author: JUSTICE McDONOUGH JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ERNEST MAZURKIEWICZ, a/k/a Ernest Luzadder, Defendant and Appellant.
    No. 90-227.
    Submitted on Briefs Aug. 20, 1990.
    Decided Oct. 24, 1990.
    799 P.2d 1066.

      Mark P. Yeshe, Nicholas C. Jacques, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patti Powell, Asst. Atty. Gen., Helena, John T. Flynn, Broadwater County Atty., Townsend, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Ernest Mazurkiewicz appeals from the judgment of the First Judicial District, Lewis and Clark County. Following a plea of guilty on the charges of robbery and deliberate homicide, the District Court sentenced Mazurkiewicz to forty years on the robbery charge and fifty years on the deliberate homicide charge, with those terms to run concurrently. The court also imposed an eight year prison term for the use of a weapon. It was ordered that this term be served consecutively to the forty and fifty year terms. The District Court designated Mazurkiewicz a dangerous offender for purposes of parole eligibility and ordered him to pay restitution. We reverse that portion of the judgment requiring restitution. In all other respects the judgment is affirmed.

The issues presented for review are:

1. Whether imposition of a consecutive sentence for use of a weapon was a denial of due process;

2. Whether the District Court erred in concluding that Mazurkiewicz used a weapon in the commission of a crime;

3. Whether the District Court erred in finding Mazurkiewicz to be a dangerous offender;

4. Whether the District Court erred in ordering Mazurkiewicz to pay restitution.

The facts in this case are not in dispute. The defendant, Ernest Mazurkiewicz, was traveling with a group of friends when they met Larry Beckwith. Apparently, after friendly conversation, Mr. Beckwith agreed to take two of Mazurkiewicz’s friends to Alaska and help them get a job.

Mr. Beckwith traveled with Mazurkiewicz and his friends towards Townsend, Montana. During this period of time, a decision was made to rob Mr. Beckwith. Roy Duncan, a co-defendant, left the car that Mazurkiewicz was riding in and rode with Beckwith in his truck. Shortly before they reached Townsend both vehicles pulled over. At this point, Duncan went back to Mazurkiewicz’s car and asked for his gun so that he could use it in the planned robbery. Mazurkiewicz gave him the gun and Duncan went back to Beckwith’s truck.

The two vehicles separated at this point. Eventually however, Mazurkiewicz met Roy Duncan and another accomplice at a gas station. Duncan then told Mazurkiewicz that they had killed Larry Beckwith during the robbery. The group then traveled south towards Las Vegas, where Mazurkiewicz was eventually arrested.

Mazurkiewicz was charged with robbery and deliberate homicide through accountability. Alternatively, he was charged with deliberate homicide under the felony murder statute, § 45-5-102(l)(b), MCA. Initially, Mazurkiewicz pled not guilty. However on December 19, 1989, he changed his plea and pled guilty to accountability for the robbery and deliberate homicide under the felony murder rule.

After a sentencing hearing was held, the court sentenced Mazurkiewicz to forty years for accountability for robbery and fifty years for the offense of homicide to be served concurrently. The lower court also sentenced him to eight years for use of a dangerous weapon. This sentence, it was ordered, was to be served consecutively to the forty and fifty year terms. The court, having determined that Mazurkiewicz played “an important part in this terrible crime committed against an innocent person,” declared him a dangerous offender for purposes of parole and probation. Mazurkiewicz appeals from this sentence.

I

Mazurkiewicz argues that Montana’s weapons enhancement statute is unconstitutional. Section 46-18-221(1), MCA, provides:

“A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222.”

According to Mazurkiewicz, this statute, by its use of a mental state and by its mandate for a consecutive sentence, creates an offense separate from the underlying offense. For that reason, use of a weapon should be separately charged, and the issue should be submitted to the jury for determination beyond a reasonable doubt.

We disagree. The constitutionality of § 46-18-221(1), MCA, was recently addressed in State v. Krantz (Mont. 1990), [241 Mont. 501,] 788 P.2d 298, 47 St.Rep. 454. In Krantz its constitutionality was clearly upheld. We decline Mr. Mazurkiewicz’s request to reverse this holding.

II

Mazurkiewicz next argues that the District Court erred in concluding that he used a weapon in the commission of an offense. He maintains that in order for Montana’s weapons enhancement statute to apply, it must be shown that the defendant “while engaged in the commission of the offense knowingly displayed, brandished, or otherwise used a firearm.” Section 46-18-221, MCA.

Mazurkiewicz pled guilty to accountability for the robbery of Mr. Beckwith and deliberate homicide under the felony murder rule. Therefore he was not the person who actually committed the robbery and homicide. Based upon these facts, Mazurkiewicz argues that it was erroneous for the lower court to determine that he “knowingly displayed, brandished or otherwise used a firearm” during the commission of an offense. He maintains that Montana’s weapons enhancement statute contains no indication that it was meant to apply to anyone other than those actually committing the offense. Therefore, Mazurkiewicz’s conduct, which only consisted of handing the weapon to Duncan, does not qualify as use of a weapon as mandated by the statute.

In support of this argument, Mazurkiewicz relies upon cases of other jurisdictions decided under statutes similar to our own. See People v. Walker (Cal. 1976), 18 Cal.3d 232, 133 Cal. Rptr. 520, 555 P.2d 306; State v. Hicks (1979), 38 Or. App. 97, 589 P.2d 1130; State v. Thompson (1980), 101 Idaho 430, 614 P.2d 970. Many of these cases rely upon the policy that a penal statute should be construed as favorably to the defendant as its language and the circumstances of its application reasonably permit. According to this policy, a defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or construction of language used in a statute. Walker, 133 Cal. Rptr. at 526, 555 P.2d at 312 (citing Keeler v. Superior Court (1970), 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617). Mazurkiewicz argues that by construing our statutes to apply to accomplices and others not actually “brandishing, displaying or using a dangerous weapon,” the lower court abdicated its responsibilities articulated by this long established policy. Thus, he maintains his conviction for use of a weapon should be overturned.

We disagree. The lower court, in response to an objection to its determination of this issue stated:

“[A]nd to clarify the dangerous weapon designation, the dangerous weapon sentence, the statement of the defendant himself was that he handed the gun to the person who shot it and as far as I am concerned that is use of a dangerous weapon.”

Mazurkiewicz was convicted of robbery by accountability. His conviction stems from the fact that he helped plan the robbery and that he physically furnished the gun which was used in the robbery and murder of Larry Beckwith. As an accomplice to these crimes, Mazurkiewicz is equally responsible for the crimes to the same degree as his confederates, who actually perpetrated the acts. He knowingly supplied the means to commit the crimes, and admitted knowing the gun was to be used in the robbery. We hold this is sufficient to meet the language of the statute which mandates sentence enhancement for “otherwise [using] a firearm.”

Ill

Mazurkiewicz next argues that the lower court erred in designating him a dangerous offender for purposes of parole eligibility. Section 46-18-404, MCA, provides that a sentencing court shall designate an offender a non-dangerous offender if, in the five years preceding the commission of the instant offense, he was neither convicted of nor incarcerated for a felony offense, and if the court has determined that the offender does not represent a substantial danger to society.

Mr. Mazurkiewicz has two prior felony convictions. Both of these convictions were for nonviolent crimes and both convictions occurred over five years before the instant offense occurred. Mazurkiewicz also points out that his connection with the instant offense was rather remote. His only connection was handing over a gun and driving away. He stated that he did not know that Mr. Beckwith would be murdered. Based upon these facts, he maintains that the dangerous designation was improper under the dictates of § 46-18-404, MCA.

We disagree. In making its determination to designate Mazurkiewicz a dangerous offender, the lower court noted that he had a prior record of violating the terms of probation for felonies committed in Georgia and Iowa. This prior history, the court noted, indicated Mazurkiewicz was a poor candidate for supervised release. The court also considered the serious nature of the crimes committed by Mazurkiewicz and noted that he played a substantial role in the robbery and death of an innocent man.

In light of the seriousness of the crimes committed by Mazurkiewicz, we refuse to reverse the holding of the trial court. He played an active role in the robbery of a completely innocent person. This robbery resulted in the death of Larry Beckwith. Given these facts we refuse to reverse the judgment of the trial court on this issue.

IV

Finally, Mazurkiewicz .argues that the lower court erred in requiring him to pay restitution. According to Mazurkiewicz, restitution can only be required as a condition of a deferred or suspended sentence. Since he had no time suspended or deferred, Mazurkiewicz argues that the lower court’s order requiring him to pay restitution was improper.

We agree. Section 46-18-242, MCA, clearly states that restitution may be a proper condition of a deferred, suspended or partially suspended sentence. No statute allows restitution requirements to be imposed in the absence of these sentences. We therefore reverse and vacate this portion of the trial court’s judgment, and affirm on all other issues.

JUSTICES HARRISON, BARZ and WEBER concur.

JUSTICE HUNT

concurring and dissenting:

I concur in all of the Opinion except that concerning the enhancement statute, § 46-18-221, MCA, set forth in the majority Opinion. I dissent from that portion of the Opinion for the reason set forth in Justice John C. Sheeh/s concurring and dissenting Opinion in State v. Krantz (Mont. 1990), [241 Mont. 501,] 788 P.2d 298, 47 St.Rep. 454.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    In re the MATTER OF DECLARING B.H.M., C.M.M. AND J.T.H., Youths in Need of Care.
    No. 89-531.
    Submitted July 13, 1990.
    Decided Oct. 25, 1990.
    799 P.2d 1090.

