately two months to pollinate certain crops. In addition, he is the president of the company.

Judith’s contributions were of equal importance. She maintained the household and took care of the children for 17½ years. The record reflects that on occasion she also worked for the company. Judith’s nonmonetary contributions as a homemaker facilitated the maintenance of the honey business because Stephen would not have been able to devote the considerable time and effort the business required were it not for Judith’s caring for the children and the home. The court did not grant Judith a maintenance award and the division of the marital property served as an alternative to maintenance. We hold that the District Court’s division of the marital property was not clearly erroneous.

II.

Was the District Court’s valuation of Stephen’s shares of stock clearly erroneous?

Stephen attacks the District Court valuation of the honey business stock at $237,500. In our review of a district court’s valuation of marital property, we have established several principles which guide us. When there is a dispute over property in a marriage dissolution, the district court may assign any value that is within the range of values presented into evidence. In re Marriage of Kramer (1987), 229 Mont. 476,747 P.2d 865. However, if the values are widely conflicting, then the district court must state its reasons for determining a certain value. In re Marriage of Glass (1985), 215 Mont. 248, 697 P.2d 96.

In this instance, the evidence of the value of Taylor Honey, Inc., ranged from practically zero to $1,400,000. The evidence indicated the value of Stephen’s shares ranged from zero to $245,000. The court valued Stephen’s shares at $237,500. Apparently, the District Court averaged the high and low figures offered by Judith’s expert to arrive at $237,500. This value falls within the ranges presented at trial.

In addition, the court gave its reasons for its valuation, stating that it believed the family’s fear of African bees and mites was merely speculation and did not pose a current threat which would reduce the value of the business. In addition, the court stated that it also considered the company’s financial statements, which presented a higher valuation of the corporation than those presented by the parties’ expert witnesses.

Stephen also maintains that the District Court did not take into account all of the company’s liabilities. Specifically, he charges that the court failed to take into account tax liabilities that he would incur because he would be forced to sell his shares of stock in order to make the necessary cash payments for Judith’s share of the marital estate. We held in In re Marriage of Lee (1991), 249 Mont. 516, 519, 816 P.2d 1076, 1078, that the court must take into account tax liabilities for a court ordered distribution which results in a taxable event that precipitates a “concrete and immediate tax liability.” Unlike Lee, no evidence was introduced at trial relating to a concrete and immediate tax liability that Stephen might incur if he were to sell his shares of stock. In addition, there was no evidence introduced at trial that Stephen would have to sell his stock in order to pay any cash award to Judith, nor was he ordered to do so by the court.

Stephen also contends that the District Court did not properly discount the value of his stock because he is a minority share holder. Stephen’s expert witness discounted Stephen’s shares of stock 20 percent because he was a minority shareholder. On the other hand, Judith’s expert did not apply any discount to the value of the stock. The expert explained that he did not apply a discount to Stephen’s shares because he was basing his values on the corporation’s underlying assets and not on the market value of the stock. We have stated that it would be inappropriate to discount stock when the value of the corporation was arrived at by determining the market value of the underlying assets. In re Marriage of Buxbaum (1984), 214 Mont. 1, 8, 692 P.2d 411, 414.

Finally, Stephen argues that the court failed to take into account the debentures issued to Stephen’s parents as a formal debt of the corporation. The record indicates that the debentures were not consistently reported in financial statements, nor did the corporation pay these debts on a regular basis. Therefore, they did not constitute a formal debt of the corporation. We hold that the District Court’s valuation of Stephen’s shares of stock in Taylor Honey, Inc., was not clearly erroneous.

III.

Did the District Court err by ordering a cash settlement in lieu of distributing Stephen’s shares of stock to Judith?

Stephen assails the District Court’s order requiring a cash settlement. He contends that after paying child support, he is left with only $14,796 to meet the rest of his obligations under the order, as well as bis own living expenses. The record reveals that Taylor Honey, Inc., is a closely held family corporation. Only Stephen, his brother, and their parents have shares in the corporation. Stephen and his brother control the day-to-day operation of the business, plus they also determine when to pay dividends to stockholders. The corporation has not paid dividends since its inception, nor is it expected to pay dividends in the future. If Judith were to receive an in-kind distribution of stock, she would not likely receive any benefits. In In re Marriage of Johnson (1986), 223 Mont. 383, 726 P.2d 322, we were faced with a similar factual situation. In that case, we held that it was proper for the District Court to award a cash settlement in lieu of an in-kind distribution of stock where the spouse was part of a closely held family corporation. Johnston, 726 P.2d at 324. We hold that the District Court did not err by ordering a cash settlement in lieu of distributing shares of stock.

IV.

Did the District Court err by awarding attorney fees when they were not pled and no evidence was submitted to determine if attorney fees were required?

Stephen maintains that the court’s award of attorney fees was in error because Judith did not request attorney fees in the pleadings and no evidence was presented to determine if an award of attorney fees was necessary.

Section 40-4-110, MCA, grants the district court the discretion to award reasonable attorney fees after considering the financial resources of both parties. Absent an abuse of discretion, this Court will not overturn the district court’s decision denying attorney fees. In re Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. We have stated that although the statute does not specifically require that attorney fees be pled, it would be good practice to so. In re Marriage of Johnsrud (1977), 181 Mont. 544, 572 P.2d 902.

Judith did not request attorney fees in her pleading. However, at the end of her complaint she did request “for such further relief as the Court deems just and proper.” In a recent case, we held that such language allowed the District Court to grant a larger maintenance award than that pled by the wife. In re Marriage of Eide (1991), 250 Mont. 490, 821 P.2d 1036. We concluded that Rule 54(c), M.R.Civ.P, provided:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

Eide, 821 P.2d at 1039. Rule 54(c), M.R.Civ.P, grants the district court discretion which must be viewed according to the circumstances of the case. Eide, 821 P.2d at 1039.

In its findings, the court considered the financial resources of the parties and concluded that Stephen should pay Judith’s reasonable attorney fees. We hold that the District Court did not err in awarding reasonable attorney fees to Judith.

We affirm.

JUSTICES GRAY, McDONOUGH, and WEBER concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusions that it was reasonable to include Stephen’s stock in the marital estate and divide it between the parties; the District Court’s valuation of the stock was not clearly erroneous; and the District Court did not err by awarding attorney fees, even though they were not specifically sought by the pleadings.

I dissent from the part of the majority opinion which affirms the District Court’s judgment ordering that a cash settlement be paid to Judith in lieu of her share of the marital estate’s stock in Taylor Honey, Inc.

I conclude that the only reasonable way to distribute the value of the stock is an in-kind distribution. If the stock has a marketable value, then Judith can sell it as well as Stephen. If the stock is not marketable, then Stephen cannot convert it to cash any more than Judith, and there was no evidence that he had any other assets, nor sufficient income with which to pay Judith $109,000 in cash at the rate of $25,000 per year.

Excluding the shares in Taylor Honey, Inc., Stephen was awarded property from the marital estate with a net value of $2876. There was no evidence that he had any other property.

His net yearly income, after payment of federal and state taxes, is $21,538. However, from that income he has a yearly child support obligation of $6742, leaving him approximately $14,000 per year with which to pay all of his living expenses.

The family residence was awarded to Judith, so presumably Stephen will have to pay for other living arrangements out of the remaining disposable income that he has.

Only four witnesses testified regarding the value or transferability of the stock in the family business. Both Stephen and his father testified that there was no market for the stock.

Stephen’s expert witness, Dan Vuckovich, testified that he doubted the stock was marketable. Even Judith’s expert, Nicholas Bourdeau, denied that he had come to any conclusion that the stock could be sold.

