author: MR. CHIEF JUSTICE TURNAGE

text:
    DONALD TACKE, Plaintiff and Appellant, v. VERMEER MANUFACTURING CO., Defendant and Respondent.
    No. 84-279.
    Submitted Oct. 29, 1985.
    Decided Jan. 23, 1986.
    713 P.2d 527.

      Regnier, Lewis & Boland, Stephens D. Roberts, argued, Great Falls, for plaintiff and appellant.
    Marra, Wenz, Johnson & Hopkins, Joseph Marra & David E. Bauer, argued, Great Falls, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff appeals a jury verdict entered in the Eighth Judicial District, Cascade County, on May 15, 1984, in favor of defendant, manufacturer and seller of Vermeer 605C large round hay baler with compression feed rollers. Plaintiff lost part of his right foot as a result of an accident involving the compression feed rollers.

We remand for a new trial. Because of instructional and procedural error, including a denial of a juror challenge for cause, plaintiff was denied a fair trial.

Donald Tacke filed a complaint against Vermeer Manufacturing Company (Vermeer) on September 10, 1982, to recover compensatory and punitive damages for personal injuries suffered on September 12, 1979. Vermeer manufactured and sold the Vermeer 605C large round hay baler with compression feed rollers involved in the partial amputation of plaintiff’s right foot. Plaintiff sued under theories of strict products liability, negligence and breach of warranty. Following jury trial which commenced on March 26, 1984, the jury returned a 9-3 verdict in favor of defendant.

Plaintiff appeals, raising the following issues for our consideration:

1. Was it reversible error to deny the challenge for cause of a prospective juror who was the wife of a local seller of the manufacturer’s product?

2. Was it reversible error to exclude evidence of similar accidents involving the product and to narrow strictly the “similar accident” definition?

3. Was it reversible error to allow defense to elicit expert testimony from a witness never listed in pretrial discovery as a proposed expert?

4. Was it reversible error for the trial court to offer instruction No. 13 which misstated plaintiff’s theory of the case and denied plaintiff two of his contentions?

5. Was is reversible error to offer the court’s instruction No. 20 on manufacturer’s duty to warn which was in conflict with the evidence and the law?

Because we find sufficient reason to remand, we will not consider additional issues raised, including judicial comment upon testimony in the presence of the jury, an instruction given on proximate cause, plaintiff’s refused instruction on defects that enhance injuries, and a refusal to accept an offer of proof in rebuttal to defendant’s opening statements.

Donald Tacke, a hired hand at the Mehmke ranch east of Great Falls, Montana, was baling barley straw, pulling a Vermeer 605C large round baler behind the tractor. Vermeer balers have no engines; they operate on power transferred from the tractor through a power take-off (PTO) shaft. This particular model has compression rollers. As the baler is pulled through the field, its pickup reel with revolving metal pickup teeth turns rapidly and lifts the already swathed or combined crop from the ground. The pickup reel guides the straw into two compression rollers which operate under 800 pounds of pressure to press the straw into a kind of ribbon to feed into the bale chamber. In the bale chamber a series of belts compacts the straw into a tight round bale about six feet by five feet. The tightness of the bale is determined by the belts in the belt chamber.

Tacke had run into problems with straw building up in front of the compression rollers, plugging up and preventing further feeding of straw into the machine. As he had many times before, he dismounted from the tractor leaving the PTO on. His boss had done the same thing, warning not to do so: “Do as I say, not as I do.” There was a decal on the machine recommending turning off the PTO. However, it was a common practice not to turn off the PTO if the build-up was in front of the rollers because it took longer with the machine off to clear the plug. The operator had to get in and manually pull out the straw. With the PTO on, a quick kick could clear the plug. The 605C plugged frequently, and the frustration to get the job done led the operators to choose expedience. On September 12, 1979, when Tacke kicked the plug with his foot, the compression rollers pulled his foot in, and he lost part of his right foot.

Vermeer now also makes open-throat balers in which the hay feeds directly into the bale chamber. Gary Vermeer designed the compression roller baler in 1975, although he knew that the previous Allis Chalmers model had accidents in its feed rollers. There were other patented concepts for noncompression roller balers when Vermeer marketed the 605C in 1972. When this baler was sold in 1975, Sperry-Holland had already marketed an open-throat baler.

Stanley Vermeer, Gary’s son, designed an open-throat model which Vermeer marketed after July 1976. He testified by deposition that the open-throat model eliminated one place where humans could be injured — the feed in-take area. Neither of the Vermeers had training in engineering or design.

During the jury selection on March 26, 1984, prospective juror Jean Mundt informed the court that her husband sold Vermeer balers for the area. The court denied plaintiff’s challenge for cause of juror Mundt even though she thought her husband might have sold the baler involved in the case. She knew that her husband and Carl Mehmke, owner of the baler, “had worked together on this project.” She believed that her husband thought the product was safe. When questioned as to any difficulty in being equally fair to both sides, she said, “Well, perhaps. I can’t — I don’t know. Perhaps I would.” She then stated that she thought if she heard the whole thing she could judge it. The court denied plaintiffs second attempt to challenge juror Mundt for cause, concluding that she would be fair and impartial. Finally, plaintiff was forced to use a peremptory challenge left to exclude a prospective juror who indicated that certain product liability suits were specious and pricing manufacturers out of business.

At trial, plaintiff’s theory of the case was that the Vermeer 605C baler was defective and unreasonably dangerous because compression feed rollers were an unnecessary hazard and were inadequately guarded, warning decals violated industry standards and were inadequate, and lack of an emergency shut-off in the design unreasonably enhanced plaintiff’s injuries. Plaintiff presented expert testimony to demonstrate that the hazards were unreasonable because design modification could guard against the compression rollers. Further, the design was unnecessary in the first place because Vermeer and others had successfully designed and sold balers without compression rollers and the state of the art would have allowed it in 1975 when the baler was purchased.

Plaintiff tried to present testimony that Vermeer had notice that the 605C was unsafe because numerous accidents were reported, in contrast to no accidents reported in its bale chamber on open-throat balers. The court also strictly limited the introduction of accidents to those feed-intake accidents in which the PTO was left on when the operator left the tractor, “. . . similar accidents where there has been an intentional act on the part of the operator for getting into those compression rollers while the PTO was operating.”

Plaintiff’s counsel in his case-in-chief presented expert testimony from John Sevart, a licensed professional mechanical engineer in private practice with experience in safety and human factors in the design of mechanical equipment. Plaintiff also called Ivan Brand, production safety director at Vermeer since 1977, as an adverse witness. His duty at Vermeer is devoted primarily to product liability litigation. Before he took this position in 1977, Vermeer had no safety director.

Defense counsel in his case-in-chief called Randall Swanson and Roger MacCarthy to testify as experts and presented expert testimony from Lee Carr by deposition. Vermeer had listed these three as experts in answer to interrogatories requesting that Vermeer furnish names of experts and expected subject matter.