      Chris P. Christensen, Kalispell, Paulette C. Ferguson, Missoula, for Maternal Grandmother.
    Ted O. Lympus, Co. Atty., Randy K. Schwickert, Deputy Co. Atty., Kalispell, Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Robert B. Allison, Kalispell, for Youths.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Doreen Karen Howard appeals from the order of the District Court, Eleventh Judicial District, County of Flathead, which terminated her parental rights to BHM, CMM, and JTH, who had previously been designated youths in need of care. We affirm.

The issues presented on appeal are:

1. Whether the District Court followed proper procedural steps in terminating the parental rights of the appellant.

2. Whether the District Court erred in considering the “best interests of the child” test in terminating the parental rights of appellant.

3. Whether there was sufficient evidence presented to support the District Court’s order.

BHM, born on August 26,1982, and CMM, born on September 17, 1983, are children of appellant and Dan Moe, deceased. JTH, born on July 1, 1985, is the child of appellant and Mark Rickman.

Dan Moe was murdered on July 31, 1985. Mark Rickman pled guilty to this murder on March 21, 1986. Rickman was sentenced to 35 years in prison.

At the March 21 hearing, Rickman testified that appellant and appellant’s mother, Opal Howard, had assisted in the homicide. As a result, appellant was arrested on March 19, 1986, and subsequently pled guilty to obstructing justice by helping Rickman dispose of Dan Moe’s body. Appellant was sentenced to ten years in prison.

After appellant was arrested for her participation in the murder and incarcerated in Flathead County, a petition for Temporary Investigative Authority (TIA) was filed with the District Court seeking protective services for her three children. The supporting affidavit stated that both appellant and the natural father of JTH were currently incarcerated and the natural father of BHM and CMM was deceased. The court granted the TIA on March 21,1986. As a result, the children were removed from their home and placed in foster care with non-relatives.

On April 4, 1986, Opal Howard moved to dismiss and vacate the order granting the TLA. An adjudicatory hearing was held on April 9, 1986. At this hearing, Shawn Trontel, a psychiatric social worker, testified that BHM, who was three and one-half years old, showed behavior more appropriate to a two-year-old. His speech was basically unintelligible. He was withdrawn and fearful. He was not toilet-trained and showed fears of toilet training. He was unable to form attachments to other persons and was unable to follow simple directions. CMM was not toilet-trained and lacked skills associated with a child of her age. The children were unable to feed themselves with utensils and drank from “tippy” cups.

Mark Rickman testified at this hearing concerning the involvement appellant and her mother, Opal, had in the murder of Dan Moe. He testified that the murder was planned to prevent the children from having contact with their father and his family. Further, he testified that his participation in the murder was compelled by threats from Opal and appellant that he would lose contact with his son, JTH. Neither appellant nor Opal refuted this testimony. The court denied the motion to dismiss and the children were initially adjudicated youths in need of care. The involvement of their mother in the murder of Dan Moe had a detrimental impact on the children’s mental and physical health.

As part of the court’s order, all of the potential caregivers underwent psychological evaluations and submitted to home studies. After reviewing these evaluations and home studies, the Flathead County Department of Public Welfare (Department) attempted to transfer the placement of BHM and CMM to Pat and Karen Moe, the children’s paternal aunt and uncle, and the placement of JTH to Duane and Karen Wock, the maternal aunt and uncle. The Department justified this request based upon the positive feelings that the children, BHM and CMM, had for Pat and Karen, and the idea that the longer the children stayed in foster care, the more difficult it would be if an eventual break occurred.

Appellant obtained a temporary restraining order to prevent the transfers because the Department had failed to first contact appellant. Opal Howard filed a formal notice withdrawing herself from consideration as an alternate caretaker for the children. This notice was based upon her objection to the general release of her psychological evaluation.

A hearing was held in November, 1986, to determine whether a permanent injunction should issue preventing the transfer of the children. At this hearing, the court heard substantial evidence regarding BHM and CMM’s improvement after a two-week visit with their aunt and uncle, Pat and Karen Moe. Their preschool teacher testified that after the visit they seemed like new children. Two social workers who had had contact with the children recommended that they be placed with family members.

On November 21, 1986, the court found that it was in the best interests of BHM and CMM to be placed with Pat and Karen Moe, and for JTH to be placed with Duane and Theresa Wock. The court recognized the animosity between the Howards and the Moes, and ordered that Pat Moe obtain counseling and admonished the Moes not to make any deprecatory statements about the children’s mother. The court also ordered that the placements be regularly monitored.

In a report dated February 10, 1987, social worker Donna Taylor noted that BHM and CMM were doing well in the Moes care but that JTH should be removed from his placement at the request of the Wocks. Upon motion by the State, the court ordered that JTH be placed in the home of his maternal aunt and uncle, Dan and Eileen Howard.

In November, 1988, the Department filed a petition for permanent custody and authority to consent to adoption with the court. On February 1, 1989, Opal Howard moved to intervene and filed a petition for custody of the children. On February 17, 1989, Mark Rickman filed notice that he would not contest the termination of his parental rights.

Ahearing was conducted on February 21-24 and May 16-17,1989. At the hearing, at least six professionals testified as to the fragile emotional condition of the oldest child, BHM; the chil dren’s improvement after being placed in foster care; and appellant’s incapacity to care for dependent children on a long term basis.

Based upon the evidence presented at the hearing, the District Court concluded that the children had been abused and neglected, and were youths in need of care. The court further concluded that the parental rights of appellant should be terminated because her conduct and condition were unlikely to change within a reasonable time. Finally, the court concluded that the best interests of the children would be served by termination of the parental rights; and by an award of permanent legal custody to the Department with authority to consent to adoption of the children.

The first issue is whether the District Court followed proper procedure in terminating the parental rights of the appellant.

Two procedures culminated in the District Court’s finding that appellant’s parental rights should be terminated. The first one was the District Court’s grant of temporary investigative authority (TIA) and protective services pursuant to a Department petition, governed by §§ 41-3-401 through 409; MCA. The second was the final termination of rights, governed by §§ 41-3-601 through 612, MCA.

The primary issue before this Court is whether the District Court acted arbitrarily in terminating the mother’s parental rights permanently, not whether the District Court acted improperly in accepting the recommendation of the Department for temporary authority. Assuming, nevertheless, that Doreen Howard may challenge the Department’s grounds for the TLA and the temporary transfer of the children from foster care to the Moe home, a review of the record shows that the District Court adhered to the proper statutory procedures.

The Department was well within its bounds when it filed a petition for temporary custody. Section 41-3-402(1), MCA, states:

“In cases where it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, attorney general, or an attorney hired by the county welfare department or office of human services may file a petition for temporary investigative authority and protective services.”

The District Court received a petition for temporary investigative authority and protective services filed pursuant to §§ 41-3-401(10) and 41-3-402, MCA. The court issued an order pursuant to § 41-3-403, MCA, which expressly allows the court to grant such relief as may be required for the immediate protection of the youth. The mother and grandmother then moved to vacate the order and dismiss the petition. A hearing was held on April 19, 1986, to decide on the motion. From the evidence as set forth in the record, the District Court found probable cause to support the TIA petition.

Appellant contends that the grant of the TIA and the subsequent transfer of the children from neutral foster care to the Moe home was based only on the absence of the parents; she maintains that abuse or neglect within the mandate of the statute was never alleged. However, the statute provides that danger of abuse or neglect is adequate grounds for issuing a TLA. It is certainly within the contemplation of an agency or judicial body that the violent death of one parent and the incarceration of another could place children in danger of psychological and emotional trauma. That the children’s mother was alleged to have participated in perpetrating this trauma rises to the level of at least neglect, if not abuse. The District Court found, after subsequent psychological testing, that at least one of the children exhibited distress and fear at the thought of going back to live with his grandmother.

The findings of a district court on abuse and neglect generally will not be disturbed “unless a mistake of law exists or the factual findings are not supported by substantial evidence.” In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234 Mont. 201, 206, 761 P.2d 838, 841 (1988). The term “neglect” includes emotional deprivation. Matter of JLB, 182 Mont. 100, 114, 594 P.2d 1127, 1135 (1979). The mother’s complicity in the homicide, coupled with the results of the psychological testing, could prompt a condition of emotional deprivation. Clearly the District Court was within its discretion in granting the state temporary investigative authority. Having determined that the TLA was properly granted, we now turn to the issue of permanent termination.

The proper procedure for permanent termination is outlined in § 41-3-609, MCA, which states in part:

“(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:
“ .. .(c) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

The District Court properly found, first, that the children were “youth in need of care” as defined in § 41-3-603(2), MCA. ‘Youth in need of care” means a youth who is dependent, abused, or neglected as defined in § 41-3-102(2). Section 41-3-102(2), MCA states:

“ ‘Abused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.”

Substantial evidence was presented regarding the children’s abuse or neglect at both the TIA proceeding and the 1989 permanent custody hearings. They were thus adjudicated “youth in need of care” as the first criterion of § 41-3-609, MCA, requires. The final two criteria that must be met under § 41-3-609, MCA, are: 1) that a treatment plan has not been successful and 2) that the condition of the parent(s) is not likely to change within a reasonable amount of time.