The predicament in which Stephen is left by the District Court’s judgment is compounded by the fact that the District Court accepted the appraisal from Judith’s expert, which was based on the value of the business assets. The only way for Stephen to obtain the cash with which to satisfy the District Court’s decree would be to sell the business assets, or some portion of them. There was no evidence that the business could continue to generate the kind of income which is necessary for Stephen to pay child support and his own living expenses if he is forced to sell off some of the assets which are necessary to generate business income.

Maybe the majority and the District Court are aware of some means by which Stephen can raise $25,000 a year to satisfy the District Court decree and still meet his child support obligation and pay his own living expenses. However, I have been unable to make that determination from anything that is found in the record on appeal.

Therefore, I conclude that there was no substantial evidence to support the District Court’s judgment that $109,000 in cash should be paid to Judith in lieu of her interest in the stock in Taylor Honey, Inc., that was included in the marital estate.I would reverse that part of the District Court judgment and remand for purposes of amending the decree to award Judith the appropriate number of shares in the family corporation.


author: DISTRICT JUDGE HARKIN

text:
    PATRICIA WISHER, Plaintiff and Appellant, v. WILSON A. HIGGS and WILSON A. HIGGS, M.D., P.C., Defendants and Respondents.
    No. 91-216.
    Submitted September 30, 1992.
    Rehearing Denied April 26, 1993.
    Decided March 2, 1993.
    50 St.Rep. 191.
    257 Mont. 132.
    849 P.2d 152.

      For Appellant: Craig Stephan (argued), Phoenix, Arizona; Ann German, Libby.
    For Respondents: I. James Heckathom (argued) and Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, Kalispell.
   DISTRICT JUDGE HARKIN

sitting for JUSTICE TRIEWEILER delivered the Opinion of the Court.

The plaintiff, Patricia Wisher, appeals from a jury verdict rendered in a medical malpractice action tried in the Eleventh Judicial District Court, Flathead County. The defendant, Dr. Wilson Higgs, stipulated prior to trial that the preponderance of medical testimony established that Ms. Wisher incurred an injury during a surgery that he performed on November 14, 1979. Specifically, Ms. Wisher sustained a dehiscence, or hole, in her left inner ear following a left facial nerve decompression procedure. Dr. Higgs also stipulated that the preponderance of medical testimony established that the surgical result obtained was below the standard of care. The District Court ruled that this was negligence as a matter of law. Dr. Higgs presented a statute of limitations defense to the action.

The sole issue submitted to the jury was whether the tolling provisions of § 27-2-205, MCA, were met. Through the use of a special verdict form, the jury found by a preponderance of the evidence that (1) prior to November 1,1981, through the use of reasonable diligence, Ms. Wisher should have discovered her injury, and that her injury may have been caused by the surgery; and (2) prior to November 1, 1981, Dr. Higgs’s conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that her injury may have been caused by the surgery.

We affirm in part, and reverse and remand in part for a new trial on the issue of damages.

We restate the dispositive issues as follows:

1. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury’s finding that Ms. Wisher, through the exercise of reasonable diligence, should have discovered before November 1, 1981, (i) her injury, and (ii) that her injury may have been caused by the surgery.

2. Whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury’s finding that Dr. Higgs’s conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1, 1981.

On September 3, 1979, Patricia Wisher presented herself to the emergency room at Kalispell Regional Hospital complaining of a headache and paralysis on the left side of her face. She was diagnosed with Bell’s palsy, a disease process affecting the seventh cranial nerve. Ms. Wisher initially sought follow-up care from a Kalispell neurologist named Dr. Schimpff on September 5, 1979. After ruling out cranial pathology, Dr. Schimpff recommended that she follow-up with Dr. Higgs, a Kalispell otolaryngologist.

Ms. Wisher was initially examined by Dr. Higgs on September 6, 1979. When her condition failed to improve with the use of steroids and the passage of time, Dr. Higgs recommended that Ms. Wisher undergo left facial nerve decompression surgery. This surgery was performed at Kalispell Regional Hospital on November 14, 1979.

In the immediate post-operative period Ms. Wisher experienced symptoms of pain, nausea, dizziness, loss of equihbrium, vomiting, and buzzing in her left ear. Dr. Higgs attributed these symptoms to the side effects of anesthesia and to a condition known as post-operative labyrinthitis, an inflammatory process of the inner ear canal which he attributed to the surgical procedure itself. Dr. Higgs noted that this condition persisted in spite of the use of labyrinthine suppressant drug therapy. He discharged Ms. Wisher from the hospital on November 18, 1979.

When Ms. Wisher returned to Dr. Higgs’s office on November 30, 1979, for an exam, Dr. Higgs noted that the symptoms of post-operative labyrinthitis remained at that time. He continued the labyrinthine suppressant therapy and instructed her to follow-up in two weeks. The exam on December 17, 1979, revealed that Ms. Wisher’s balance had improved; however, her hearing problem remained unchanged. Dr. Higgs ordered her to continue the labyrinthine suppressant therapy and to return to his office in two months. She returned on February 22, 1980. Her condition remained unchanged.

On February 28, 1980, Dr. Higgs wrote a letter to Dr. Schimpff informing him that Ms. Wisher suffered from a post-operative labyrinthitis; however, he stated that he expected her to experience further improvement with the passage of time. Ms. Wisher returned to Dr. Higgs’s office on March 6, 1980, for complaints of facial pressure, sore throat, and sneezing; and on June 2, 1980, for a left occipital neuralgia (headache). She did not return to Dr. Higgs’s office for the remainder of 1980, 1981, or the first eight months of 1982. According to her testimony, during this period of time she experienced some improvement in her symptoms. This testimony is uncontradicted by the defense.

Thereafter, on September 20, 1982, Ms. Wisher returned to Dr. Schimpff’s office complaining of headaches, nausea, balance dysfunction, and tinnitus. Dr. Schimpff scheduled her for a posterior fossa CT scan to rule out the possibility of a cranial tumor. When a tumor was ruled out, he referred her back to Dr. Higgs for evaluation of continued tinnitus and decreased hearing in the left ear. She returned to Dr. Higgs’s office on September 24, 1982, with complaints of increased left ear pressure and tinnitus. Dr. Higgs continued to treat her symptomatology as post-operative labyrinthitis at that time.

In early January 1983, Ms. Wisher requested a referral from Dr. Higgs for her continuing symptoms. Dr. Higgs referred Ms. Wisher to Dr. J.V.D. Hough of Oklahoma City, Oklahoma. He wrote a letter to Dr. Hough on January 6, 1983, which provided his assessment of Ms. Wisher’s ongoing problem:

Post operatively, [Ms. Wisher] developed what I felt was an acute labyrinthitis, in as much I was not aware of any fistula into the inner ear. Post operatively, she experienced rather dramatic return of facial function, and gradual improvement of her balance disturbance over a period of a few weeks. She continued to have hearing loss however, with a certain degree of tinnitus ....
In mid 1980 she developed left occipital neuralgia which required medical therapy. She continued to improve with the exception of her hearing and tinnitus during the interval until she was seen this Fall.
[I]n September of 1982, [she gave a history of] having heaviness in the right arm with decreased rapid alternating movements noted on physical examination. She was left with a mild synkinesis of the left side of the face, no nystagmus, and the Weber on the forehead lateralized to the right, indicating severe hearing loss in the left [ear]. She further had left occipital nerve tenderness. ACT head scan was then performed to exclude other CNS pathology and this was essentially normal.