Defense also called George McConeghy, a former employee of Massey Ferguson (“Massey”), who was apparently present to discuss the arms-length transaction between Massey and Vermeer in the purchase of balers to sell under the Massey trademark. McConeghy was not listed as an expert witness. In his trial testimony, he narrowed the input of his company on the balers to a “subjective safety evaluation” with him as “more or less the team leader in a rough sort of way,” providing “both functional and subjective safety evaluations.” Under cross-examination, McConeghy stated that he never worked as an engineer on the board at Massey and had no training in human factors. His testimony basically centered upon the fact that Vermeer was the only manufacturer which would let Massey market its baler in exchange for a “hold harmless” deal. On redirect examination, defense asked for McConeghy’s expert opinion: “Do you believe that this machine is defective or unreasonably unsafe?” Plaintiffs objection was overruled, and McConeghy proceeded to testify emphatically that the machine was not defective nor unsafe, and that the cause of the accident was operator omission and commission.

In settling jury instructions, the court gave its own instruction No. 13:

“You are instructed that: The Plaintiff has alleged that the Defendant manufactured the Vermeer 605C baler which was defectively designed and unreasonably dangerous for its intended use because the power operated rollers were not covered by any guarding or protective device, and the Defendant did not adequately warn the Plaintiff of the danger. In order to recover on the allegation of the design defect, the Plaintiff must prove:
“First, that the Defendant designed and manufactured the 605C round hay baler which at the time of manufacture was defective in design and unreasonably dangerous to the user because the power operated rollers were not covered by any guarding or protective device or the warnings of the danger were inadequate.
“Second, that at the time of the accident the 605C round hay baler was being used by Donald Tacke in a manner reasonably anticipated by the Defendant.
“Third, that the defective design of the 605C round hay baler or inadequate warnings of the danger proximately caused injury to the Plaintiff.”

Plaintiff objected that the court’s instruction left out the central contention that the rollers were an unnecessary hazard in the first place.

The court also offered its own instruction No. 20 on duty to warn, despite plaintiff’s objections to the last two sentences:

“. . . There is no duty on the part of a manufacturer to give a warning of a product-connected danger where the person who claims to be entitled to the warning actually knows of the danger. A person is not entitled to be warned about something he already knows.” John. Sevart, plaintiff’s expert had testified at the trial:
“The purpose of an appropriately designed warning is to reduce the risk associated with the hazard in two ways. First to inform the uninformed or the inexperienced person, and secondly to remind the person who is knowledgeable of the machine that might forget that the hazard was present.” [Emphasis added.]

Ivan Brand, Vermeer’s corporate representative, also conceded that one purpose of an adequate warning would be to remind someone of a known hazard or danger. Brand acknowledged that the warning decal sent out two years after Tacke’s accident complied with applicable industry standards, unlike the decal at the time of the accident which did not include the appropriate signal word, colors, or recommended safety alert symbol. The later symbol specifically described the hazards of the compression rollers and had a drawing of a person caught in the rollers. In contrast, the worn decal on the baler Tacke operated had a warning: “Caution Accidents can be avoided by observing the rules for safety given below.” Below in smaller letters were six instructions. Number 2 said to disengage PTO before leaving tractor seat; Number 5 admonished to use “adequate HP tractor”; and Number 6 recommended studying the manual before operating the machine. Nowhere was there specific warning on the hazard of the rollers.

I

Refusal to dismiss juror for cause. This Court recently held that the standard of review of denial of juror challenges is that for review of other findings and judgments, i.e., a requirement of abuse of discretion for reversal. Abernathy v. Eline Oil Field Services, Inc. (Mont. 1982), [200 Mont. 205,] 650 P.2d 772, 778, 39 St.Rep. 1688, 1695. There we vacated and remanded a judgment for the defendant where the court erred in failing to dismiss a juror for cause and then proceeded to rehabilitate the juror in examination of the juror.

Here, the court twice refused to dismiss the juror: (1) where there was a relationship or an interest in the action as proscribed in Section 25-7-223(5), MCA (husband sold the particular type of baler); and (2) where there was bias as proscribed under Section 25-7-223(7), MCA (wife did not know if she could be fair but “probably could,” her husband thought the baler was safe, and persons were responsible for themselves on the farm). As in Abernathy, plaintiff was forced to his prejudice to exercise a peremptory challenge. Although the court did not, as in Abernathy, engage in its own rehabilitative examination, the court forced plaintiff’s counsel to needless colloquy with the juror in which she demonstrated her confusion as to how she could be “fair.”

We hold that denial of plaintiff’s challenge for cause of juror Mundt amounted to an abuse of discretion, meriting the grant of a new trial.

II

Excluded evidence of other Vermeer compression roller accidents. Appellant contends that in plaintiff’s attempts to show defendant knew that the compression rollers are an unnecessary hazard, the court erred in excluding as inadmissible evidence of other accidents of which defendant had notice. Appellant further claims that the accidents were relevant to show foreseeability of baler operator conduct, failure to guard or to adequately warn, and greater susceptibility of compression roller balers to feed-intake accidents. Therefore, the excluded evidence was relevant to the issues of whether the compression roller design rendered the product defective and unreasonably dangerous and whether Vermeer had notice of the design defect. Appellant claims all seventy-two accidents were similar in that they involved injuries and deaths to operators in the compression rollers, and this evidence was highly probative on the issue of defectiveness.

Respondent counters that the court did not abuse its discretion in excluding evidence of other feed-intake accidents where the product and circumstances were not substantially the same and plaintiff did not meet his burden of proof to demonstrate the similarity to the case at bar. Kuiper v. Goodyear Tire & Rubber Co. (Mont. 1983), [207 Mont. 37,] 673 P.2d 1208, 1219, 40 St.Rep. 1861, 1872-1873. Respondent claims that the court admitted the introduction of thirty accidents “where there has been an intentional act on the part of the operator for getting into those compression rollers while the PTO was operating.” Respondent contends plaintiff failed to meet the requirement of showing that the inadmissible accidents met this reasonable limitation.

We find the limitation was error and denied plaintiff the opportunity to present relevant evidence on the notice defendant had as to accidents specifically in the feed-intake area, i.e., the location of the compression rollers.

Accidents need not be identical to be admissible. “. . . Absolute identity of circumstances is not necessary.” Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613 P.2d 982, 986. We have said that a trial court should make an effort “to allow the admission of evidence of only those accidents where both the product and the circumstances surrounding the accident were similar to the case at bar.” Kuiper, supra. Plaintiff sought to introduce only evidence involving this product designed by Vermeer and circumstances involving injuries or death in the compression rollers of this product. We note that the plaintiff acquired knowledge of the accidents from defendant’s answers to interrogatories. This list prepared by Vermeer indicated that Vermeer had notice of injuries involving operator entanglement in the compression rollers. This evidence was relevant and should have been admitted. Furthermore, the list indicated the magnitude of the alleged defect and foreseeability of operator conduct.

Ill

Eliciting expert testimony from a witness not listed as an expert. Vermeer argues that the failure to list McConeghy as an expert did not prejudice plaintiff when plaintiff qualified the witness both in deposition and trial questioning.