Appellant argues that under § 41-3-609(l)(c)(i), MCA, an “appropriate treatment plan” was never authorized by the court; the only plan attempted was one by which to evaluate appellant’s probable success with a treatment plan, and to then propose an appropriate plan. She states that her due process rights were violated because a complete treatment plan was never attempted.

Although the District Court did approve a preliminary “treatment plan” for appellant in order to determine her chances of success in thorough treatment, it was not required to do so.

Subsection (4) of 41-3-609, MCA, reads:

“A treatment plan is not required under this part upon a finding by the court following hearing if: (b) the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarceration ...”

While it is unclear from the District Court’s findings whether it was proceeding under § 41-3-609(l)(c)(i), MCA requiring proof of an unsuccessful treatment plan, or under § 41-3-609(4), MCA, not requiring any plan at all, we conclude that there is sufficient evidence in the record to justify the District Court’s decision to terminate. A lengthy hearing was held in February of 1989, and continued in May of 1989, in which the practicality of a treatment plan was discussed, as well as the benefit to the children of permanent alternate placement. Appellant was given an opportunity to testify at this hearing. In spite of her testimony, the District Court found that a treatment plan would not be practical because of the mother’s deficiencies and the length of her prison sentence. Appellant’s argument that the court did not comply with the requirements of § 41-3-609(1), MCA (requiring the treatment plan) is without merit. In meeting the requirements of § 41-3-609(4) (the exception to the treatment plan rule), the court provided due process by fulfilling all of the requirements for permanent termination of parental care. Further, adequate evidence was presented to indicate that appellant’s condition was unlikely to change within a reasonable amount of time as required by § 41-3-609 (l)(c)(ii), MCA.

The second issue is whether the District Court abused its discretion by considering the best interests of the children in terminating parental rights.

Appellant contends that the District Court’s finding of fact No. 51 and conclusion of law No. 5, erroneously use the “best interest of the children” standard in terminating her parental rights. She further argues that the State is using parental deficiencies alone to justify the termination of parental rights. We disagree.

The case law that appellant cites clearly states that the “best interests” test is properly used after an initial finding of dependency, abuse, or neglect. Matter of Guardianship of Doney, 174 Mont. 282, 286, 570 P.2d 575, 578 (1977); Matter of Fish, 174 Mont. 201, 206, 569 P.2d 924, 927 (1977); In Re Gore, 174 Mont. 321, 327, 570 P.2d 1110, 1113 (1977); Matter of Guardianship of Aschenbrenner, 182 Mont. 540, 549, 597 P.2d 1156, 1162 (1979). Here the court has met the threshold requirement by finding the children “youth in need of care”; their status as such satisfies the prerequisites for the “best interests” test. Further, this Court has previously stated that “when parents commit acts which deprive a child of an adequate physical and emotional environment, the best interest of the child becomes paramount over parental rights.” In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234 Mont. 201, 208, 761 P.2d 838, 842 (1988). While the “best interests” test is specifically applied after termination in order to determine proper placement for the children, it is also used as a guideline throughout proceedings once an unacceptable home environment has been ascertained.

Appellant’s argument that it is her parental deficiencies alone that are justifying termination is equally without merit. Finding of fact No. 51 cites a variety of factors to justify the court’s decision, including the needs of the children, the history of violent behavior by the parents, and the long term confinement of the parents. These are all factors that the court “shall” consider pursuant to § 41-3-609(2), MCA. The District Court has considered the children’s whole situation, as the statute mandates, and was well within its discretion in its final decision.

The third issue is whether sufficient evidence was presented to support the District Court’s order.

Appellant presents testimony from members of various communities where the family lived that the children seemed to be physically well cared for and not unusually ill-behaved. The District Court, however, found the respondent’s evidence persuasive that at least some of the children were abused, neglected and/or deprived. At least one of the children had speech and developmental problems, and showed indications of being subject to physical abuse. They were not toilet trained. They exhibited substantial emotional improvement after removal from the home and placement in foster care. The record does not reflect any abuse of discretion on the part of the District Court.

The judgment is affirmed.

JUSTICES HARRISON, BARZ, McDONOUGH and WEBER concur.


author: JUSTICE SHEEHY

text:
    DANIEL J. FELSKA and Adoph L. Solvie, Plaintiffs and Respondents, World Realty Ltd., Kadon Management Co., Ltd., York Ventures, Ltd., Helund Forest Consultants, Ronald Edward Little, Donald John Henry Williamson, Ronald Douglas Voight, Hugh Radford, Raymond John March, Erwin Romanus Letwin, Ian Graham, Neil Bruce Maclean, Leslie William McKay Yelland, and Richard Stanley Russell, Intervenors and Appellants, v. BRIAN GEORGE GOULDING, and all other persons, unknown, claiming or who might claim any right, title, estate, or interest in or lien or encumbrance upon the real property described in the complaint, adverse to the plaintiffs’ title thereto, whether such claim or possible claim be present or contingent, Defendants and Respondents.
    No. 90-114.
    Submitted May 30, 1990.
    Decided Oct. 25, 1990.
    800 P.2d 161.

      Ben Berg, Jr., Berg, Lilly, Stokes, Andriolo, Tollefsen & Schraudner, Bozeman, for plaintiffs, intervenors and appellants.
    J. Robert Planalp, Bozeman, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This is the second appeal in this Court centered around the Inn of Bozeman. The first appeal is reported as Felska v. Goulding (1989), 238 Mont. 224, 776 P.2d 530 (Felska I). In Felska I, we affirmed the Eighteenth Judicial District Court’s order of quiet title of the Inn of Bozeman to the plaintiffs. Previously, the property had been owned by a group of investors from British Columbia, Canada, each of whom held their interests as tenants in common. We remanded a portion of the first appeal to the District Court to determine if a reasonable rate of interest could be applied to post-1983 loans and to determine the legality of retroactive designation of pre-December 1983 advancements as loans.

The District Court on remand concluded that “the retroactive designation of the pre-December 1983 contributions of Co-Owners as ‘loans’ accruing interest is unlawful and void under the circumstances.” Furthermore, the District Court found that it was inappropriate, under the Co-Owner’s agreement, to apply a rate of interest to post-1983 loans. The appellants appeal the District Court’s order. We modify and affirm.

The following issues are raised on appeal:

1. Whether the District Court correctly concluded that no interest should be charged on post-1983 contributions.

2. Whether the District Court properly concluded that the retroactive designation of pre-1983 contributions of Co-Owners as loans accruing interest is unlawful and void.

A detailed description of the events surrounding this case can be found in Felska I. In this case, we will only review the facts pertinent to the issues on appeal. This case primarily focuses upon the minutes of the December 8,1983, Co-Owners’ meeting, and the loan provisions of the 1977 Co-Owners’ agreement. The minutes of the December 8, 1983, meeting state in pertinent part:

“D. Williamson — MOTION: All funds contributed after the initial investment accrue interest at U.S. Prime rate plus 6%/9% and that this interest should be paid out monthly.
“All monies advanced since that time should be secured, if possible, and be treated as loans from partners.
“Interest accrued on funds contributed before December 31, 1983, be treated as a portion of the partners loans.
“SECONDED: R. March.
“MOTION CARRIED.
“D. Williamson — MOTION: That a legal opinion be obtained as to whether the above stated plan is enforceable.
“SECONDED: R. Little
“MOTION CARRIED.
“D. Williamson — MOTION: Interest of 25% should be paid monthly to those partners advancing further funds. Interest is to be calculated on: principal and interest to December 31,1983, plus any additional funds advanced.
“SECONDED: V..Nordman
“MOTION CARRIED.

The 1977 Co-Owners’ agreement set forth the following pertinent provisions:

“BORROWING PROVISIONS:
“21. The Co-Owners shall borrow from time to time all the sums of money required in connection with the carrying on of the Inn, upon the security of the assets of the Inn to the extent possible. The approval of all Co-Owners shall be required when establishing lines of credit or financing with any banks or other financial institutions or private lenders.
“LOANS BY CO-OWNERS
“22. If at any time a Co-Owner shall properly determine that, in order to protect or preserve any of the properties or other assets of the Inn, additional funds are required to meet the current cash requirements of the Inn and the same are not available from sources already available to the Co-Owners, then any such Co-Owner may, but shall not be obligated to, advance such funds to the Inn or pay such funds to third parties for the benefit of the Inn. Prior to making any such advances, except in cases of real emergency, such Co-Owner shall provide ten (10) days’ written notice to the Manager of his intention to so advance funds. Any such advances or payments shall during their existence bear interest at a rate determined by the manager.”

I.

Whether the District Court correctly concluded that no interest should be charged on post-December 1983 contributions.

The appellants contend the District Court failed to carryout properly our remand instructions in Felska I. In Felska I, we asked the District Court to determine if a reasonable rate of interest could be charged to post-December 1983 contributions.

“However, it is not clear what rate of interest the parties contemplated: (25%, 6%/9% over U.S. prime; or the ‘highest legal rate’). Nor is it clear what reasonable rate could be applied. We leave these specific questions to the District Court upon remand.”