Ms. Wisher did not follow-up with Dr. Hough in Oklahoma, but instead she saw physicians and chiropractors in Oregon and California. The record reveals that Ms. Wisher suffered from headaches, cervical spine pain, and TMJ pain prior to her surgery in 1979. Her testimony revealed that she sought continued therapy for these problems, and that she was unsure as to which medical condition was causing her symptoms. Ms. Wisher’s final office visit with Dr. Higgs was on March 28, 1983, when she presented with complaints that her jaw was clamping. Dr. Higgs noted that her ears were okay. He provided a dental consultation.

Dr. Peq'essy, a general practice dentist in Kalispell, began treating Ms. Wisher on May 16, 1983. He referred Ms. Wisher to both Dr. Windauer, a Kalispell orthodontist, and Dr. Bertz, an oral and maxillofacial surgeon in Scottsdale, Arizona, who ultimately performed multiple surgeries on both her left and right temporomandibular joints. Dr. Bertz testified that he was unable to distinguish whether the dizziness from which Ms. Wisher was suffering was attributable to the surgery by Dr. Higgs or whether it was symptomatic of her concurrent TMJ problems. He noted that the inflammation process around the TMJ and the semicircular canals of the inner ear were close in proximity and he could not rule out which process was causing her dizziness.

Dr. Bertz consulted with several Scottsdale, Arizona, physicians concerning Ms. Wisher’s symptoms, including neurologists, Dr. Goodell and Dr. Reese, and an otolaryngologist, Dr. Weiss. Dr. Goodell initially suspected that Ms. Wisher suffered from a progressive neurologic phenomena. However, after ruling this out by CT scan, he was of the opinion that Ms. Wisher suffered from residual hearing loss and facial weakness as a result of a viral neurologic lesion (the Bell’s palsy) she suffered four years previously. In other words, he attributed the symptoms to the underlying Bell’s palsy pathology and not pathology associated with injury to the inner ear during surgery. Dr. Weiss, the consulting otolaryngologist, was unable to diagnose a dehiscence in the inner ear.

Ms. Wisher saw another otolaryngologist named Dr. Nowak on January 24, 1984. Dr. Nowak performed an audiogram which revealed sensorineural deafness of a moderately severe degree in her left ear. He informed both Ms. Wisher and Dr. Bertz at that time that in his medical opinion this patient suffered from an injury to the horizontal canal of her left inner ear. In his opinion Ms. Wisher sustained this injury during facial nerve decompression surgery in 1979.

Ms. Wisher filed an Application for Review before the Medical Legal Panel on November 1,1984, eight months after learning of this medical opinion. After the Medical Legal Panel heard the matter and rendered its decision on March 1,1985, Ms. Wisher filed a complaint in District Court on March 29, 1985.

Dr. Nowak’s medical opinion was not confirmed by diagnosis until 1989. A scan performed on April 28,1989, in Scottsdale, Arizona, and read by a radiologist by the name of Dr. Cook, revealed that “the lateral semicircular canal appear[ed] discontinuous in the axial plane.” A repeat scan performed in 1990 at St. Joseph’s Hospital and Medical Center, and read by Dr. Bird, revealed a “dehiscence of the lateral portion of the left lateral semicircular canal.”

I

The first issue presented by Ms. Wisher is whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury’s finding that, through the use of reasonable diligence, she should have, prior to November 1, 1981, discovered (i) her injury, and (ii) that her injury may have been caused by the surgery. The standard of review used by this Court on an appeal based upon insufficient evidence is to determine whether the evidence is “substantial” enough to support the verdict. Guenther v. Finley (1989), 236 Mont. 422, 426, 769 P.2d 717, 720. Substantial evidence is relevant evidence which a reasonable person could accept as adequate to support a conclusion. Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 42, 710 P.2d 1342, 1348-49. This Court recognizes that the jury is in the best position to weigh the evidence and consider the credibility of the witnesses, and, therefore, an examination of the sufficiency of the evidence must be made in a light most favorable to the prevailing party. Rock Springs Corp. v. Pierre (1980), 189 Mont. 137, 145-46, 615 P.2d 206, 211.

The substantive principles at issue in this case concern the tolling provisions in the statute of limitations for medical malpractice actions addressed in § 27-2-205, MCA:

(1) [An] action in tort... for injury... against a physician or surgeon ... based upon alleged professional negligence... or for an act, error, or omission, shall ... be commenced within 3 years after the date of injury or 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last, but in no case may such action be commenced after 5 years from the date of injury. However, this time limitation shall be tolled for any period during which there has been a failure to disclose any act, error, or omission upon which such action is based and which is known to the plaintiff or through the use of reasonable diligence subsequent to said act, error, or omission would have been known to him.

The District Court instructed the jury in the law regarding this statute of limitations and its tolling provisions in Jury Instruction No. 14:

A statute of the State of Montana provides that an action against a physician or surgeon based upon alleged professional negligence must be commenced within three (3) years after the date of injury, or three (3) years after the Plaintiff discovers or, through the exercise of reasonable diligence should have discovered the injury, whichever occurs last.
For purposes of this action the Court has previously determined that the Defendant injured Plaintiff on November 14, 1979. The date that the Plaintiff actually discovered her injury had been caused by the surgery is January 24, 1984. The Plaintiff filed her action on November 1, 1984.
In this case the date of injury is (1) the date Plaintiff discovered or reasonably should have discovered her injury, and (2) that her injury may have been caused by the surgery. It is not necessary that Plaintiff be aware of the full extent of her injury, the details thereof, or the underlying cause. It is sufficient if Plaintiff knows generally that she has suffered harm and that the Defendant caused it.

Prior to providing the jury with this instruction, both parties submitted point briefs to the District Court addressing the statute of limitations issue in medical malpractice discovery cases. Dr. Higgs contends that the District Court appropriately applied the law in Major v. North Valley Hosp. (1988), 233 Mont. 25, 759 P.2d 153, in formulating the instruction given.

On appeal, Ms. Wisher argues that the court incorrectly instructed the jury on the law, in that the statute of limitations is tolled until a plaintiff discovers the legal cause of an injury. Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 501, 771 P.2d 956, 962. Ms. Wisher argues that there was a lack of evidence at trial to support a finding by the jury that through the use of reasonable diligence she should have discovered the legal cause of her injury prior to November 1, 1981.

Dr. Higgs argues that there was substantial evidence presented during trial that Ms. Wisher discovered her injury immediately following surgery on November 14, 1979, when she awoke with symptoms inconsistent with her pre-surgical state, and that she knew the symptoms constituted the injury which was caused by the surgery. Dr. Higgs argues that because Ms. Wisher knew the legal cause of her injury on the day of surgery, and because the statute of limitation in a medical malpractice claim is not tolled until a plaintiff discovers a legal right to bring an action for known injuries, Ms. Wisher’s claim fails on the grounds that the statute of limitations has run.

The statute of limitations in any given case generally begins to run upon the occurrence of the last wrongful act relevant to the cause of action. The statute of limitations is not tolled until a plaintiff discovers her legal right to bring an action for known injuries. Major, 759 P.2d at 157; E.W. v. D.C.H. (1988), 231 Mont. 481, 487, 754 P.2d 817, 820. Nor is the statute tolled until a plaintiff learns the facts out of which a known cause of action arose. Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 121, 713 P.2d 992, 994. However, the application of those general rules becomes difficult where an injured person is prevented from knowing of his injury by concealment or other circumstances. Bennett, 713 P.2d at 995. In such cases, this Court has recognized certain exceptions which toll the statute of limitations until the injury is discovered. Those exceptions include factual situations where a negligent act is concealed, Monroe v. Harper (1974), 164 Mont. 23, 28, 518 P.2d 788, 790; and where the plaintiff has sustained an injury which by its nature is self-concealing. Johnson v. St. Patrick’s Hospital (1966), 148 Mont. 125, 417 P.2d 469, aff’d after remand, 152 Mont. 300, 448 P.2d 729; Grey v. Silver Bow County (1967), 149 Mont. 213, 425 P.2d 819.