We disagree. It is widely understood that not all testimony elicited in depositions is admissible in trial. Satisfied by his probing in deposition that the witness had no expertise in design of the balers and by the interrogatories that defendant did not intend to introduce McConeghy as an expert witness, plaintiff confined his cross-examination to peripheral issues such as warning decals, Tacke, operators’ manuals, and the guarding hy longer tines on the Massey version of Vermeer 605C. In cross-examination testimony, McConeghy testified as to safety procedures at Massey in subjective evaluations of the machine, in putting out a safety manual, and in designing decals to comply with industry standards. In fact, he testified that Massey substantially relied on Vermeer’s expertise in the large round baler when it entered the contract and that he was not an expert on the internal mechanization of the Vermeer machine.

On redirect examination, defense counsel asked, over objection, McConeghy’s opinion as to whether the machine was defective or unreasonably unsafe. Not only was he not listed as an expert, but there was no adequate foundation in trial questioning to qualify him to give this opinion. We find the court abused its discretion in admitting McConeghy’s opinion as expert testimony where he was not listed as an expert in interrogatories and not qualified by trial testimony to give expert testimony.

The court allowed McConeghy to testify as to his opinion on the cause of the accident.

“Opinion evidence concerning the cause of an accident is admissible only if the subject matter is beyond the ordinary understanding of the jury .... The cause of the accident must be sufficiently complex to require explanation.” [Citations omitted.] Ployhar v. Board of Trustees of Missoula (Mont. 1980), 609 P.2d 1226, 1228, 37 St.Rep. 744, 746.

McConeghy, not qualified as an expert trained in human factors or safety, testified to an opinion as to the cause of an accident which was within the ordinary understanding of the jury. This opinion invaded the province of the jury to determine if plaintiff’s acts of “omission,” not turning off the PTO, and “commission,” reaching in and kicking the plug, were the proximate cause of the accident.

IV

Court’s instruction No. 13. Appellant contends that this instruction, given over objection, did not contain the material contentions of plaintiff raised in pleadings and supported by evidence that the compression rollers were an unnecessary hazard and that the machine had no emergency shut-off device to minimize injuries. The central contention at trial was that the rollers were an unnecessary hazard that impaired the efficiency of the machine by causing frequent plugging, thus encouraging operators to approach the area of the hazard to clear the plugs while the power was engaged.

Appellant also presented evidence that the open-throat, noncompression balers plugged less frequently, that Vermeer sold open-throat balers for eight years before trial (and had sold more of these than the compression roller variety) and that Vermeer had no notice of a single accident to an operator in the feed area of 35,000 open-throat Vermeer balers. Vermeer’s president under oath stated that elimination of the compression rollers eliminated one place where humans could be injured. In Vermeer’s patent on its open-throat baler, Vermeer stated that the starter roller provided an inherent safety feature in eliminating the material compression roller. Plaintiffs expert testified that based upon the technology in 1975, the baler could and should have been manufactured without compression rollers.

Appellant contends that he was entitled to have all of his material contentions as to defectiveness and unreasonable danger submitted to and determined by the jury and that it was reversible error for the court to refuse to instruct on the material issues of unnecessary hazard and enhancement of injuries by lack of an emergency stop device. When the court undertakes to offer its own instruction on the issues raised by plaintiff, its statement must be complete. See Rand v. Butte Electric Ry. Co. (1910), 40 Mont. 398, 107 P. 87. Incompleteness alone, however, is not sufficient for reversal if the failure to instruct was rendered harmless by an otherwise adequate charge to the jury. Rand, supra.

Respondent claims that the instructions, weighed as a whole and read together in context, fully define the issues and, therefore, no prejudicial, reversible error exists. Gibson v. Western Fire Insurance Co. (Mont. 1984), [210 Mont. 267,] 682 P.2d 725, 41 St.Rep. 1048. Respondent refers to seven other instructions which allegedly cover the issues: (1) No. 12 — strict liability in tort; (2) No. 14 — defective design; (3) No. 16 — reasonably foreseeable risks in environment; (4) No. 17 — “reasonably safe”; (5) No. 18 — utility; (6) No. 21A — manufacturer not an insurer; (7) No. 21B — “state of the art.”

We agree with appellant that the other instructions did not allow the jury to consider his central contentions — that the compression rollers were an unnecessary hazard and that defendant enhanced injuries with failure to provide an emergency stop device. The court’s instruction told the jury that unless the plaintiff proved that the compression rollers were not covered by a guard or protective device or the warnings were inadequate thereby causing the injury that he could not recover on the design defect. This instruction amounted to a directed verdict on plaintiff’s central theory, that the compression rollers constituted an unnecessary hazard which rendered the machine defective and unreasonably dangerous. When plaintiff objected and raised the issue of the unnecessary hazard, the court rejected his contention. It is reversible error to refuse to instruct on an important part of a party’s theory of the case. Northwestern Union Trust Co. v. Worm (Mont. 1983), [204 Mont. 184,] 663 P.2d 325, 327, 40 St.Rep. 758, 761.

Where there was no question that plaintiff’s case rested upon the issue of design defect in that he alleged the compression rollers were hazardous and unnecessary in the first place, the court erred in refusing to so instruct. While this may have appeared to the court as simplification of the issues, it did deprive the plaintiff of two of his contentions and possible jury argument on the instruction. A party has a right to have jury instructions which are adaptable to his theory of the case. Northwestern Union Trust Co. v. Worm, supra; Williams v. Montana National Bank of Bozeman (1975), 167 Mont. 24, 31, 534 P.2d 1247, 1251; Wollan v. Lord (1963), 142 Mont. 498, 504, 385 P.2d 102, 106.

V

Court’s instruction No. 20 on duty to warn. Instruction No. 20 concluded that a manufacturer has no duty to warn a person who claims to be entitled to a warning if the person actually knows of the danger. “A person is not entitled to be warned about something he already knows.” Appellant contends that this instruction conflicted with the testimony of both plaintiff’s expert and Vermeer’s corporate representative, Ivan Brand, that the purpose of a warning was to remind someone of a known hazard. Brand admitted that the decal did not comply with industry standards and that a decal distributed two years after the injury did comply and could help prevent serious injury. Tacke testified that he knew generally that machines were dángerous but did not know that he could become entangled in the rollers. The new decal warned specifically of the compression roller danger and showed a person being caught in the rollers.

Respondent claims that warnings are required only if the danger is not open and obvious, and only if the plaintiff was unaware of the danger. Respondent misconstrues Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711, in drawing an inference that there is no duty to warn of an obvious danger, or drawing the inference further of no duty to warn of what plaintiff already knew.

This Court in Brown, however, rejected the patent/latent distinction as a bar to recovery, finding it a rule to encourage misdesign. “Rather, the obvious character of a defect or a danger is but a factor to be considered in determining whether the plaintiff in fact assumed the risk.” Brown, 576 P.2d at 717. This Court also followed the rule on duty to warn of dangers in potentially harmful but otherwise “nondefective” products: if the product is unreasonably dangerous and a warning should be given but is not given, then the product is automatically “defective.” Brown, 576 P.2d at 718-719, citing Jacobsen v. Colorado Fuel & Iron Corporation (9th Cir. 1969), 409 F.2d 1263, 1271. The court erred under the facts of this case in instructing the jury that there is no duty to warn of a known danger.