Felska I, 776 P.2d at 536.

Contrary to the appellants’ assertions, the District Court properly followed our instructions. The District Court concluded that interest as it was attempted to be charged was inappropriate, and we agree.

The District Court first determined that specific provisions of the Co-Owners’Agreement, i.e., paragraphs 21 and 22, established conditions precedent which must be satisfied before interest could be affixed to either post or pre-December 1983 advances. A review of paragraphs 21 and 22 will reveal that the District Court’s findings are correct. Paragraph 21 provides that all Co-Owners must approve any loans with private lenders. Furthermore, paragraph 22 requires 10 day notice when Co-Owners make loans. As the District Court properly notes, “Unanimous concurrence of all Co-Owners regarding either pre- or post-December 1983 loans did not occur as required by Paragraph 21; written notice was not given as required by Paragraph 22.” Neither Goulding nor his representative was present at the December 3, 1983 meeting; consequently, the vote on the motion to grant interest on post-December 1983 loans was not unanimous as required by paragraph 21. To compound matters, the Co-Owners failed to abide by the notice provisions under paragraph 22.

The minutes of the December 8, 1983 Co-Owners’ meeting also support the District Court’s conclusion not to allow interest on post-December 1983 loans. The minutes of the December 8,1983 meeting reflect a great deal of ambiguity as to what interest to apply to post-December 1983 loans. “... [I]t is not clear what rate of interest the parties contemplated: (25%, 6%/9% over U.S. prime; or the highest legal rate).” Felska I, 776 P.2d 536.

An attempt under Montana law to charge a usurious interest rate makes the object of the contract unlawful, and thus void under § 28-2-603, MCA. Section 31-1-107(1), MCA, provides for interest rates allowed by agreement of the parties:

“Parties may agree in writing for the payment of any rate of interest not more than 6 percentage points per annum above the prime rate of major New York banks as published in the Wall Street Journal edition dated 3 business days prior to the execution of the agreement, and such interest shall be allowed according to the terms of the agreement.”

The designation of any interest rate more than 6% above the prime rate is usurious and, consequently, illegal. In this case, the Co-Owners designated the interest as “6 to 9% above prime” or “25%,” both which clearly violate § 31-1-107(1), MCA. Furthermore, § 31-1-107(1), MCA, requires that a writing exist if the parties agree for the payment of any interest rate no more than six percentage points above the prime rate. The statutory requirement of a writing was not met in this case regarding post-December 1983 interest since the only written document showing any discussion of interest by the parties are the minutes of December 8,1983 meeting. As the District Court properly notes, “ ‘Minutes’ are not synonymous with a required writing establishing an interest rate applicable in a financial transaction, and will not satisfy such requirement.” Moreover, the minutes do not constitute an agreement. Consequently, even if we found the interest rate was not usurious, the appellants still failed to meet the writing requirement under § 31-1-107(1), MCA.

Appellants argue that § 31-1-107(1), MCA, "... is permissive and employs the word ‘may’ in regard to a writing.” We disagree with appellants, and adopt the District Court’s findings that § 31-1-107(1), MCA, is not permissive, and that a writing is necessary for the parties to agree to a rate of interest.

The District Court properly concluded that the post-December 1983 loans could not accrue interest because the rates that appellants sought to enforce were usurious and illegal. Furthermore, the District Court found that the Co-Owners violated paragraphs 21 and 22 of their own agreement in attempting to charge a rate of interest on the loans, making the charging of interest inappropriate. Thus, the District Court did exactly what it was directed to do; i.e., decide what rate of interest should be applied. The District Court properly concluded no interest rate could be applied to post-December 1983 loans as any interest rate proposed was illegal under § 31-1-107(1), MCA, and in violation of paragraphs 21 and 22 of the Co-Owners’ agreement.

II.

Whether the District Court properly concluded that the retroactive designation of pre-1983 contributions of Co-Owners as loans accruing interest is unlawful and void.

Our task to determine if the District Court properly disallowed interest on pre-December 1983 contributions is an easy one, since the same reasoning for disallowing interest on post-December 1983 loans also applies to pre-1983 contributions. Again, the District Court properly found that appellants failed to follow paragraphs 21 and 22 of the Co-Owners’ agreement. Unanimous concurrence of all the Co-Owners regarding the charging of interest on pre-December 1983 contribution did not occur as mandated by paragraph 21; written notification was not given as mandated by paragraph 22.

Furthermore, the various interest rates the Co-Owners attempted to charge on the pre-December 1983 loan violated the usury statute § 31-1-107(1), MCA. The minutes of December 8, 1983 meeting show the parties never agreed as to the exact interest rate. Under § 31-1-107(1), MCA, the designation of any interest rate more than six percentage points above prime rate was usurious and illegal under the statute.

Finally, the District Court in its conclusion of law No. 4 realized the drastic effect of interest on the pre-December 1983 contributions would have on Goulding:

“The retroactive designation of pre-1983 contributions has the potential of wiping out the equity of original investors due to the fact that loans with accrued interest would be paid out of the escrow account prior to any other distribution; with such a drastic result occurring as earlier noted, without consent of and notice to all Co-Owners. The seriousness and forfeiture effect of this result triggers equitable principles of law. Equitably speaking, the freedom to contract retroactively cannot run rampant over the property interests and due process rights of one of the original contracting parties who was unaware of the meeting. Principles of equity, under the specific circumstances of this case, prohibit any retroactive designation. Therefore, the Court concludes the retroactive designation of the pre-December 1983 contributions of Co-Owners as “loans’ accruing interest is unlawful and void under the circumstances.”

We agree with the District Court’s conclusion that the effect of granting interest on the pre-December 1983 contribution unjustly deprived Goulding, the largest investor, of recouping any portion of his original investment.

The District Court’s conclusion is supported by a letter from Dr. March, a Co-Owner, who attended the December 8,1983 meeting. In the letter, introduced at trial, Dr. March stated that, “... escrow money should be divided in relation to the original equity payments made. On contacting several members of the group, they agreed with my assessment.” Dr. March, in the letter, goes on to refute the claims of the Co-Owners on the issue of interest. Dr. March wrote, “Monies related to excessive interest charged, were not raised in a proper fashion, in that according to the agreement for the group, resolutions were not properly circulated.” This obvious admission against the appellants’ position was considered by the court in its holding.

In its conclusion of law No. 6, the District Court stated: “Financial advances or contributions by Co-Owners made after the December 8, 1983 meeting of the partners should be added to each Co- Owners’ capital account. The monies remaining in escrow at this time should be paid out pro-rata, on all such capital accounts.”

In Felska I, 776 P.2d at 536 the majority of this Court determined that the “evidence supported a loan designation for the post-December, 1983, advancements.” Thus, conclusion of law No. 6 runs counter to what this Court decided in Felska I, and beyond the purpose of the remand from this Court. We modify the District Court’s conclusion of law No. 6 to state:

“6. Financial advances or contributions by Co-owners made after the December 8, 1983 meeting of the partners shall be construed as loans. The monies remaining in escrow at this time should be paid out accordingly as to loans and capital accounts.”

We leave it to the District Court to determine if the percentage of Goulding’s share of escrowed funds should be changed by reason of this modification.

As so modified, we affirm the District Court.

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

      “ *NOTE: The motion was originally given as ‘interest at Prime plus 4%/6%’ but because these interest rates were changed at a prior meeting, the appropriate rates are now being reflected.”


author: JUSTICE McDONOUGH

text:
    ROBERT P. BARRETT, Plaintiff and Respondent, v. ASARCO INCORPORATED, A New Jersey corporation, Defendant and Appellant.
    No. 90-161.
    Submitted on Briefs Sept. 6, 1990.
    Decided Oct. 25, 1990.
    799 P.2d 1078.

      James M. Ragain and Kyle A. Gray, Holland and Hart, Billings, for defendant and appellant.
    Gene A. Picotte, P. Keith Keller, Keller, Reynolds, Drake, Sternhagen and Johnson, Helena, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

In this case, a jury returned a verdict for plaintiff Robert P. Barrett on his theory that the defendant Asarco, Inc. breached the implied covenant of good faith and fair dealing in the employment relationship. The District Court denied Asarco’s motions for directed verdict, judgment notwithstanding the verdict, and new trial and entered its judgment in accordance with the jury’s verdict. Asarco appeals. We affirm the District Court.

Asarco raises the following issues on this appeal:

(1) Did the District Court err in denying Asarco’s motion for judgment notwithstanding the verdict and directed verdict on the grounds that there is no substantial credible evidence to support the jury’s finding that Asarco breached the implied covenant of good faith and fair dealing when it terminated Barrett’s employment?

(2) Did the District Court err in admitting into evidence the former trial testimony of the respondent’s brother, Sam Barrett?

(3) Did the trial court err in refusing to give Asarco’s proposed jury instruction regarding Montana law on the immediate payment of wages to discharged employees?

(4) Did the District Court err in refusing to grant Asarco a new trial based on alleged misconduct by Barrett’s counsel?

Barrett worked at Asarco’s East Helena smelter for 15 years. He began his employment in 1969 as an hourly worker and in 1973 he was promoted to shift foreman, a salaried managerial position. On November 26, 1983, Barrett injured his back while replacing a conveyer belt at the Asarco plant.