The facts in the present case are clearly distinguishable from those found in either Major or E. W. in that the wrongful act in both of those cases was easily identifiable and the injury simultaneous and obvious. In contrast, the present case involves an alleged negligent act which by its nature manifests an injury that is self-concealing. The uncontradicted evidence reveals that Ms. Wisher did not have knowledge on the day of her surgery that her post-operative symptoms were caused by negligence on Dr. Higgs’s part. On the contrary, the symptoms experienced by Ms. Wisher in the post-operative period were attributed to the surgical complication referred to as post-operative labyrinthitis, a condition that would resolve with the passage of time. Although Ms. Wisher perceived the symptoms, the knowledge that those symptoms were causally connected to negligent acts on Dr. Higgs’s part was absent. As stated, this Court recognizes that self-concealing injuries of this type can preclude a strict application of the statutory bar.

Ms. Wisher urges this Court to adopt the holding from Hando, 771 P.2d at 962, as controlling in this case. Hando is this Court’s most recent opinion interpreting the discovery rule as it applies to the statute of limitations in § 27-2-204, MCA. In Hando, the plaintiff immediately suspected that the symptoms she experienced after inhalation of paint fumes in 1981 constituted an injury, and she began to diligently pursue an opinion from multiple medical experts; however, she was not provided with a definitive diagnosis until 1984. She filed an action in October of 1985. The district court denied the defendant’s motion for summary judgment on the statute of limitations issue, holding that the statute of limitations was tolled until a medical diagnosis confirmed the causal connection between Hando’s “ailments” or “symptoms” and her alleged injury. On appeal, this Court affirmed the district court on that issue. Hando, 771 P.2d at 962. Although the facts in Hando are distinguishable from the facts in the present case, the subtle similarity between the cases is apparent by the self-concealing nature of the injury.

Self-concealing injuries present unique roadblocks to a litigant’s discovery of an injury. Prior to the enactment of § 27-2-205, MCA, in 1971, this Court applied the discovery doctrine in medical malpractice cases involving self-concealed injuries. In Johnson, a medical malpractice case in which a physician left a surgical sponge in a patient’s hip, this Court held:

Where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of the foreign object in his body. [Citation omitted.]

Johnson, 417 P.2d at 473. The Court viewed the date of discovery as the date on which the plaintiff obtained actual knowledge of the cause of the drainage from his hip. The drainage from the hip was the symptom of the injury, and not the injury itself. The striking similarity between the Johnson case and the present case is the plaintiffs’ lack of awareness of the causal relationship between the injuries and the symptoms.

The second case applying the discovery doctrine to a self-concealing injury involved a plaintiff who underwent surgery on his leg at Silver Bow Hospital in Butte, Montana, on August 23, 1961. Grey, 425 P.2d at 819. On October 18, 1961, the plaintiff sought medical treatment from a Philipsburg physician. When the physician cut a hole in the plaintiff’s cast revealing the incisional site, he discovered a staph infection. The plaintiff subsequently filed a medical malpractice claim on October 19, 1964, claiming failure to use proper sterile technique during the surgical procedure. The district court granted the defendant’s motion for summary judgment on the grounds that the plaintiff had not filed within the statute of limitations. This Court reversed, and in analogizing Johnson held:

[T]here is a distinct factual difference between leaving a sponge in a patient’s body by a surgeon and introducing infection into a patient’s body due to a hospital’s failure to employ proper sterile techniques during an operation. [However]... this distinction fails to recognize the real similarity between the two acts. The similarity is the fact that the patient does not know of his own condition — be it introducing the infection or leaving the sponge

Grey, 425 P.2d at 820. In Grey, we announced the equitable limitation of the discovery rule of giving full scope to the statute of limitations on the one hand, and according a reasonable measure of justice to the plaintiff on the other. Grey, 425 P.2d at 821. In balancing those opposing interests, this Court has consistently tolled the statute of limitations in self-concealing injury cases until the plaintiff discovers, or in the exercise of reasonable care and diligence should have discovered, his or her injuries. Our decision in Hando reflects this need to accord justice to a plaintiff who, even though exercising due diligence, is unable to find a causal connection between symptoms and injury. In the present case, there is a complete lack of evidence in the record to establish that Ms. Wisher causally connected the injury, or the dehiscence in her left inner ear, to her symptoms of hearing loss, dizziness, vertigo, and loss of balance. This is particularly evident within the immediate eighteen-month period of time post-operatively.

However, as stated, the District Court’s instruction to the jury in applying the tolling provisions in this case provided:

[I]t is not necessary that Plaintiff be aware of the full extent of her injury, the details thereof, or the underlying cause. It is sufficient if Plaintiff knows generally that she has suffered harm and that the Defendant caused it.

At the close of evidence, the parties submitted proposed jury instructions on the law of the case. The court refused Ms. Wisher’s proposed instruction which addressed the tolling provisions of § 27-2-205, MCA. However, Ms. Wisher did not specifically object to Jury Instruction No. 14. Generally, a failure to object to a jury instruction at the trial level amounts to a waiver of the right to raise the objection on appeal. State v. Holzapfel (1988), 230 Mont. 105, 113, 748 P.2d 953, 957. The instruction which is given without objection becomes the law of the case. Nicholson, 710 P.2d at 1356.

In addition, Ms. Wisher failed to raise the issue of the propriety of the special verdict form by objection at the time of its presentation to counsel. On appellate review, where no objection is raised to the special verdict form before its submission to the jury, the Court will not review the sufficiency of the form for the first time on appeal. Weinberg v. Farmers State Bank of Worden (1988), 231 Mont. 10, 19, 752 P.2d 719, 724. Based on the foregoing, this Court must examine the sufficiency of evidence in view of the law of the case as provided to the jury. Having done that, this Court holds there is a total lack of evidence to support the verdict that Ms. Wisher knew generally that she suffered an injury prior to November 1, 1981, or that Dr. Higgs caused it.

Prior to November 1, 1981, Ms. Wisher knew she suffered from Bell’s palsy, post-operative labyrinthitis, chronic headaches, cervical spine pain, and symptoms associated with a temporomandibular joint dysfunction. This is supported by the evidence in the medical record exhibits and testimony of Dr. Wilson, Dr. Higgs, the medical record exhibits of Kalispell Regional Hospital, and the testimony of Ms. Wisher. There is a lack of evidence that she knew or suspected that she suffered from an injury as the result of her surgery, or that through the use of due diligence she could have determined the cause of the multitude of ongoing symptoms which she was experiencing. This is particularly evident in light of Ms. Wisher’s uncontradicted testimony that she experienced an improvement in her symptoms beginning the last half of 1980 up through the first eight months of 1982. Ms. Wisher did not see Dr. Higgs during this period of time. In fact, there was no evidence submitted by the defense that she saw other doctors for those symptoms during that period of time.

We hold that there is a lack of substantial evidence, including expert medical evidence, in the trial record to support the jury’s finding that Ms. Wisher, through the exercise of reasonable diligence, should have discovered before November 1, 1981, (i) her injury, and (ii) that her injury may have been caused by the surgery.