Vacated and remanded for a new trial.

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


source: Caselaw Access Project

author: MR. JUSTICE MORRISON

license: Public Domain

text:
    RANDY SIMONSON and Dave Rasmussen, Plaintiffs and Respondents, v. KERRY ELDON WHITE, et al., Defendants and Appellants.
    No. 85-51.
    Submitted Oct. 8, 1985.
    Decided Jan. 23, 1986.
    713 P.2d 983.

      Goetz, Madden & Dunn, William J. Madden, Jr., argued, Bozeman, for plaintiffs and respondents.
    Keefer, Roybal, Hanson, Stacey & Jarussi, Calvin J. Stacey, argued, Billings, for defendants and appellants.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Kerry Eldon White was the driver of one of two cars involved in a fatal accident on September 7, 1980. White was sued by his passengers, Randy Simonson and Dave Rasmussen, as was the driver of the other automobile, Ike V. Phillips. White also filed a cross-claim against Phillips. The various lawsuits were consolidated, but on plaintiff-passengers’ request, trial on the liability issues was bifurcated from that on damages. Following trial by jury, White’s negligence was found to be the proximate cause of 40% of his passengers’ injuries. Phillips’ negligence was responsible for the other 60%. The conduct of both White and Phillips was also found to be willful or wanton. Pursuant to instructions given the jury, White’s cross-claim against Phillips was denied because White was found to be guilty of willful or wanton conduct. White appeals the judgment entered by the Eighteenth Judicial District Court on his cross-claim against Phillips. We vacate the judgment and remand for a new trial.

The accident occurred at approximately 2:30 a.m. on the Canyon Ferry Road eight miles east of Helena. Ike Phillips was driving east to his family’s home on Canyon Ferry Lake. He had been drinking and was driving at a high rate of speed. His vehicle failed to negotiate a curve, somersaulted and landed upside-down in the borrow pit on the south side of the road. The vehicle landed headed in the westwardly direction.

Very shortly thereafter the White vehicle, also proceeding east on Canyon Ferry Road, came upon the scene. As White topped the hill immediately prior to the curve, he saw what appeared to be headlights in his driving lane. White testified that to avoid a collision, he drove his car into the ditch on the right (south) side of the road. On entering the ditch, White saw Phillips’ car and tried to regain the road, but crashed into the Phillips’ vehicle. Phillips was killed. It is unknown which collision caused his death. All occupants of the White vehicle suffered injury.

In the pre-trial order, the passengers, Rasmussen and Simonson, claimed that defendant Phillips’ negligence was the primary proximate cause of their injuries and that defendant White was negligent, if at all, to a slight degree. Cross-claimant White alleged that Phillips was “negligent and/or negligent as a matter of law;” that as a result of such negligence “a hazard or sudden emergency was created;” that White “was not negligent in responding to the hazard or sudden emergency;” and that if White were negligent in his response, his negligence was less than the negligence of Phillips which created the hazard or sudden emergency. Further, White alleged that Phillips’ conduct was willful or wanton and that therefore, the doctrine of comparative negligence should not be applied to reduce White’s claim.

Rather than joining in the pre-trial order, Phillips stated his contentions in a separate trial brief. However, that brief was incorporated into the pre-trial order by the following interlineation — “Phillips’ contentions: Please refer to Phillips’ trial brief.” In his brief, Phillips maintained that he was not negligent, and that if he had been negligent, his negligence was not a proximate cause of the claimants’ injuries. Phillips further alleged that White was negligent; that White’s negligence was the sole proximate cause of White’s, Rasmussen’s and Simonson’s injuries; and that White’s negligence constituted a superseding and intervening cause cutting off Phillips’ liability, if any. Finally, Phillips’ brief listed two allegations in support of his claim against White:

1. “White’s driving abilities (including but not limited to perception and reaction capabilities) were substantially impaired by his use of alcohol and drugs; and

2. “White drove his vehicle in a reckless and careless manner (speed).”

The case was tried before a jury. At the close of the presentation of evidence, all parties submitted proposed instructions. Over Phillips’ objections, the court agreed to give White’s proposed comparative negligence instruction and an instruction that the comparative negligence doctrine does not apply if defendant’s conduct is willful or wanton.

A special verdict form was prepared by White asking the jury to determine whether the conduct of Phillips was willful or wanton. Phillips again objected because it failed to ask the jury to determine whether Kerry White also acted willfully or wantonly. Phillips’ objection was overruled and White’s special verdict forms were adopted by the court.

After several hours of deliberation, the jury returned with questions for the court, one of which was:

“Cases A and B [the claims of Simonson and Rasmussen against White and Phillips] Question 3 asks if Ike Phillips was willful or wanton, why isn’t the question asked if Kerry White was willful or wanton. He is also a defendant.”

In response, the court amended the special verdict forms to include a determination by the jury of whether White acted willfully or wantonly. The instruction on when the comparative negligence doctrine does not apply was unaltered. At the request of Phillips and plaintiffs, the court amended the pleadings and the pre-trial order to include a specific willful or wanton conduct charge against White.

White objected to these changes on several grounds, the most important being that the court lacks judicial power to amend instructions and verdict forms after the case has been tried, argued, submitted and deliberated upon if such amendments substantially and materially change the theory of the case. White also requested the court to give an instruction on gross negligence and an instruction permitting the comparison of willful or wanton conduct with like conduct under the comparative negligence doctrine. Both requests were denied.

Thereafter, the case was returned to the jury for further deliberations. There were three special verdict forms before the jury. Form A involved the claim of passenger Simonson against White and the successors in interest to Phillips. Form B was for passenger Rasmussen’s claim against the same individuals. Form C was for White’s claim against the successors in interest to Phillips.

The jury found both Simonson and Rasmussen to be negligent, but held their negligence not to be a proximate cause of their injuries; found White’s and Phillips’ conduct to be negligent and willful or wanton; and divided the responsibility for Rasmussen’s and Simon-son’s injuries between White and Phillips 40% and 60% respectively. Then, on White’s cross-claim against Phillips, the jury found both individuals’ conduct to be negligent and willful or wanton and held both individuals’ conduct to be a proximate cause of White’s injuries. However, pursuant to instructions on Form C, since the jury found White’s and/or Phillips’ conduct to be willful or wanton, the jury did not assign proportions of negligence to either of them. Therefore, White’s willful or wanton conduct became an absolute defense to Phillips’ willful or wanton conduct, barring any finding of liability on the part of Phillips for White’s injuries.

Further facts will be developed as necessary for resolution of this case.

White appeals, raising the following issues:

1. Whether the District Court erred in amending the pleadings and special verdict forms to permit a finding of wanton or willful conduct on the part of Kerry White?

2. Whether the District Court erred in refusing to permit comparison of appellant’s wanton and willful conduct with like conduct on the part of Phillips?

3. Whether the District Court erred in requiring appellant White to transcribe the entire trial court record, when only that part from settlement of jury instructions through taking of the verdict is necessary to determine the issues raised by this appeal?

Phillips also submits several issues on cross-appeal for this Court’s consideration should we remand for a new trial.