Approximately five months later, on May 8, 1984, Asarco terminated Barrett’s employment. At that time Barrett was still off work and receiving medical treatment. He was being paid full salary and Asarco was paying his medical bills. At the meeting when Barrett was terminated, the plant superintendent, Robert Hearst, confronted Barrett with information alleging that Barrett had been seen by another Asarco employee unloading hay bales at the Lewis and Clark County Fairgrounds in Helena while he was receiving full salary for his back injury from Asarco. According to his testimony, Barrett understood that he was being accused of “bucking bales” at a friend’s ranch rather than unloading hay for his race horses which he kept at the fairgrounds. Barrett denied that he was “bucking bales” and was subsequently fired by Asarco for allegedly lying about his physical activities while he was injured.

Barrett filed a complaint against Asarco on May 7, 1985, alleging that Asarco had breached the implied covenant of good faith and fair dealing in the employment relationship. The case was tried and the jury returned a verdict for Barrett. We reversed the judgment and remanded the case for new trial. See Barrett v. Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. The case was retried on November 13, 1989. The jury returned a verdict in favor of Barrett in the amount of $230,000.00 in compensatory damages. The District Court denied all of Asarco’s post trial motions and entered its judgment in accordance with the verdict. Asarco now appeals raising the aforementioned issues.

I.

The scope of our review of a jury’s verdict is narrow. Our function is to determine if there is substantial credible evidence in the record supporting the jury’s verdict. Krueger v. General Motors Corp. (1989), [240 Mont. 266,] 783 P.2d 1340, 1347, 46 St.Rep. 2114, 2122. Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Black’s Law Dictionary 1281 (5th Ed. 1979); Stanhope v. Lawrence (Mont. 1990), [241 Mont. 468,] 787 P.2d 1226, 1228-1229, 47 St.Rep. 438, 440. Although it may be based on weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous. Christensen v. Britton (Mont. 1990), [1989] [240 Mont. 393,] 784 P.2d 908, 913, 46 St.Rep. 2223, 2230. Where there is substantial evidence to support the jury’s verdict the district court’s refusal to grant a new trial will not be disturbed. Krueger, 783 P.2d at 1347; Brothers v. Town of Virginia City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467.

Under the law applicable in this case, the implied covenant of good faith and fair dealing is dependent upon objective manifestations by Asarco that would give rise to Barrett’s reasonable belief that he had job security and would be treated fairly. Stark v. Circle K Corp. (1988), 230 Mont. 468, 475, 751 P.2d 162, 166, citing Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020. Also, as we stated in our earlier remand of this case, the protection afforded Barrett by the covenant “necessarily hinges on the employee’s good faith performance of job duties because the covenant of good faith and fair dealing mandates a reciprocal duty.” Barrett, 763 P.2d at 32-33, citing Los Angeles Memorial Coliseum Commission v. NFL (9th Cir.1986), 791 F.2d 1356, 1361, cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). Thus, both parties are afforded protection by the reciprocal nature of the covenant, and to rebut allegations by an employee that the employer breached the covenant the employer need only show a fair and honest reason for termination. Stark, 751 P.2d at 166-167; Flanigan v. Prudential Federal Savings and Loan Assoc. (1986), 221 Mont. 419, 426-427, 720 P.2d 257, 261.

In the case at bar, both parties presented very different versions of the events surrounding Barrett’s termination. Much of Asarco’s brief is devoted to arguing its version of the conflicting evidence presented in this case. However, the scope of our review mandates that we concede Barrett’s evidence as true and draw all legitimate inferences in favor of Barrett. Krueger, 783 P.2d at 1347-1348; Brothers, 558 P.2d at 467. Accordingly, Barrett’s evidence is sufficient to sustain a verdict that Asarco breached the implied covenant of good faith and fair dealing when it terminated his employment. Barrett presented substantial credible evidence that he had a reasonable belief in job security. He was employed by Asarco for 15 years. He had been promoted to a salaried managerial position. He received regular raises and Christmas bonuses. His job involved supervising and training others, as well as responsibility for production in part of the plant. These are sufficient objective manifestations from which a jury could find the existence of the covenant.

Barrett also offered substantial credible evidence that Asarco lacked a fair and honest reason for terminating him and that Barrett did not breach his reciprocal duty of good faith. Asarco offered evidence to show that Barrett lied about his physical condition, took a fake sick leave, and slept on shift. At the termination meeting, Asarco accused Barrett of “bucking bales” while he was supposedly injured. Barrett’s testimony indicates that he did not associate this accusation with unloading some hay for his horses at the fair grounds. Barrett testified that because of shift changes, and inability to adapt sleep patterns, as well as the droning, humming noise in the plant, everyone, including him, occasionally falls asleep on the night shift. Barrett denied faking a sick leave. Barrett was also accused of leaving work early in 1981 and was given 4 days off without pay. This was the only time Barrett was ever subject to discipline by Asarco. Barrett was not on probation or subject to disciplinary proceedings when he was fired. Barrett offered testimony that his immediate supervisor, Bob Hearst, had a personal dislike for Barrett and was looking for any excuse to get rid of Barrett. Hearst had Barrett’s final paycheck made out prior to this termination meeting. The jury was instructed that if it found that Barrett had been dishonest with Asarco there could be no breach of the implied covenant by Asarco. The jury as fact-finder chose to believe Barrett’s version of the conflicting evidence offered at trial. It is not the function of this appellate court to overturn decisions on findings of fact made by a competent jury properly instructed on how to view the evidence. Gee v. Egbert (1984), 209 Mont. 1, 18-19, 679 P.2d 1194, 1203. Accordingly, we will not disturb the jury’s determination in this case because it is supported by substantial credible evidence.

II.

Asarco’s second issue alleges that the District Court erred in admitting the transcribed testimony from the first trial of Sam Barrett, the plaintiff’s brother, into evidence at the trial after remand. Asarco contends that Barrett failed to make a proper showing that his brother Sam was unavailable to testify and therefore admission of his prior testimony is reversible error. See, e.g. State v. LaCario (1974), 163 Mont. 511, 518 P.2d 982.

Rule 804 M.R. Evid. provides a hearsay exception for the use of former testimony if a witness is unavailable:

“Rule 804. Hearsay exceptions: declarant unavailable.

“(a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant:
“(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
“A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.
“(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, (A) in civil actions and proceedings, at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered ...”

Citing this rule, Asarco argues that Barrett did not make reasonable efforts to procure Sam’s attendance and therefore is precluded from using his prior testimony from the first trial on the grounds of unavailability.

We disagree. Generally it is within the discretion of the trial court to accept or reject counsel’s representations on unavailability. Republic Security Co. v. Puerto Rico Aqueduct and Sewer Authority, (1st Cir.1982), 674 F.2d 952, 957; Bailey v. Southern Pacific Transportation Co. (5th Cir.1980), 613 F.2d 1385, 1390. In this case, foundational testimony was given by the plaintiff Barrett outside the presence of the jury regarding the unavailability of his brother to testify at this second trial. Barrett testified that he told his brother the trial date and requested that he be present to testify. His brother allegedly assured him of his presence at the trial. Barrett testified that he was simply unable to locate his brother prior to and during the trial. Barrett argues that due diligence does not require issuance of a subpoena in this case because both Barrett and Barrett’s counsel believed that it would not be necessary to subpoena a family member to secure his attendance at trial.

The trial court, in its discretion, accepted this explanation. Asarco has the burden of demonstrating that the trial court erred as to whether reasonable means were used. Bailey, 613 F.2d at 1390. Asarco insinuates that Sam’s absence was somehow procured but fails to support such allegations with evidence. In short, Asarco has failed to meet its burden. Furthermore, Asarco experienced little or no prejudice by admission of such hearsay testimony in this, a civil proceeding because the parties and issues were identical, and Asarco had a full and fair opportunity to develop testimony from Sam Barrett on the same issues through cross-examination at the first trial. See generally, McCormick on Evidence, (3rd Ed. 1984), §§ 253-257; 4 Weinstein’s Evidence, § 804 (b) (1); and commission comments to Rule 804 M.R.Evid. and Rule 804 Fed.R.Evid. The District Court did not abuse its discretion in admitting the former testimony of Sam Barrett.

III.

Asarco also contends that the trial court erred by refusing to give Asarco’s proposed instruction regarding Montana law on immediate payment of wages to discharged employees. The instruction provided:

“You are instructed that Montana statutory law requires an employer who discharges an employee for cause to immediately pay all final wages due to the discharged employee.
“Failure to pay all such wages due will result in a monetary penalty to the employer.”

The instruction does in fact correctly state the law in Montana at the time Barrett was discharged. See §§ 39-3-205(2), 39-3-206, MCA (1983).

The record indicates that Asarco prepared Barrett’s final check prior to the meeting where Barrett was accused of “bucking bales” and was subsequently terminated. Barrett argues that this supports his theory that Hearst was out to get him; Barrett contends that the check was already made out because Hearst planned to fire him before Barrett had a chance to give his version of the facts.

On the other hand, Asarco argues that they merely drafted the check prior to the meeting so that they would be in compliance with the law if they decided to terminate Barrett pursuant to the meeting. They argue that this entitles them to have the jury instructed on this point.