II

The second issue presented by Ms. Wisher is whether there is substantial evidence, including expert medical evidence, in the trial record to support the jury’s finding that Dr. Higgs’s conduct did not prevent her from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1,1981.

The District Court’s instruction to the jury in applying the tolling provision under the concealment doctrine provided:

[I]n those cases wherein Plaintiff has been prevented from knowing of her injury by concealment or other circumstances, certain exceptions exist. The Montana statute ... provides that in such cases the time limitation shall be extended for any period for which the Defendant has failed to disclose any act, error or omission upon which such action is based and which is known to him or through the use of reasonable diligence subsequent to said act, error or omission would have been known to him.
To suspend the operation of the statute of limitations the concealment must be of such a character as to prevent inquiry, escape investigation, or mislead or hinder acquisition of information disclosing a right of action.

Ms. Wisher argues that the uncontradicted evidence established that Dr. Higgs concealed material facts about her health care that bore directly upon the existence of the cause of action. Specifically, Dr. Higgs failed to disclose to her his awareness that her symptoms may have been the result of an injury sustained during surgery, and he failed to disclose to her the knowledge that she experienced a sensorineural hearing loss post-operatively. Ms. Wisher cites case law from other jurisdictions which recognize a relationship of trust and confidence between a physician and a patient which rises to the level of a fiduciary relationship, and which she argues required Dr. Higgs to fully disclose facts regarding her health care. Hoopes v. Hammargren (Nev. 1986), 725 P.2d 238; Duquette v. Superior Court (Ariz. App. 1989), 778 P.2d 634; Estate of Leach v. Shapiro (Ohio App. 1984), 469 N.E.2d 1047; and Peralta v. Martinez (N.M. 1977), 564 P.2d 194, cert. denied, 567 P.2d 485.

Dr. Higgs argues that because he no longer was treating Ms. Wisher, nor did he try to prevent her from receiving separate medical opinions, there is a lack of evidence to suggest that he fraudulently concealed the injury. In order to have concealed the injury there must be substantial evidence of concealment between the date of surgery on November 14,1979, and November 1,1981. Following six months of follow-up, Ms. Wisher discontinued office visits to Dr. Higgs until September of 1982. Dr. Higgs did not treat Ms. Wisher from June 2, 1980, through November 1, 1981. Dr. Higgs denied knowledge of surgical injury to Ms. Wisher’s inner ear until he was shown the results of a CT X-ray during his deposition in 1989.

The leading Montana case addressing the issue of fraudulent concealment in a medical malpractice case is Monroe v. Harper (1974), 164 Mont. 23, 518 P.2d 788. Although this Court found the doctrine of fraudulent concealment inapplicable given the facts of the case, Monroe addresses circumstances in which an injured person is prevented from knowing of his injury due to concealment of facts by a treating physician, or a situation where the injury, by its nature, is difficult to discover until a later date.

[M]ost courts give recognition to certain implied exceptions which toll the running of the statute when it can be shown that fraud had been perpetrated upon the injured party sufficient to place him in ignorance of his right to a cause of action or to prevent him from discovering his injury. [Citation omitted.] The purpose is to promote equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law when he has so conducted himself that it would be contrary to equity and good conscience to avail himself of his legal defense. [Citation omitted.]
To toll the statute of limitations the fraud must be of such a character as to prevent inquiry, elude investigation, or to mislead the party who claims the cause of action. [Citation omitted.] There must first be injury and then concealment. It is the cause of action which must be fraudulently concealed by failing to disclose the fact of injury from malpractice, by diverting the patient from discovering the malpractice that is the basis of the action. [Citation omitted.]

Monroe, 518 P.2d at 790.

The language of § 27-2-205, MCA, however, indicates that simply the failure to disclose facts, as opposed to affirmative, fraudulent concealment, is sufficient to toll the statute:

[T]his time limitation shall be tolled for any period during which there has been a failure to disclose any act, error, or omission upon which such action is based and which is known to the plaintiff or through the use of reasonable diligence subsequent to said act, error, or omission would have been known to him.

The evidence presented as to the concealment issue in this case is conflicting and ultimately rests upon the credibility and weight to be afforded each witness’s testimony. As stated, the standard of review employed by the Supreme Court on an appeal alleging insufficiency of evidence is to determine whether the evidence is “substantial” enough to support the verdict. Guenther v. Finley (1989), 236 Mont. 422, 426, 769 P.2d 717, 720. The evidence may be inherently weak and still be considered substantial. Wheeler v. City of Bozeman (1988), 232 Mont. 433, 437, 757 P.2d 345, 347. In addition, when conflicting evidence exists, the credibility and weight to be given to the conflicting evidence is within the province of the jury. Wheeler, 757 P.2d at 347. Because the evidence presented on this issue furnishes reasonable grounds for different conclusions, the findings of the jury will not be disturbed. Rock Springs Corp. v. Pierre (1980), 189 Mont. 137, 146, 615 P.2d 206, 211.

Based upon the foregoing, we hold that there was substantial evidence to support the jury’s finding that Dr. Higgs’s conduct did not prevent Ms. Wisher from exercising due diligence in discovering her injury or that it may have been caused by the surgery prior to November 1, 1981.

Affirmed in part, reversed in part, and remanded in part for a new trial on the issue of damages.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, HARRISON, McDONOUGH and WEBER concur.


author: JUSTICE McDONOUGH

text:
    SIGRID M. GREYTAK, Plaintiff, Respondent and Cross-Appellant, v. RegO COMPANY, a Delaware corporation; and BUTLER MANUFACTURING COMPANY, a Delaware corporation, Defendants and Appellants.
    No. 92-093.
    Submitted on Briefs September 24, 1992.
    Rehearing Denied April 1, 1993.
    Decided March 2, 1993.
    50 St.Rep. 204.
    257 Mont. 147.
    848 P.2d 483.

      For Appellant: Norman L. Newhall, Floyd D. Corder, Alexander, Baucus & Linnell, Great Falls.
    For Respondent: Ward Swanser, Moulton, Bellingham, Longo & Mather, Billings; William C. Callaham, Donahue & Callaham, Sacramento, California; J. Michael Jordan, Beirne, Maynard & Parsons, Houston, Texas.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal of an order of the Thirteenth Judicial District Court, Yellowstone County. The order granted plaintiff’s motion for a new trial and denied plaintiff’s motion for judgment notwithstanding the verdict. Defendant appealed and plaintiff cross-appealed. Reversed in part, affirmed in part.

The issues raised by the appeal and cross-appeal are:

1. Whether the District Court was correct in submitting the issue of assumption of risk to the jury.

2. Whether plaintiff is entitled to a new trial because of alleged errors in the jury instructions.

3. Whether affidavits of jurors are admissible to impeach the jury verdict by showing that the jury did not understand the jury instructions.

4. Whether in viewing the evidence in the light most favorable to RegO, the jury could find that plaintiff voluntarily and unreasonably exposed herself to a known danger.

5. Whether the District Court abused its discretion by granting a new trial on the grounds that the jury instructions contained an error in law.

In Winnett, Montana, on June 24,1986, a spark ignited abasement full of propane. The resulting explosion completely demolished the house. Sigrid Greytak, who was in the basement, suffered serious burns in the explosion.

A 1060 gallon propane tank in the yard supplied propane to the house. The tank was manufactured in 1949 by Butler Manufacturing Company. The company had equipped the tank with a model 3101CO valve made earlier in 1949 by Bastian-Blessing Company, RegO Company’s predecessor in interest.