1. Did the District Court err in granting White’s motion in limine preventing Phillips from introducing any testimony relating to White’s use of drugs on the day of the accident?

2. Did the District Court err in allowing Officer James Curtin of the Montana Highway Patrol to testify as an expert witness and express his opinion as to the estimated speeds of the vehicles driven by White and Phillips at the time of the accident?

3. Did the District Court err in allowing White to introduce testimony and exhibits relating to an experiment which he performed in an attempt to recreate the accident in question in light of the fact certain dissimilarities existed between the experiment and what actually occurred on the night of the accident?

4. Did the District Court err in submitting a “sudden emergency” instruction to the jury at the request of White?

5. Did the District Court err when it dismissed defendants “IKE V. PHILLIPS and the ESTATE OF IKE V. PHILLIPS” from the lawsuit on the first day of trial and substituted in their place as defendants “VIC PHILLIPS and FRANCIS PHILLIPS AS SUCCESSORS IN INTEREST TO IKE V. PHILLIPS?”

As the final issue raised by cross-appellant Phillips is jurisdictional in nature, we will address it first. Phillips contends the trial judge erred when, on the first day of trial, he substituted “Vic Phillips and Francis Phillips as successors in interest to Ike V. Phillips” for defendants “Ike V. Phillips and the Estate of Ike V. Phillips.”

We find no error in this substitution. Section 27-1-501, MCA, provides that a cause of action against a deceased may be brought “in the name of his representatives or successors in interest.” See Muir v. Kessinger (D.C. Mont. 1940), 35 F.Supp. 116, 117. Since Ike Phillips was unmarried and childless at the time of his death, his parents are his successors in interest. Section 72-2-203(2), MCA.

This action was initially brought against Ike Phillips and his estate. Section 72-3-104(1), MCA, requires the appointment of a personal representative prior to the commencement of a claim against the estate of a decedent. Since there was no estate, no personal representative was appointed. Therefore, it became necessary to substitute the real parties in interest, Phillips’ successors in interest, for his estate. Such a substitution is permitted under Rule 17(a), M.R.Civ.P., without adversely affecting any applicable statute of limitations.

Appellant’s Issues

I

Initially, White contends Phillips failed to allege willful or wanton conduct on the part of White. Therefore, the trial judge erred when he amended the pleadings and special verdict forms to include such an allegation. We agree the jury was improperly instructed, but for reasons different than those offered by White.

Phillips alleged in his trial brief that White acted in a reckless manner. Reckless conduct has been found synonymous with willful or wanton conduct in numerous Montana cases. See for example, Mallory v. Cloud (1975), 167 Mont. 115, 535 P.2d 1270. In fact, Webster’s International Dictionary defines “wanton” as “reckless, heedless or malicious.” Cashin v. Northern Pac. Ry. Co. (1934), 96 Mont. 92, 110, 28 P.2d 862, 869. See also, W. Prosser, The Law of Torts Section 34 (4th ed. 1971). Thus, by alleging reckless conduct, Phillips alleged that White’s conduct was willful or wanton. To hold otherwise would be contrary to Montana’s liberal pleadings law. Morse v. Espeland (Mont. 1985), [215 Mont.148,] 696 P.2d 428, 430, 42 St.Rep. 251, 252-253 and Rule 8, M.R.Civ.P.

Since Phillips’ trial brief was incorporated by reference into the pre-trial order, his brief, and his allegation that White’s conduct was reckless, became part of the pleadings. Therefore, it was proper to instruct the jury concerning Phillips’ allegation that White’s conduct was willful or wanton. However, those instructions came too late.

The original instructions did not include any reference to Phillips’ affirmative defense that White’s conduct was willful or wanton. Therefore, White was denied the opportunity to argue against that defense prior to the case going to the jury. The right to argue one’s case as well as to argue in response to defenses raised by the other parties is essential to the litigant’s right to have his case fairly presented to the jury. It includes the opportunity “to argue every material issue in a case upon which evidence has been introduced . . .” King v. Kaplan (1949), 94 Cal.App.2d 697, 211 P.2d 578, 580.

“It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact .... for it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions.

<<* * *

“In a . . . trial, which is in the end basically a fact-finding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.” Herring v. New York (1975), 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593, 600.

Therefore, since White was denied the opportunity to argue that his conduct was not willful or wanton, it was error for the trial judge to later amend the pleadings and special verdict forms to allow the jury to consider that issue.

This error alone resulted in substantial injustice to White. Therefore, the verdict should be set aside and a new trial granted. Section 25-11-102(7), MCA.

II

Appellant next objects to the trial judge’s refusal to permit apportionment of fault between White and Phillips if the conduct of either or both is willful or wanton. The trial judge’s decision is premised on this Court’s decision in Derenberger v. Lutey (Mont. 1983), [207 Mont. 1,] 674 P.2d 485, 40 St.Rep. 902. However, Derenberger holds only that willful or wanton conduct may not be compared to negligent conduct under Montana’s comparative negligence statute, Section 27-1-702, MCA.

“The above statutory construction indicates to us that mere negligence and willful and wanton misconduct are different in kind, rather than degree. Consequently, we find that the legislature did not intend that they be compared under Montana’s comparative negligence statute.” Derenberger, 674 P.2d at 487-488, 40 St.Rep. at 906.

No decision was rendered in Derenberger with respect to whether willful or wanton conduct may be compared with like conduct.

Since we have held willful or wanton conduct to be different in kind from negligent conduct, the comparative negligence statute can not apply to willful or wanton conduct. However, the comparative negligence doctrine was adopted to ameliorate the harshness of the “all or nothing” result under the old contributory negligence approach. It makes no sense to retain this harsh result where the conduct being compared is other than negligent. Derenberger, supra. The better rule is to allow comparison of the parties’ conduct so long as the conduct is of the same “kind”. Therefore, we hold that like conduct of parties, regardless its label, may be compared for purposes of ascertaining damages. However, consistent with the comparative negligence statute, a person may recover damages for his injuries only so long as his misconduct is not greater than the conduct of the person against whom recovery is sought. Section 27-1-702, MCA.

Finally, Section 27-1-701, MCA, states:

“Liability for negligence as well as willful acts. Everyone is responsible not only for the results of his willful acts but also for any injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.”

Our holding today is not inconsistent with this statute as it has been previously interpreted “to limit a comparison of plaintiffs acts only when defendant has committed acts of a similar kind.” Derenberger, 674 P.2d at 487, 40 St.Rep. at 905.

Ill

We need not determine whether it was error for the trial judge to require White to provide this Court with an entire transcript of the proceedings below as White’s appeal is successful. The cost of preparing a transcript for appeal purposes is one of the costs on appeal awarded to the successful party under Rule 33(c), M.R.App.Civ.P. and Section 25-10-104(2), MCA.

Cross-appellant’s Issues

Cross-appellant Phillips presents several issues for this Court’s consideration. Since we are remanding for a new trial, we will address only the legal issues raised, not the application of the facts to the law in the previous trial.

I.