We see little merit in Asarco’s argument. After questioning Barrett about the alleged hay incident, Hearst could have decided to terminate Barrett, informed him of such, and then just as easily complied with the law by requesting him to wait a few minutes while a final paycheck was prepared for him. Therefore, both sides were at liberty to argue Hearst’s intent in having the check drafted prior to ever meeting with Barrett. In refusing the instruction, the District Court noted:

“This instruction is also improper because it addresses a collateral issue in the case and not one that the jury was required to find for a verdict. It is immaterial to the jury whether the employer paid wages to the plaintiff immediately upon his discharge; termination procedure was not an issue. The defendant contends that this instruction was pertinent because evidence was presented that the employer had a termination check already made out before he determined whether cause for termination existed. The proposed instruction does not address the employer’s intent in this regard. Giving this instruction would serve only to confuse the jury and to distract them from the issues they were required to consider. Refusal of this instruction does not warrant a new trial.” (Emphasis added.)

We agree with this analysis. The proposed instruction would have only served to confuse and mislead the jury. The District Court did not abuse it’s discretion in refusing the instruction.

IV.

Finally, Asarco contends that plaintiff’s counsel engaged in misconduct warranting a new trial. It contends that Barrett’s counsel violated several motions in limine, made comments evincing a lack of respect for the court’s rulings and the judicial system, as well as a lack of respect for the appellate function of this Court.

Upon reviewing the record, we can find no error warranting a new trial. Asarco failed to object to the comments of Barrett’s counsel alleged as misconduct except for one instance during closing argument where the objection was apparently overruled and the trial judge cured any prejudicial error by admonishing the jury that nothing said by counsel in argument was evidence. Failure to object to alleged error at trial precludes an appellant from raising that issue on appeal. Matter of B.L.O. (1984), 213 Mont. 164, 169, 689 P.2d 1246, 1249.

Asarco also failed to object to what it now alleges on this appeal are violations of the District Court’s in limine rulings regarding emotional distress claims, negative publicity suffered by Barrett due to the first trial and appeal, and exclusion of due process arguments concerning termination procedure. A motion in limine is a pre-trial objection to evidence and need not be continually renewed to preserve alleged errors for appeal. Beil v. Mayer (Mont. 1990), [242 Mont. 204,] 789 P.2d 1229, 1232-1233, 47 St.Rep. 661, 665. Regardless, none of the alleged violations of these motions constitutes error sufficient to warrant a reversal by this Court in this case.

First, the District Court did not preclude in limine evidence on emotional distress, rather, the record shows that the court directed a verdict in favor of Asarco on Barrett’s emotional distress claims after Barrett’s case-in-chief. Any error arising from a reference to emotional distress damages by Barrett’s counsel should have been preserved with an objection.

In ruling on the motion concerning damages to plaintiff growing out of a post-trial newspaper article, the trial court stated:

“On motion two, post remand problems which occurred by reason of newspaper articles brought about by publicity from the reversal by the Supreme Court, I don’t think that is actionable. Even if he is distressed by the newspaper articles I don’t see how that is the fault of the Defendant and so I would have been inclined to grant that.”

(Emphasis added.)

Asarco alleges that the following statement by Barrett’s counsel violates this ruling:

“They trashed him. They ruined him. Gave him six years of agony, humiliation.”

These comments make no reference to any newspaper articles, or the affect thereof, and therefore do not violate the order.

When asked by his counsel the effect the termination had on his relationship with his family Barrett did mention the newspaper article. The record contains the following testimony:

“A. Well, I have had a hard time trying to explain to my kids some of the things they put in the newspaper.
“Q. (By Barrett’s counsel.) No, wait a minute. There is an order about that.
“MR. RAGAIN (Counsel for Asarco): Your honor, I want the jury instructed to disregard that remark. Especially with regard to they putting [sic] in the newspaper. I want it clear that my client had nothing to do with putting anything in the newspaper.
“THE COURT: The jury is instructed to please disregard that comment of the witness.”

From the record it appears that Barrett’s counsel did not attempt to solicit this response. Furthermore, the jury was fully admonished to disregard the answer. We will not reverse a judgment unless error affects the substantial rights of a party. Dahlin v. Holmquist (1988), 235 Mont. 17, 21, 766 P.2d 239, 241. Any prejudice suffered by Asarco here was minimal, and certainly did not rise to such a level as to deprive Asarco of a fair trial. See e.g. Krueger v. General Motors Corp., supra, 783 P.2d at 1349.

Finally, Asarco alleges that Barrett’s counsel violated the motion in limine regarding due process in termination procedures during his closing argument. We disagree. In ruling on the motion, the District Court stated that evidence of the termination proceeding was inadmissible on the question of due process but would be admissible on the question of whether Asarco had a fair and honest reason for terminating Barrett. Regarding these questions, the Court stated that it would “rule on them as they come up.” In closing, Barrett’s counsel argued:

“Now they haven’t got any system in this company. Nobody ever made a memorandum of this after it was over. You work for the state or any other big organization I know about and my God you would have a file on this case this thick before the guy was ever even fired. He would have hearings and have all kinds of due process and law and everything. But as Your Honor instructed you they didn’t have to bring a witness against him. Didn’t even have to give him any notice as long as you think they had a fair and honest reason for firing him. That is the bottom line.” (Emphasis added.)

Here, counsel's argument went solely to the issue of whether Asarco had a fair and honest reason for terminating Barrett. No error was committed.

Furthermore, the District Court has discretion in determining whether misconduct so prejudices a party as to warrant reversal:

“The standard of review for this Court in determining whether a mistrial was appropriately denied is whether there is manifest abuse of the District Court’s broad discretionary power. (Citations omitted).
"... The District Court judge ... is in the best position to determine the prejudicial effect of the attorney's blatant misconduct on the jury.” Kuhnke v. Fisher (1987) 227 Mont. 62, 68, 740 P.2d 625, 628. (Kuhnke II.) Here, we cannot conclude that the District Court abused its discretion. The judgment is

AFFIRMED.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALLEN RAY "SPEEDY" MATT, Defendant and Appellant.
    No. 90-180.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 25, 1990.
    799 P.2d 1085.

      Benjamin R. Anciaux, Poison, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia Schaeffer Jordan, Asst. Atty. Gen., Helena, Larry Nistler, County Atty., and Robert S. Anderson, Deputy County Atty., Poison, for plaintiff-respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Allen Ray Matt appeals from the judgment of the Twentieth Judicial District, Lake County. Following trial and conviction for the offenses of domestic abuse, third offense and tampering with a witness, Matt was sentenced to five years, with two years suspended and ten years with five years suspended. The District Court further ordered these terms to be served consecutively and designated Matt a dangerous offender for purposes of parole. We affirm.

The issues we find pertinent to our review are:

1. Whether the State improperly introduced evidence of other crimes, wrongs and acts of Matt;

2. Whether the State violated the District Court’s discovery order or intentionally suppressed evidence;

3. Whether the information was insufficient to give Matt notice of the charges against him;

4. Whether Matt was subjected to double jeopardy on the charge of domestic abuse;

5. Whether the evidence was insufficient to support a verdict of guilty for the offense of tampering with a witness;

6. Whether there was cumulative error in the proceedings and trial against Matt.

The offenses which are the subject of this appeal arose out of prior incidents of domestic abuse which involved Matt, and the principle witness, Violet Weaselhead. Apparently Matt and Weaselhead were engaged to be married. However, after some disagreements, Matt assaulted Weaselhead on April 30 and May 1, 1989. Matt was convicted of these offenses in Justice Court on July 18, 1989.

On May 2,1989, following his arrest for domestic abuse, Matt went to Weaselhead’s home. They then entered into a discussion about their relationship, which became heated. According to the record, Matt became angry and struck Weaselhead on the side of the head. Apparently, he also threatened her in the event she testified against him for the prior incidents of domestic abuse.

Following this incident, Matt was arrested and charged with domestic assault and tampering with a witness. After his conviction on the two prior domestic abuse cases, the prosecutor amended the information to change the offense of domestic abuse to domestic abuse, third offense, a felony.

Prior to trial, Matt submitted a motion in limine to prevent the introduction of any evidence of his prior two convictions into evidence. This motion was granted, to the extent that the evidence could not be used to prove intent to commit or a pattern of domestic abuse. However, the District Court did allow the State to introduce evidence that a charge had been filed and that Matt knew that a complaint had been filed against him for the limited purpose of proving the offense of tampering with a witness.

Following trial and conviction, the District Court sentenced Matt to five years with two years suspended for the offense of domestic abuse. It also sentenced Matt to a term of ten years, with five years suspended for the offense of tampering with a witness. The District Court ordered these terms to be served consecutively and designated Matt a dangerous offender. This appeal followed.

I.

Matt argues that the State improperly introduced evidence of his two prior convictions for domestic abuse. According to Matt, the State, in violation of the procedures set forth in State v. Just (1979), 184 Mont. 262, 602 P.2d 957 and the District Court’s order, improperly introduced evidence of Matt’s two prior convictions. He further argues that the State’s conduct prevented him from preparing his defense, because the introduced evidence was unexpected and no warning was given of its possible introduction.