To operate that type of valve, a handwheel is turned until a seat disk inside the valve contacts the rim of a valve port. When the seat disk firmly contacts the rim, it seals the port so gasses cannot escape through the valve.

The valve contained a seat disk made of hard rubber. Greytak contends the valve was defective because the company should have used nylon instead of hard rubber as a seat disk material.

On June 22, 1986, Greytak closed the valve to shut off the flow of propane from the tank to the rental house. After turning off the valve, she assisted her father and another person in removing the propane-fired hot water heater. They did not cap the propane supply line after they removed the water heater.

Two days later, Greytak returned to the rental house to do some painting and to cap the open propane line. She smelled a strong odor of propane when she entered the house, so she went into the basement to investigate. She testified that the smell of propane was so strong in the basement it made her dizzy and almost overwhelmed her.

Greytak made several trips in and out of the basement during the next few hours. First, she went outside to make certain the propane valve was off. Then she went back into the basement and screwed the cap on the open propane supply line.

Greytak then tested the capped line for leaks by submerging the end of the line in a dish of soapy water and watching for bubbles. She testified that she knew there was a leak because bubbles appeared in the dish.

After Greytak went outside and cranked the handwheel on the valve tighter, she went back into the basement, tightened the cap and did a second test with the dish of soapy water. At trial, she testified that the line still leaked after she tightened the valve and cap.

She left the rental house and drove home to get a fan. When she returned she took the fan to the basement, plugged it in, and turned it on.

Later, Greytak went back into the basement and moved the fan closer to where the water heater had been. While she was adjusting the location of the fan, the propane exploded, reducing the house to rubble and engulfing Greytak in flames.

The jury found that the valve was defective and that the defect caused her injuries. Greytak did not recover damages, however, because the jury found that she assumed the risk and was 55 percent responsible for her injuries.

As a jury poll showed, nine jurors of the twelve juror panel determined that the valve was defective. Eight of the nine determined that the defect caused Greytak’s injuries. Eleven jurors found Greytak had assumed the risk of her injuries.

Our review of a district court’s conclusions of law is plenary. We determine whether the district court’s conclusions are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

I.

Was the court correct in submitting the issue of assumption of risk to the jury?

In her cross-appeal, Greytak argues that as a matter of law she did not assume the risk. Greytak contends that because she testified she did not know of any defects in the valve assembly she could not assume the risk. We disagree for two reasons.

First, if the valve leaked Greytak surely knew about it. She testified that she turned the valve off, yet the basement filled with propane. She farther testified that she tested the propane supply line twice and it was leaking both times.

Second, at the time Greytak’s cause of action accrued, it was not necessary for a plaintiff to know of the specific defect before the defense of assumption of risk became operative. Rather, the plaintiff must have known of the particular condition that constituted the danger. See Kopischke v. First Continental Corp. (1980), 187 Mont. 471, 500, 610 P.2d 668, 683-84. As this Court has repeatedly held, the defense of assumption of risk applies upon a showing that the plaintiff knew of the danger, then both voluntarily and unreasonably exposed herself to the danger. Kuiper v. Goodyear Tire and Rubber Co. (1983), 207 Mont. 37, 64, 673 P.2d 1208, 1222; Zahrte v. Strum, Ruger & Co., Inc. (1983), 203 Mont. 90, 94, 661 P.2d 17, 18-19; Krueger v. General Motors (1989), 240 Mont. 266, 277, 783 P.2d 1340, 1347.

In this case, the dangerous condition was a basement full of propane. Two days before the accident, Greytak and her father removed a propane hot water heater from the basement. They left the propane line uncapped and the basement filled with propane.

On the day of the accident, Greytak returned to the rental house. She smelled propane when she entered the house. The smell of propane in the basement was so strong it made her dizzy and nearly overwhelmed her. She tested the propane line twice and testified that it leaked both before and after she tightened the valve on the tank outside.

Greytak testified she knew the accumulation of propane in the basement constituted a dangerous and hazardous condition. She testified she knew sparks could cause the propane to explode. She had been shocked by electrical appliances in the past. Although she testified that she did not know electric motors emit sparks when running, she had seen sparks fly when electrical cords were yanked from outlets.

Knowing of the danger, Greytak made several trips into the propane filled basement. On her final trip into the basement, two hours after discovering it was full of propane, the explosion occurred while Greytak was adjusting the location of an electric fan.

On this evidence, a jury could and did find that Greytak assumed the risk by voluntarily and unreasonably exposing herself to a known danger. The District Court’s decision to submit the issue of assumption of risk to the jury was correct.

II.

Is plaintiff entitled to a new trial because of alleged errors in the jury instructions on assumption of risk?

Greytak contends that question 3 of the special verdict forms and jury instructions numbered 22, 23, and 24 are not accurate statements of the law. Greytak’s counsel objected generally to any instructions on assumption of risk and specifically to the substance of the first part of instruction 23. However, he did not object to the sufficiency of either the special verdict or the other instructions before the court submitted the case to the jury. As a result, Greytak waived the right to appeal based on the sufficiency of any instruction except the first part of instruction 23. See Rule 51, M.R.Civ.P; Ahmann v. American Fed. Savings & Loan Ass’n (1988), 235 Mont. 184, 195, 766 P.2d 853, 860; Reno v. Erickstein (1984), 209 Mont. 36, 46, 679 P.2d 1204, 1209.

Greytak also contends that the District Court should have given plaintiff’s proposed instruction 27 instead of the court’s instruction 23. We disagree. Only the first part of number 23 varies significantly from plaintiff’s proposed instruction 27.

The court patterned instruction 23 after Montana Pattern Jury Instruction (MPI) 7.07 (Civil). Instruction 23 reads in pertinent part:

The defendants claim Sigrid Greytak assumed the risk of her injury.
In order to establish that claim, the defendants must prove (1) that Sigrid Greytak had actual knowledge of the danger, and (2) that Sigrid Greytak then voluntarily and unreasonably exposed herself to that danger.

Greytak’s proposed instruction differed from the court’s instruction in that the proposed instruction required actual knowledge of the defect rather than knowledge of the danger in the defect. Greytak’s counsel stated that the proposed instruction came directly from Krueger, 240 Mont. 266, 783 P.2d 1340. He argues that Krueger implies that knowledge of the danger actually means knowledge of the defect.

In Zahrte, this Court stated, “Plaintiff must have a subjective knowledge of the danger and then voluntarily and unreasonably expose himself to that danger before assumption of risk will become operative in a strict liability case.” Zahrte, 203 Mont. at 94, 661 P.2d at 18-19. In Krueger, we endorsed the language of Zahrte and MPI 7.07 as an accurate, comprehensible, and complete statement of the law in the case. 240 Mont. at 276, 783 P.2d at 1347.

That portion of instruction 23 was an accurate statement of the law in this case and the remaining portion was nearly identical to plaintiff’s proposed instruction 27. Therefore, the District Court did not err by giving instruction 23, rather than plaintiff’s proposed instruction 27.

III.

Are affidavits of jurors admissible to impeach the jury verdict by showing that the jury did not understand the jury instructions?

As we recently discussed, Rule 606(b), M.R.Evid., allows the use of juror affidavits to impeach the jury verdict only to show external influences on the jury. O’Leyar v. Callender (1992), [255 Mont. 257], 843 P.2d 394, 309-10, 49 St.Rep. 1008, 1011. A juror may not impeach the verdict by testifying that, because the jurors misunderstood the jury instructions, the verdict had an unintended effect. In this case, there are no allegations of external influence on the jury. The District Court, therefore, properly granted defendant’s motion to strike the juror affidavits.

IV.