White admitted smoking marijuana, using cocaine and ingesting 1 or 2 capsules of Ephredine Sulphate on the day of the accident. Simonson, Rasmussen and White filed a joint motion in limine requesting that all evidence regarding the use of drugs prior to the accident be excluded from trial. Following a hearing and filing of briefs in the matter, the motion was granted and the evidence excluded unless a foundation could be established showing:

“a. At the time of the collision, the driver was under the influence of drugs, and the passengers knew or should have known that he was under the influence; and
“b. The driver’s negligence was the proximate or controlling cause of the injuries to plaintiffs.”

Order of the District Court, dated April 26, 1984.

Cross-appellant contends that the first part of the test is nearly impossible to prove and that the second part is a determination which should be left for the jury. We disagree.

Evidence of the use of drugs is, by its very nature, prejudicial. We previously approved a similar foundational requirement as a condition to admission of prejudicial evidence in Nelson v. Hartman (1982), 199 Mont. 295, 299, 648 P.2d 1176, 1178. There, the trial judge conditionally excluded the evidence until a foundation linking the defendant’s driving record with his competency to drive at the time of the accident was laid. Likewise, we approve this trial judge’s demand for a link between the prejudicial evidence and the accident. If White’s negligence was not a cause of the accident, it should not be admitted. Again, there is no error.

Even if the test is met, the trial court must still weigh the probative value of the evidence against its prejudicial effect. Rules 401 and 403, M.R.Evid. With respect to the probative value of the evidence, cross-appellant’s own expert witness, Dr. Kenneth Mueller, testified that he could not state with a reasonable degree of medical certainty that White’s use of the drugs had any adverse effect on his driving ability at the time of the accident. Under Aasheim v. Humberger (Mont. 1985), [215 Mont. 127,] 695 P.2d 824, 42 St.Rep. 235, the proper test to be used at the next trial is whether White’s drug usage “more likely than not” affected his ability to drive. Aasheim, 695 P.2d at 827-828, 42 St.Rep. at 239, 240. If this test cannot be met by Phillips, there will be no abuse of discretion should the trial judge hold that the probative value of the evidence is not outweighed by its prejudicial effect.

II.

The investigating highway patrol officer, James Curtin, testified that in his opinion Phillips was traveling too fast to safely negotiate the corner and White was traveling within the speed limit immediately prior to the accident. Cross-appellant objects, contending that Officer Curtin was not qualified to offer such an opinion because he did not conduct drag factor or coefficient of friction tests. The trial judge is granted wide discretion in determining whether to admit opinion testimony of investigating police officers regarding the speeds of vehicles. Graham v. Rolandson (1967), 150 Mont. 270, 285, 435 P.2d 263, 271. Given Officer Curtin’s qualifications and experience, as well as the general nature of his testimony, we find no abuse of discretion.

III.

Next, cross-appellant objects to the admission into evidence of pictures taken during a re-creation of the accident. White assisted with the re-creation, then explained to the jury the dissimilarities between the re-creation and the actual accident. If the conditions of the re-creation are “substantially similar” to those at the time of the accident and the re-creation has been properly foundationed, there is no abuse of discretion by the trial judge in admitting the evidence. Johnson v. Y.M.C.A. of Great Falls (1982), 201 Mont. 36, 41-42, 651 P.2d 1245, 1248-1249; Barmeyer v. Montana Power Company (Mont. 1983), [202 Mont. 185,] 657 P.2d 594, 599, 40 St.Rep. 23, 28.

IV.

Finally, cross-appellant objects to the use of a sudden emergency instruction in this case. The instruction given is that used repeatedly by courts in Montana:

“You are instructed that when a person is faced with a sudden emergency which is not created by his own negligence, his conduct is to be tested by what an ordinarily prudent person would have done under the same circumstances and he is not chargeable with negligence for failing to adopt the most judicious course as disclosed by subsequent events.”

Jury Instruction #16.

There is no reason for this instruction to ever be given in an automobile accident case. It adds nothing to the established law applicable in any negligence case, that due care under the circumstances must be exercised. “The circumstances” includes the pressure and split-second decision-making which accompanies the crisis prior to some automobile accidents. Further, a driver is never held responsible for non-negligent actions which prove, with hindsight, to have been incorrect. The instruction adds nothing to the law of negligence and serves only to leave an impression in the minds of the jurors that a driver is somehow excused from the ordinary standard of care because an emergency existed. This is not the law. See W. P. Keeton, The Law of Torts Section 33 (5th ed. 1984).

In Knapp v. Stanford (Miss. 1981), 392 So.2d 196, the Mississippi Supreme Court abolished prospectively the sudden emergency instruction in all negligence cases, stating:

“The hazard of relying on the doctrine of ‘sudden emergency’ is the tendency to elevate its principles above what is required to be proven in a negligence action. Even the wording of a well-drawn instruction intimates that ordinary rules or negligence do not apply to the circumstances constituting the claimed ‘sudden emergency.’ Also it tends to confuse the principle of comparative negligence that is well ingrained in the jurisprudence of this State.” Knapp, 392 So.2d at 198.

Similarly, the use of the sudden emergency instruction in automobile accident cases is hereafter banned.

The verdict is vacated and this cause is remanded for a new trial, consistent with the law as set forth herein.

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


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY, MR. JUSTICE HUNT and MR. JUSTICE MORRISON,

text:
    In the Matter of the SUSPENSION OF the DRIVER’S LICENSE OF WAYNE BLAKE.
    No. 85-79.
    Submitted on Briefs Oct. 3, 1985.
    Decided January 23, 1986.
    Rehearing Denied Feb. 13, 1986.
    712 P.2d 1338.

      Mike Greely, Atty. Gen., Kimberly Kradolfer, Asst. Atty. Gen., Helena, W.G. Gilbert, III, Co. Atty., Dillon, for appellant.
    Max A. Hansen, Dillon, for respondent.
    Vincent J. Kozakiewicz, Dillon, for amicus curiae.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Petitioner, Wayne Lester Blake’s driver’s license was suspended for 90 days pursuant to Section 61-8-402(5), MCA, for refusal to take a breathalyzer test. Blake appealed the suspension of his license to the Fifth Judicial District Court, pursuant to Section 61-8-403, MCA. Following an evidentiary hearing, the trial judge stayed the suspension, pending a final appeal of his decision. The State filed a motion for rehearing. The motion was heard January 11, 1985. That same day, the trial judge issued an order affirming his previous order and clarifying the underlying reasons for the stay. The State appeals the order denying its petition for rehearing.

At the outset, there appears to be a disagreement between the parties as to the evidence this Court may consider on appeal. The notice of appeal states in pertinent part:

“The respondent State of Montana . . . hereby gives notice ... of its intention to appeal this Court’s order of January 11, 1985, denying the State’s motion for reconsideration of the Court’s underlying order of November 14, 1984 . . . .”

To determine whether the trial court properly denied the State’s petition for rehearing, we must review the record relied on by the trial judge in reaching his decision to stay the suspension of petitioner’s driver’s license. Therefore, we will review the entire record of this case. See Rule 2, M.R.App.Civ.P.