Section 45-7-206(1), MCA, outlines the elements which must be proven by the State in order to obtain a conviction for the offense of tampering with a witness. The statute states:

“A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, he purposely or knowingly attempts to induce or otherwise cause a witness or informant to:
“(a) testify or inform falsely;
“(b) withhold any testimony, information, document, or thing;

The clear language of the statute requires the prosecution to prove that Matt knew an “official proceeding or investigation was pending or about to be instituted” and that he purposely or knowingly attempted to induce Violet Weaselhead to withhold testimony at his upcoming trial for domestic abuse. In order establish these elements, it was necessary to prove that Matt knew these charges were pending against him and that Weaselhead would be a witness at his trial.

Recognizing this, the District Court allowed evidence of the pending charges to be introduced into evidence. It strictly limited its use, however, and only allowed its introduction for the purpose of proving the elements of tampering with a witness. The District Court forbade the prosecution from using the evidence to establish any proof of the domestic abuse charge. In order to accomplish this goal, the State was precluded from introducing any testimony which would inform the jury of Matt’s convictions for domestic abuse. It was only allowed to introduce evidence that Matt knew that a complaint had been filed. The State was not allowed to describe the nature of the crimes involved in the complaint.

The introduction of this evidence was clearly for the purpose of proving the elements of tampering with a witness. There is no indication that it was used to prove the character of Matt. Nor was it used to establish motive, opportunity, preparation or absence of mistake. See Rule 404(b), M.R.Evid. Given the limited purpose of this evidence, the trial court was not required to comply with the conditions set forth in State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

Matt further argues that the State introduced evidence of earlier incidents of domestic abuse during other portions of the trial. We have reviewed the transcript in full and have found that references to prior crimes were either elicited by Matt’s attorney or were spontaneous comments made during witness testimony. Matt failed to register an objection to or request the judge to strike such testimony. We, therefore, find no reversible error in the introduction of the evidence.

II.

Matt next argues that the State violated the District Court’s discovery order and that the State intentionally suppressed evidence. In support of this contention, Matt argues that the State did not supply him with copies of Weaselhead’s police statement or photographs of her injuries until the eve of trial. He also argues that the State never provided him with any paperwork concerning the prior domestic abuse charges. In order to ameliorate this problem, Matt maintains that the District Court should have sanctioned the State by either forbidding it from utilizing the nondisclosed evidence or declaring a mistrial.

The State, on the other hand, argues that it was not required to provide Matt with any of the evidence. According to § 46-15-322(1), the State need only “make available to the defendant for examination and production” all relevant documents. The State maintains it complied with this duty by allowing defense counsel full opportunity to examine its files. According to the prosecuting attorney, the files were open “to scrutiny by defense counsel.”

Apparently, this right was not exercised. However, this fact cannot form a basis to support Matt’s contentions that the State willfully suppressed evidence or refused to abide by the trial court’s discovery order. There is no evidence that the State refused any request by defense counsel to examine any relevant evidence. Accordingly, Matt’s contentions on this issue must fail.

III.

Matt next argues that the information was insufficient to inform him of the charges pending against him. He maintains that the information did not sufficiently apprise him of the facts surrounding the charge of tampering with a witness.

We begin our analysis with the observation that the purpose of an information is to reasonably apprise the person of the charges against him so that he may have an opportunity to prepare his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971. In determining its sufficiency, the test to be applied is whether a person of common understanding would know what was charged. State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436.

In order to insure these requirements are met, the legislature has passed § 46-ll-401(l)(c), MCA, which provides that an information shall:

“(c) charge the commission of an offense by:
“(i) stating the name of the offense;
“(ii) citing in customary form the statute, rule, or other provision of law which the defendant is alleged to have violated;
“(iff) stating the facts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended;
“(iv) stating the time and place of the offense as definitely as can be done; and
“(v) stating the name of the accused, if known, and, if not known, designating the accused by any name or description by which he can be identified with reasonable certainty.”

The amended information charged Matt with felony tampering with witnesses under § 45-7-206(1), MCA. It further alleged:

“In the District Court of the Twentieth Judicial District of the State of Montana, in and for the County of Lake, on the 25th day of July, 1989, the above-named Defendant is accused by the Deputy County Attorney of said County in the name and by the authority of the State of Montana by this Information, of the offenses of DOMESTIC ABUSE, Third Offense, a Felony, Count I, as specified in MCA 45-5-206(1) (a), with punishment as provided in MCA 45-5-206(3) (fined [sic] not to exceed $50,000 or be imprisoned in the state prison for a term not to exceed 5 years, or both); and TAMPERING WITH WITNESSES AND INFORMANTS, a Felony, Count II, as specified in MCA 45-7-206(1), with punishment as provided in MCA 45-7-206(2) (imprisoned in the state prison for a term not to exceed 10 years, or be fined not more than $50,000, or both), committed as follows:
“COUNT TT
“On or about May 2, 1989, near St. Ignatius, Lake County, Montana, the above-named Defendant, believing that an official proceeding or investigation was pending or about to be instituted, purposely or knowingly attempted to induce or otherwise cause a witness to withhold testimony or testify falsely, when he threatened Violet Weaselhead with physical harm if she assisted in the prosecution of criminal charges against him.”

As the above paragraphs make evident, the amended information named the defendant, cited the statute, recited the statutory name of the crime, stated the facts of the crime and stated the time and place of the crime. It clearly met all statutory requirements. However, Matt claims he was unaware of what charges or investigation was pending against him and that he was therefore unable to prepare his defense.

We find this position untenable. The record clearly indicates that the defendant was arrested on May 1, 1989, for two domestic abuse charges involving Violet Weaselhead. The information informed Matt that the witness tampering charge involved threats against Weaselhead. There is no evidence of any other charges pending against Matt, which involved Weaselhead. Clearly, enough information was provided for a person of common understanding to be put on notice of the offense charged.

IV.

On the first day of trial, Matt moved to dismiss the charges based upon double jeopardy. Prohibitions against double jeopardy are contained in the Fifth Amendment of the United States Constitution and Article II, Section 25 of the Montana Constitution. The prohibition contained in these provisions protects a criminal defendant against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense. State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339 rev’d on other grounds 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354, per curiam.

Matt argues that he is unsure whether he was tried twice for the same offense. He maintains that due to the ambiguous nature of the information, he is unable to determine which domestic abuse charge was the subject of his trial.

We find no merit in this argument. Matt was charged with two counts of domestic abuse, one committed on April 30 and the other committed on May 1, 1989. He was tried and convicted in Justice Court on these two offenses. He was also charged with domestic abuse for an incident which occurred on May 2, 1984. This offense occurred at the same time Matt committed the offense of tampering with a witness. This third domestic abuse charge was further distinguished by the fact that it was charged as a felony. It is clear that Matt was not tried for the same offense twice. The prohibition against double jeopardy does not protect a defendant against successive trials on separate counts arising from separate incidents. Matt’s contentions on this issue were therefore properly dismissed.

V.

Matt next argues that there was insufficient evidence to support the jury’s verdict of guilty on the offense of tampering with a witness. We disagree. In reviewing a jury verdict, this Court has adopted the following standard of review:

“[T]he relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

See State v. Jackson (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560.

The elements which must be proven to support a verdict of guilty for the offense of tampering with a witness are:

1) A person

2) believing that an official proceeding or investigation is pending or about to be instituted

3) purposely or knowingly attempts to induce a witness

4) to withhold testimony.

See § 45-7-206, MCA.

The evidence introduced dining trial established that Matt was arrested and charged with a crime on May 1. These charges were still pending on May 2. Weaselhead testified that, as a result of these charges, Matt told her he was on bail and was not supposed to have any contact with her. This testimony clearly established Matt’s knowledge that charges were pending against him. As to the intent to cause a witness to withhold testimony, Weaselhead testified that Matt told her not to go to court and pursue the charges, and that if she did, either he or his friends “would get her.” This testimony is sufficient to establish the intent to induce her not to testify. A reasonable juror could have found the elements of the crime beyond a reasonable doubt.

VI.

Finally, Matt argues that this Corut should reverse the jury verdict on the grounds that cumulative error prejudiced his right to a fair trial. We have found no prejudicial error and therefore the doctrine does not apply.

Affirmed.

JUSTICES BAEZ, SHEEHY, WEBER and McDONOUGH concur.


author: JUSTICE HARRISON JUSTICE McDONOUGH,

text:
    SHANE HENDRICKSON, Plaintiff and Appellant, v. TODD A. POCHA, and K-Bar M Ranch, Defendants and Respondents.
    No. 90-208.
    Submitted on Briefs Aug. 23, 1990.
    Decided Oct. 25, 1990.
    799 P.2d 1095.
    James A. Manley, Manley Law Office, Poison, for plaintiff and appellant.
    Steven S. Carey, Garlington, Lohn & Robinson, Missoula, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from summary judgment entered against the plaintiff in favor of both defendants by the District Court of the Fourth Judicial District, in and for the County of Missoula. We affirm the District Court’s grant of summary judgment.

Issue on review:

Whether the District Court erred in granting summary judgment.

This case involves an accident which occurred on Montana Highway 200, near mile post 25, between Missoula and Great Falls on February 24, 1988 at approximately 8:15 am. At the time of the accident, plaintiff, Shane Hendrickson, was an experienced long-haul truck driver. Defendant K-Bar M Ranch (K-Bar) owned a ranch along the highway where the accident occurred. Defendant Pocha was employed by K-Bar at the time.