In viewing the evidence in the light most favorable to RegO, could a jury find that Greytak voluntarily and unreasonably exposed herself to a known danger?

Greytak argues that the court should have granted her motion for judgment notwithstanding the verdict because the evidence was insufficient to justify the verdict. The basis for Greytak’s argument is essentially the same as her reasoning in the first issue — that she did not know the valve was defective. Greytak further argues that her actions, after discovering that her basement was full of propane, were negligence in attempting to rescue herself from the peril rather than assumption of risk.

“A judgment notwithstanding the verdict will be granted only when the evidence presents no room whatsoever for honest difference of opinion over the factual issue in controversy.” Walters v. Getter (1988), 232 Mont. 196, 203, 755 P.2d 574, 578. A court must not grant a motion for judgment notwithstanding the verdict unless it appears that the non-moving party cannot prevail on the issue when the evidence is viewed in the light most favorable to it. Larson v. K-Mart Corp. (1990), 241 Mont. 428, 433, 787 P.2d 361, 364.

As discussed above in issue I, there was ample evidence for the jury to determine that Greytak knew of the dangerous accumulation of propane, then voluntarily and unreasonably exposed herself to the danger. As a matter of law, that is all that was required to justify a finding that Greytak assumed the risk of her injuries. See Krueger, 240 Mont. at 276-77, 783 P.2d at 1347. The District Court was correct in denying Greytak’s motion for judgment notwithstanding the verdict.

V.

Did the District Court abuse its discretion by granting Greytak a new trial on the grounds that the jury instructions contained an error in law?

The District Court granted Greytak’s motion for a new trial. This Court will reverse a district court’s order granting a new trial only for a manifest abuse of discretion. Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 362,427 P.2d 57, 60. We would uphold the District Court’s order granting a new trial if it could be sustained on any grounds named by the court. See Tigh, 149 Mont. at 362,427 P.2d at 60. The order in this case, however, cannot be sustained.

The sole reason that the court stated in granting a new trial, is that the jury instructions did not clarify that Greytak was barred from recovery if the jury found that she was more than 50 percent responsible for her injuries. The court determined that instruction 23 when read with questions 4 and 5 of the special verdict is inappropriate under Montana law. We disagree.

Instruction 23 stated in pertinent part:

Assumption of the risk on the part of Plaintiff does not bar her recovery unless her responsibility for the injury is greater than the defendants’. However, the total amount of damages which you award will be reduced by the Court according to the percentage of plaintiff’s responsibility, as determined by you.

Question 4 of the special verdict stated:

You must now apportion the responsibility for the cause of this accident between Sigrid Greytak and RegO Company/Butler Manufacturing Company. If the total responsibility is 100%, what percentage of this 100% is attributable to Sigrid Greytak and what percentage to RegO Company/Butler Manufacturing Company?

Question 5 stated:

What is the total amount of Sigrid Greytak’s damages without regard to your answers to questions 3 and 4?

The court’s order does not question whether the evidence was sufficient to support the jury’s finding. Rather, the District Court granted a new trial based on errors of law. The order stated that the jury instructions were erroneous because “[nowhere] in [instruction 23] was the jury advised that a finding by them of 50% or more would bar the Plaintiff from recovery.” That is simply incorrect.

It follows from instruction 23 that if the jury determined Greytak’s responsibility for her injuries was greater than that of the defendants’, then assumption of risk on the part of Greytak bars her recovery. Therefore, instruction 23 clearly stated the law.

Furthermore, Greytak’s counsel did not object to the instructions at trial as is required both for this Court to review them and for the District Court to grant a new trial. See Rule 51, M.R.Civ.P; Ahmann 235 Mont. at 195, 766 P.2d at 860; § 25-11-102(7), MCA. In fact, Greytak’s counsel proposed instructions that were virtually identical to those he objected to on appeal.

In the post-trial motions Greytak asserted that the jury was hopelessly confused. She contends that the problem could have been solved by adding to question 4 of the special verdict, “If you attribute more than 50% of the responsibility for this accident to Sigrid Greytak, then do not proceed to Question 5 ....”

Greytak’s counsel, however, did not offer the added language at trial. On the contrary, the special verdict he offered contained language substantially similar to that used by the court.

Section 25-11-102, MCA, provides the grounds for a new trial. At issue in this case is § 25-11-102(7), MCA, which allows a court to vacate a verdict and grant a new trial for an “error in law occurring at the trial and excepted to by the party making the application.” The District Court manifestly abused its discretion in granting a new trial because (1) the jury instructions did not contain an error in law; and (2) plaintiff’s counsel did not object to the sufficiency of the instructions at trial.

In summary, the District Court was correct in submitting the issue of assumption of risk to the jury. Greytak is not entitled to a new trial based on errors in the jury instructions. The court correctly ruled that the affidavits were not admissible to impeach the verdict based on a misunderstanding of the jury instructions. The court was correct in denying Greytak’s judgment notwithstanding the verdict because there was plenty of evidence for the jury to determine that she assumed the risk. Finally, the District Court abused its discretion by granting a new trial. We reverse the order granting a new trial and direct entry of judgment. We affirm all other issues.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON and WEBER concur.


author: JUSTICE JOHN HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DALE LEE JOHNSON, Defendant and Appellant.
    No. 92-328.
    Submitted on Briefs November 12, 1992.
    Rehearing Denied March 25, 1993.
    Decided March 2, 1993.
    50 St.Rep. 209.
    257 Mont. 157.
    848 P.2d 496.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Marc Racicot, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena; Gerald J. Navratil, Dawson County Attorney’s Office, Glendive.
   JUSTICE JOHN HARRISON

delivered the Opinion of the Court.

This is an appeal from a jury verdict finding the appellant, Dale Lee Johnson (Johnson), guilty of the crime of burglary. This appeal is from the Seventh Judicial District of the State of Montana, in and for the County of Dawson, the Honorable Dale Cox presiding. We affirm.

The following are the restated issues on appeal:

1. Has Johnson waived any claim that testimony of the accomplice was insufficiently corroborated?

2. Has Johnson waived any objection to the place of trial?

3. Was there sufficient evidence from which the jury could determine that the crime was committed in Dawson County?

4. Has Johnson waived any claim that the State improperly bolstered the credibility of its witness?

5. Was Johnson provided effective assistance of counsel?

During the evening of September 27 or the morning of September 28, 1991, Larry’s Interstate Exxon in Glendive, Montana, was burglarized. The owner of the gas station testified that he found a window at the rear of his station had been damaged, and the entire plate glass in the front door to the business knocked out. The owner testified that cigarettes, jerky, beer and coins were stolen from the business.

At the time of the burglary in September, 1991, Johnson and his common-law wife, Lori, were sharing their home with several people: Terri; her son, Beau; and Terri’s boyfriend, Dave. Prior to the burglary Terry Kelly (Kelly) had resided with Johnson, but at the time of the burglary Kelly was living in another house in Glendive with Daryl Thies (Thies) and Theresa Upchurch.

Kelly was picked up by the Glendive police after he had gotten into a fight in town and he was eventually bussed out of town following the affair. At the time Kelly was picked up, the police asked him whether he had anything to do with the Exxon burglary; he denied any involvement. In January 1992, Kelly was arrested in Great Falls, Montana, and after being returned to Glendive he gave the authorities a statement as to what had happened during the evening of September 27,1991.