Petitioner attended a club meeting on the evening of October 10, 1984. Following the business meeting, most of the members played cards. Though he did not play, petitioner stayed to watch the card games and to socialize. Petitioner and Bruce Parker were the last to leave the meeting. They drained several water pipes and locked the building prior to leaving in their respective cars between 1:30 a.m. and 2:00 a.m. Petitioner testified that he drank four to five beers over the course of the evening.

Petitioner’s route home from the meeting included traveling north on Montana Street through downtown Dillon, Montana. Officer Scott Zeitner was traveling south on Montana Street when he observed petitioner driving erratically. Zeitner testified that petitioner swerved in and out of his own lane numerous times. Petitioner and Parker, who had traveled behind him from the location of the club meeting to the point where Zeitner stopped petitioner, testified that petitioner’s driving had not been erratic and that he had only swerved once. Petitioner testified that he was forced to swerve into the other lane in order to avoid a pedestrian. Neither Zeitner nor Parker saw a pedestrian.

Zeitner administered several field sobriety tests to petitioner, none of which were performed successfully. Petitioner was arrested and taken to the police station where he refused to submit to a breathalyzer test. His driver’s license was subsequently suspended.

Petitioner appealed the suspension of his driver’s license to District Court, alleging lack of reasonable grounds for the police officer to believe petitioner had been driving a vehicle while under the influence of alcohol. Section 61-8-403, MCA. However, the trial judge never reached that issue, holding instead that (1) the initial stop was illegal for lack of reasonable grounds for the police officer to believe petitioner was operating a motor vehicle while under the influence of alcohol prior to the time petitioner’s vehicle was stopped; and (2) since the initial stop was illegal, petitioner’s drivers’ license should not have been suspended.

The State filed a motion for rehearing, contending that the police officer needed only a “particularized suspicion of some kind of wrong doing” to stop petitioner’s vehicle, not reasonable grounds. Following a hearing, the judge issued an order January 11, 1985, denying the motion. In that order, the trial judge held that a review of the evidence confirmed his initial, controlling finding of fact, that the police officer was not justified in making the investigatory stop. However, instead of relying on the “reasonable grounds” test, the judge stated:

“The evidence completely failed to meet the test of ‘particularized suspicion,’ as that term is defined in State v. Gopher [631 P.2d 293,] 38 St.Rep. 178 and State v. Stemple [198 Mont. 409,] [646 P.2d 539,] 39 St.Rep. 1085; all the officer had was a “hunch” or “suspicion”, and as the Supreme Court said in State v. Lahr 172 Mont. 32, [560 P.2d 527,] “mere suspicion on the part of the officer is not enough.”

In its appeal of that order, the State raises three issues:

1. Whether Officer Zeitner properly stopped petitioner’s vehicle?

2. Whether the District Court erred in considering hardship factors?

3. Whether petitioner met his burden of proof in challenging his license suspension?

The proper test for determining whether an officer was justified in making an investigatory stop is that relied on by the trial court in its January 11, 1985, order, “a particularized suspicion of some kind of wrongdoing.” State v. Gopher (Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078. In order to prove the existence of a “particularized suspicion”, the State must show: “(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing . . . .” Gopher, 631 P.2d at 296, 38 St.Rep. at 1081.

Section 61-8-403, MCA, sets forth the petitioner’s rights to appeal. It reads:

“The department shall immediately notify any person whose license or privilege to drive has been suspended or revoked, as herein-before authorized, in writing and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided.”

Under the statute, the District Judge should have determined if the police officer had reasonable grounds to believe the petitioner had been driving while under the influence of alcohol, whether the petitioner was placed under arrest, and whether petitioner refused to submit to the blood alcohol test. Those were the only issues provided under the statute, and he did not address them. Instead he focused on the question of the initial stop and the claimed lack of reasonable grounds for that stop.

In Petition of Burnham (Mont. 1985), [217 Mont. 513,] 705 P.2d 603, 42 St.Rep. 1342, this Court pointed out that the implied consent law is a civil administrative proceeding separate and distinct from the criminal action on the charge of driving while intoxicated. Each proceeds independently of the other. There is no connection between the criminal statute prohibiting the operation of the motor vehicle while under the influence of alcohol and the statutes requiring consent to a chemical test to determine blood alcohol content. The court should have ruled upon the sufficiency of the evidence to establish that the police officer had reasonable grounds to believe petitioner was driving under the influence of alcohol, that petitioner was placed under arrest, and that he refused to submit to the test. Substantial evidence was submitted on each of these issues.

In addition, we disagree with the conclusion of the District Court that the initial stop was illegal for lack of reasonable grounds for the police officer to believe petitioner was operating a vehicle under the influence of alcohol prior to the actual stop of petitioner’s vehicle. There is no dispute that petitioner was driving in the vicinity of several bars around 2:00 a.m., which is near the closing time for bars in Montana. In addition, petitioner’s own testimony established that he swerved into the wrong traffic lane. In itself, the driving of a vehicle into the wrong traffic lane may be sufficient to constitute a traffic violation under Section 61-8-321, MCA. In addition, such uncontradicted evidence is sufficient to constitute a particularized suspicion that the petitioner may have been driving while under the influence of alcohol. We conclude that the conduct of Officer Zeitner met the particularized suspicion test of State v. Gopher.

Issue two is whether the District Court erred in considering hardship factors. As noted above the court having disposed of the case on grounds other than provided by statute, we remand the case for further hearings on whether the petitioner should be granted a restricted driving permit. As to issue three, upon remand this matter can be further considered by the District Court.

The order of the District Court is vacated and the case remanded to the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent.

I.

Proceedings to suspend the driver’s license of one who refuses to submit to a chemical test designated by the arresting officer (Section 61-8-402, MCA) and the right of appeal granted such driver (Section 61-8-403, MCA) are civil in nature. The proceedings therefore are governed by the Rules of Civil Procedure. Under Rule 52(a), M.R.Civ.P. “[findings of fact shall not be set aside unless clearly erroneous.” The majority opinion ignores this rule of appellate review, ignores the findings of fact made by the district judge who heard the witnesses, and makes no excuse for its ignoratio elenchi.

Following are the pertinent findings of fact made by the District Court:

“1. The petitioner is the President of the Dillon Jaycees. On October 10, 1984, he together with a number of his Jaycee associates were engaged in community service work, at the Club’s facilities at the Beaverhead County Fair Grounds. During the course of the evening, a quantity of beer was consumed — petitioner admitted to having “four or five beers.” However much was consumed did not affect the performance of their duties, and in fact petitioner secured the Fair Grounds facility, which involved among other acts, the intricate manipulation of a complicated bolt lock on a gate. Each of the members of the work party proceeded to their homes in separate vehicles. Petitioner departed the Fair Grounds at approximately 2 a.m. on October 11, followed by his companion.
“2. The petitioner’s route to his home involved stopping at a number of stop signs, including a railroad crossing. He proceeded north on Montana Street, followed by his companion, the latter confirming that all traffic laws were obeyed, and that petitioner was properly operating his vehicle. At a point near the 300 block of North Montana, the petitioner swerved into the south bound lane to avoid hitting a pedestrian. The following colleague noted the “swerve”, which was the only “erratic” maneuver in a dozen blocks.
“3. A Dillon Police officer, traveling south on the Montana Street also took note of the ‘swerve.’ The officer swore that there were multiple weavings in and out of petitioner’s lane, but admitted his view was somewhat obstructed by another car. In any case, the officer turned around and stopped petitioner a couple of blocks further north on Montana.
“5. This court makes no finding as to the evidence of sobriety, which may have been adduced at any time subsequent to the apprehension of petitioner. This court finds that the only issue to be determined in this proceeding is whether or not the officer had ‘reasonable’ grounds to believe that the petitioner was operating a motor vehicle while under the influence, prior to the time he stopped the suspect’s vehicle.” (Emphasis in original.)