Hendrickson, whose vehicle rear-ended Pocha’s vehicle, sued for damages.

Montana Highway 200 is a busy east-west, two-lane highway. It is the major route for long-haul trucks between Missoula and Great Falls.

On February 24, 1988, Hendrickson left Dixon at approximately 5:30 a.m., bound for Great Falls. His truck was fully loaded with lumber. Plaintiff testified that his truck had new tires and was in excellent mechanical condition.

At approximately 8:15 am. on the morning of the accident, Pocha was pulling a round bale feeder with K-Bar’s Ford tractor for approximately two miles on the highway to get to another section of the ranch to feed cattle. Pocha testified by affidavit that he did this approximately six or seven times a week. Pocha pulled onto the highway approximately four-tenths of a mile west of the bridge where the accident occurred. Pocha was traveling at an undetermined slow rate of speed heading in an easterly direction, toward the bridge.

Shortly thereafter, Hendrickson drove his semi-truck over the top of Greenough Hill approximately one-half mile from the bridge and heading east as well. Hendrickson testified by affidavit that as he came over the hill he did not see the Pocha vehicle because of contours in the road, and the positions of the respective vehicles. Hendrickson stated in his deposition that when he first saw the Pocha vehicle he was “probably less than a quarter of a mile” from it.

Both parties agree that the accident could not be avoided by either pulling into the other lane due to an on-coming logging truck or by pulling onto the right shoulder of the road due to its steep terrain.

Hendrickson described what happened as follows:

“[A]nd then I seen the tractor just before then, and then I jumped on the brakes and I geared down a couple of times, but as I said before, I was doing approximately 50 miles an hour, and I had a full load on, and there just wasn’t enough distance in between to stop.” (Emphasis added.)

Indeed Hendrickson was unable to stop before striking the Pocha vehicle from behind. Both agree that on the morning of the accident the sky was blue and the roads were clear and dry.

Hendrickson filed his complaint May 6, 1988. Following service of process, defendants filed their answer and counterclaim August 2, 1988. Hendrickson filed a reply to the counterclaim August 5,1988.

On June 14,1989, following discovery, defendants moved for summary judgment. The motion was briefed, argued, and on October 12, 1989, the District Court entered summary judgment on the issue of liability in favor of defendants. There being no dispute as to the damages awardable to defendants, judgment was entered in favor of defendants on February 15, 1990.

Notice of entry of judgment was filed February 21,1990. Hendrickson filed his notice of appeal March 6, 1990.

Upon appeal, the only question is whether there is a genuine factual issue concerning the respective negligence of the parties involved. Hendrickson maintains that in granting summary judgment the District Court incorrectly concluded that the defendants had sustained their burden of demonstrating a complete absence of any genuine issue of material fact.

Ordinarily issues of negligence are not susceptible to summary adjudication. Hendrickson v. Neiman (1983), 204 Mont. 367, 665 P.2d 219. We must be extremely cautious in reviewing grants of summary judgment in this area for the issues involved in a determination of negligence are better resolved at trial.

The purpose of Rule 56, M.R.Civ.P., is to dispose of those actions which fail to raise genuine issues of material fact, thereby eliminating the burden and expense of an unnecessary trial. VanUden v. Hendricksen (1980), 189 Mont. 164, 615 P.2d 220.

The burden upon the moving party as stated in Rule 56(c), M.R.Civ.P., is:

“The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.”

To satisfy its burden of proof, the movant must provide the court with evidence which clearly indicates what the truth is, and which excludes any real doubt as to the existence of a genuine issue of material fact. VanUden at 167, 615 P.2d at 222.

Once the movant has discharged its burden of proof under Rule 56(c), M.R.Civ.P., it becomes incumbent upon the party opposing the motion to come forward with substantial evidence raising a genuine issue of material fact. Rule 56(e), M.R.Civ.P.; Riley v. Carl (1981), 191 Mont. 128, 622 P.2d 228.

Here, both plaintiff and defendants filed briefs and other supporting documents, including sworn affidavits, with defendants’ motion for summary judgment.

This Court finds that there is no issue of material fact in this case and summary judgment was properly granted. The evidence shows that Pocha did not violate a single traffic law in operating his vehicle when the collision occurred. On the other hand, the evidence clearly shows that Hendrickson violated every law on the books that pertains to a vehicle overtaking another with a possibility of passing it.

Whether Pocha was driving his farm vehicle at 5 to 10 miles per hour, or 20 or 30 miles per hour, makes no difference as to Hendrickson’s negligence. Pocha was lawfully upon the highway and Hendrickson owed a duty to Pocha to avoid striking his vehicle while it was lawfully on the highway.

Hendrickson violated the following statutes in causing the collision:

Section 61-8-303, MCA. Under this statute, it was Hendrickson’s duty to operate his vehicle on the public highway in a careful and prudent manner, and at a rate of speed no greater than was reasonable and proper under the conditions existing in the point of operation, and he was required to drive his truck so as not to unduly or unreasonably endanger the life, limb, property or other rights of persons entitled to the use of the street or highway. Further, under this statute, he was required to drive at an appropriate reduced speed when approaching a hill crest, or when a special hazard existed with respect to other traffic then on the highway.

Section 61-8-323, MCA. Under this statute, the driver of a vehicle overtaking another vehicle proceeding in the same direction is required to pass to the left thereof at a safe distance, and may not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

Section 61-8-325, MCA. Under this statute, Hendrickson was forbidden to overtake and pass Pocha unless the left side of the roadway was clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of either the oncoming vehicle or the vehicle being overtaken. Moreover, under this statute, the vehicle was not to be driven to the left of the roadway or attempt to pass when approaching the crest of a grade or upon a curve of the highway or where the driver’s view was obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.

Section 61-8-328, MCA. This statute requires that where the roadway is divided in two or more clearly marked lanes for traffic, the vehicle shall be driven as nearly as practicable entirely within a single lane, and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

Section 61-8-329, MCA. This statute requires that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and with due regard to the speed of such vehicle and the traffic upon and the condition of the highway.

Section 61-8-361, MCA. Under this statute, the driver of a motor vehicle traveling through narrow valleys, canyons or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway as reasonably possible.

Under the foregoing statutes, it was the duty of Hendrickson, driving over roadways where the view was obstructed by reason of hills or possibly by sunshine, to operate his motor vehicle in such a way that he could stop his unit and avoid striking or colliding with another vehicle lawfully upon the highway. Clearly he did not follow this requirement.

In Farris and Senecal v. Clark (1971), 158 Mont. 33, 37, 487 P.2d 1307, 1309, this Court upheld a judgment in favor of the overtaken vehicle stating:

“This Court long ago ruled on the liability of a person who negligently collides with another vehicle while attempting to pass. In the case of McDonough v. Smith, 86 Mont. 545, 550, 284 P. 542, 544, this Court held:
“ ‘The person passing is negligent if he so carelessly directs or manages his automobile that a collision results, or if he attempts to pass in a time or under conditions which are not reasonably safe.’ ”

Again, in Custer Broadcasting Corporation v. Brewer (1974), 163 Mont. 519, 518 P.2d 257, this Court again stated:

“Considering the propriety of granting a directed verdict, this Court in Holland v. Honda, 142 Mont. 536, 541, 385 P.2d 272, 275, stated:

“ ‘ “No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence.” [Citing case]
“ ‘This rule is firmly established by other decisions of this corut, and we feel that further citation on the point is unnecessary.’
“However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collision rests upon the following driver.
“In Farris and Senecal v. Clark, 158 Mont. 33, 37, 487 P.2d 1307, a recent rear end collision case, this Court sustained the trial corut’s decision to grant summary judgment for plaintiffs. There we reviewed the fact situation not unlike the instant case, except that here it was a daytime accident and in Farris it was nighttime ...
“This Court has long held that violation of a statute concerned with highway traffic is negligence as a matter of law. Farris should have controlled the court’s decision in considering plaintiffs’ motion for a directed verdict.”

Custer Broadcasting Corporation, 163 Mont. at 521-22, 518 P.2d at 259.

In this case, Hendrickson’s own admission is that he was driving a tractor and trailer loaded with lumber in such a manner that even at his claimed speed of 50 miles an hour, he could not bring his unit to a stop within a quarter of a mile without colliding with another vehicle lawfully on the roadway. His single negligence is completely the cause, without any argument. The District Corut was correct in granting summary judgment to Pocha and his employer.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY and HUNT concur.

JUSTICE McDONOUGH,

dissenting:

In this era of comparative negligence there are the following issues of material fact relative to the defendant’s negligence:

Whether the hazard warning lights were flashing and whether slow moving emblems were affixed to the back of both the tractor and the bale feeder, in compliance with §§ 61-9-219(4) and 61-9-415, MCA.

Whether the defendant’s warning flashers and the slow moving emblems were partly or totally obscured because of dirt, mud and flying hay and debris, in violation of § 61-9-219(4), MCA.

Whether defendant was traveling without the exercise of due care (too slowly) considering the contours of the highway. See §§ 61-8-311 and 61-8-303, MCA.

These issues of material fact prohibit summary judgment, and I would reverse and remand for further proceedings and trial.

JUSTICES BARZ and WEBER concur in the foregoing dissent.