During the trial, Kelly stated that on the evening of September 27, 1991, he, Johnson and Thies were drinking beer at the house Kelly shared with Thies and Upchurch. Kelly testified that Johnson, who was a former employee of Larry’s Interstate Exxon, knew of a place that “would be easy to knock ... off.” Kelly testified that he did not think it was such a good idea, but he went along with the plan due to being “drunk” at the time. According to Kelly, he and Johnson left on a motorcycle for Johnson’s house where they retrieved plastic bags and a pillowcase before driving to the Exxon station. They parked the motorcycle off the road in some trees. Kelly testified that while Johnson went to the rear of the building Kelly attempted to kick in the front window; he eventually knocked the front window out with a large piece of wood. Once inside, Kelly grabbed a jar of coins totalling approximately $50 and he took cigarettes from the station’s freezer; Johnson took jerky from the counter. Kelly and Johnson left the station and went to Johnson’s house where they divided the coins, cigarettes and jerky.

Testimony at trial included that of one of Johnson’s house guests, Terri, who testified that she awoke around 3:30 to 4:00 a.m. on the morning of September 28,1991. Terri testified that after she entered the kitchen she saw Kelly and Johnson at the kitchen table which was strewn with beer, cartons of cigarettes, and jerky. Terri testified that the two were drinking beer and “talking about what they had just done at Larry’s Exxon.” She also saw other cartons of cigarettes and containers of jerky in the freezer. From what she observed and heard from Kelly and Johnson, Terri testified that she got the impression that both Kelly and Johnson had participated in the commission of the burglary on Larry’s Interstate Exxon.

The jury found Johnson guilty of burglary and not guilty of an unrelated charge of theft.

I

Has Johnson waived any claim that testimony of the accomplice was insufficiently corroborated?

It is Johnson’s position that the testimony of Kelly, an accomplice, was insufficiently corroborated. Kelly was an accomplice to the burglary and was charged with the burglary along with Johnson. He pled guilty to that offense and was sentenced by the District Court in Dawson County. There is no question that Kelly was responsible or legally accountable for the burglary, therefore, under § 46-16-213, MCA, his testimony, standing alone, would not have been sufficient to convict Johnson.

While Johnson argues that evidence corroborating the testimony of the accomplice, Kelly, was insufficient to sustain a conviction, there is nothing in the record that disclosed a challenge to the sufficiency of the corroborative evidence, or the evidence as a whole, by way of either a motion for an acquittal or a motion for a directed verdict. We have noted in numerous opinions that this Court will not notice an allegation of error raised for the first time on appeal when the appellant had the opportunity to make such an objection at the trial level. See § 46-20-104(2), MCA; State v. Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439. While Johnson did move the District Court to dismiss the charges on the ground that he had not been personally identified in court by Kelly, he did not move for a directed verdict or an acquittal based upon a claim of insufficiency of the evidence, either as a whole or as to evidence corroborating the accomplice testimony. We conclude that Johnson waived any claim that the accomplice testimony was insufficiently corroborated.

II

Has Johnson waived any objection to the place of trial?

On appeal, Johnson raises for the first time the issue that the State failed to sufficiently prove at trial that the burglary was committed in Dawson County. The question is one of venue. Although venue is not an element of the crime, it is a jurisdictional fact that must be proven at trial just as any other material element. State v. Preite (1977), 172 Mont. 318, 323, 564 P.2d 598, 600-601. Unlike a claim that venue is improper, which must be raised before trial according to § 46-3-111, MCA, the issue of whether the State has satisfied its burden, may be raised for the first time on appeal. State v. Bad Horse (1980), 185 Mont. 507, 515, 605 P.2d 1113, 1117.

III

Was there sufficient evidence from which the jury could determine that the crime was committed in Dawson County?

In a criminal case, venue must be proven beyond a reasonable doubt. State v. Bretz (1979), 185 Mont. 253, 285, 605 P.2d 974, 993, cert. denied, 444 U.S. 994 100 S.Ct. 529, 62 L.Ed.2d 425 (1979), reh’g denied, 444 U.S. 1104 100 S.Ct. 1073, 62 L.Ed.2d 791 (1980). We find there was sufficient evidence presented to the jury by which it could have reasonably concluded that the offense was committed in Dawson County. First, the owner of Larry’s Exxon, Larry Schlenz, testified that Larry’s Interstate Exxon station was located on Highway 16, just north of the interstate on the Sidney highway. Next, Kelly testified that the station was close to the interstate on the Sidney highway. Finally, Johnson’s common-law wife, Lori, agreed that the station was located “out at the Sidney highway on the interstate.”

Even Johnson acknowledges in raising this issue that direct testimony that the offense was committed in a specific county is not required to prove venue, noting several Montana cases wherein this Court determined that venue was sufficiently proven by witnesses’ references to either a city or city streets. See, e.g., State v. Williams (1949), 122 Mont. 279, 202 P.2d 245; State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009. In the present case, three witnesses testified that Larry’s Exxon station was on the Sidney highway (Highway 16) near the interstate. We note that these highways intersect in south-central Dawson County and that it is approximately twenty miles from that intersection to the county line. The jury heard sufficient evidence to determine that the offense occurred in Dawson County. We conclude that the jury properly determined that the crime was committed in Dawson County.

IV

Has Johnson waived any claim that the State improperly bolstered the credibility of its witness?

Johnson argues that the District Court erred in permitting the State to question Terri about the threats made against her by Johnson after he was charged with the burglary. His only objection to her testimony at the time of trial was that it was irrelevant. Johnson, in order to preserve for appeal any objection he had at the trial court level must raise the issue before the District Court and may not address the issue on appeal if it was not raised below. “It is a well-settled rule that on appeal this Court will consider for review only those questions raised in the trial court.” State v. Campbell (1981), 191 Mont. 75, 79, 622 P.2d 200, 202. We conclude that Johnson waived any claim that the State improperly bolstered the credibility of its witness.

V

Was Johnson provided effective assistance of counsel?

Defendant contends that his counsel incorrectly failed to request a jury instruction providing that accomplice testimony must be viewed with distrust. Defendant relies on State v. Laubach (1982), 201 Mont. 226, 653 P.2d 844, in which this Court reversed Laubach’s conviction because of the trial court’s failure to instruct the jury “that accomplice testimony must be viewed with distrust.” Laubach, 653 P.2d at 847. The controlling statute referred to in Laubach is § 26-1-303(4), MCA (1991), which states in pertinent part:

Instructions to jury on how to evaluate evidence. The jury is to be instructed by the court on all proper occasions that:
(4) the testimony of a person legally accountable for the acts of the accused ought to be viewed with distrust. [Emphasis supplied.]

Laubach concluded that the language of the statute was mandatory and reversed the conviction, ordering retrial.

As underscored, § 26-1-303(4), MCA, provides that the jury is to be instructed on “all proper occasions.” We conclude the facts in Laubach provided a proper occasion for the use of the jury instruction. However, we conclude that the Laubach holding was too broad. We conclude the holding should be limited by the wording of the statute. We hold that Laubach is overruled to the extent that it requires giving the instruction in all cases involving accomplice testimony. The record in this case disclosed significant accomplice testimony. If the defendant had requested an instruction on accomplice testimony, then under the statute such instruction should have been given.

The issue before us, however, is whether it was ineffective assistance of counsel for defense counsel to fail to request such an instruction. In his presentation the defendant contended he was not present at the scene of the crime. An accomplice instruction could be considered inconsistent with that defense. It is clear that the giving of the instruction under the circumstances of this case involved a tactical decision on the part of counsel. We will not second guess such tactical choices. We conclude defendant has failed to demonstrate any error on the part of his counsel in failing to request the instruction. We hold defendant was provided effective assistance of counsel, even though counsel did not request the accomplice instruction.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, McDONOUGH and WEBER concur.