The right of a police officer to make a warrantless arrest in Montana is defined by statute. Section 46-6-401(l)(d), MCA, provides that: “A peace officer may arrest a person when ... he believes on reasonable grounds that the person is committing an offense and the existing circumstances require his immediate arrest.” The District Court properly defined the issue in this case under the statute, and determined as a conclusion of law:

“The conflicting evidence is not sufficient to establish by preponderance of the evidence, that the arresting officer had reasonable grounds in initially believing that the Blake vehicle was being operated by one under the influence of alcohol on October 11, 1984.”

The recitation of facts contained in the majority opinion are at considerable variance from the findings of the District Court. It is the duty of this Court, in appellate review, either to accept the findings of fact by the District Court under Rule 52(a), M.R.Civ.P. or to set them aside as clearly erroneous. The majority opinion fails to set forth reasons of any kind why the findings of the District Court, apparently based on the credibility of the witnesses, should not be upheld by the majority. Only recently, this Court stated the rules with respect to findings of fact made by a District Court:

“Rule 52(a), M.R.Civ.P. provides in part: ‘Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ The Supreme Court may not substitute its judgment for that of the trial court. The presiding court is confined to determining if there is substantial credible evidence to support the findings of fact and conclusions of law. We view the evidence in the light most favorable to the prevailing party. (Citation omitted.) In construing Rule 52(a) this Court has stated that on review, the trial court’s judgment is presumed correct, and this Court will draw every legitimate inference to support that presumption.” (Citations omitted.) Interstate Brands Corp. v. Cannon (Mont. 1985), [218 Mont. 380,] 708 P.2d 573, 576, 42 St.Rep. 1670, 1674.

II.

A particularized suspicion of some kind of wrongdoing, which we set out in State v. Gopher (Mont. 1981), 631 P.2d 293, 38 St.Rep. 1078, must still meet the “reasonable grounds” test for a warrantless arrest by a police officer under Section 46-6-401(l)(d), MCA. The Gopher test has two elements which the state must prove:

“Primarily applying the rules of Cortez, the State submits that sufficient particularized suspicion existed to justify the stop of defendant’s car. The State’s burden has two elements: (1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity . . .” 631 P.2d at 296, 38 St.Rep. at 1081.

In Gopher, the police officer had advance information that a crime had been committed and he was observing the actions of a slow moving automobile in a residential area. In the case at bar, the District Court found nothing more than vehicles in the line of traffic, with one of them making one swerve. The District Court determined that a single swerve of a vehicle to avoid hitting a pedestrian did not suffice to provide reasonable ground for a warrantless arrest in this case. Gopher did not suspend Section 46-6-401(l)(d), MCA as to the necessity for reasonable grounds for a warrantless arrest. If it did we don’t need a legislature to make laws.

III.

The majority opinion implies that the District Court did not rule on the sufficiency of the evidence to establish the police officer had “reasonable grounds” to believe petitioner was driving under the influence of alcohol. The foregoing recitations from the findings of fact and conclusions of law of the district judge belie that implication.

IV.

More ominous to drivers under the enforcement of traffic laws in Montana, especially with reference to alcoholic driving, is the implication in the majority opinion that a police officer who has placed a driver under arrest may cause the eventual suspension of the driver’s license without regard to whether the arrest itself was lawful. Incredibly, the State has argued in this case that the question of the lawfulness of the arrest is not to be considered on review in this type of case and this Court, by implication, seems to agree. The State’s position is set forth in its reply brief:

“It is the State’s position that Officer Zeitner’s arrest of Blake was lawful and that the initial stop was based on a particularized suspicion of wrongdoing. (See Argument I., infra.) It is also the State’s response to Blake’s argument, however, that the lawfulness of any arrest does not fall within the purview of what a district court may review in determining whether license is properly suspended or revoked pursuant to the implied consent statute.”

Here the State is arguing that Section 61-8-403, MCA, providing for the right of a driver to appeal from the license suspension limits the District Court to “whether the officer had reasonable grounds to believe the person had been driving a motor vehicle upon the highways of the state open to the public while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test.” The State contends that under the statute, the lawfulness of the arrest is not at issue, and if the defendant is in fact under arrest, whether lawfully accomplished or not, and refuses to submit to a chemical test of his sobriety, he loses his right to a driver’s license.

That narrow interpretation of Section 61-8-403, MCA, by the State is an issue that should be addressed by the majority and is not. The implication is left, however, from the facts of this case, that an unlawful arrest may still give rise to suspension of the driver’s license.

I would affirm the District Court.

MR. JUSTICE HUNT and MR. JUSTICE MORRISON,

dissenting:

We concur in the foregoing dissent of MR. JUSTICE SHEEHY.


author: MR. JUSTICE SHEEHY

text:
    In the MATTER of the DENIAL OF LICENSURE OF RUDOLPH E. WHITE.
    No. 85-313.
    Submitted on Briefs Nov. 6, 1985.
    Decided Jan. 23, 1986.
    712 P.2d 1344.

      Geoffrey L. Brazier, Dept, of Commerce, Helena, for appellant.
    Michael P. Sand, Bozeman, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The Board of Nursing appeals from a judgment of the District Court, First Judicial District, Lewis and Clark County which reversed the decision of the Board of Nursing and ordered the Board to license the petitioner. We affirm.

The Board of Nursing raises four issues on appeal. 1) Should Rudolph E. White be licensed as a practical nurse in Montana? 2) Did the District Court disregard uncontroverted credible and material evidence? 3) Did the District Court substitute its opinion for that of the agency as to the weight of the evidence? 4) Did the District Court erroneously construe the applicable statutes? We will treat all these issues together.

Rudolph E. White applied to the Board of Nursing of Montana for a practical nurse license by endorsement pursuant to Section 37-8-417, MCA. He was denied that license. He requested the Board review the denial of his license. The Board considered the denial of his license at its meeting and again denied the license. White requested administrative review of the board’s decision. A hearing was held, witnesses were heard and exhibits were introduced. The hearing examiner concluded that the Board should issue the license. The matter was referred back to the Board of Nursing which held another hearing. The Board reversed the decision of the hearing examiner and denied the license. White petitioned for judicial review. The District Court adopted the Findings of Fact and Conclusions of Law of the hearing examiner and ordered the Board to license White.

The Board appeals.

After White graduated from high school in New York, he served as an army medic for six years. After being honorably discharged from the service, he worked as a laboratory technician in cancer research for eight years. He also attended medical assistant’s school for a year.

White attended Onondaga Community College in Syracuse from the spring semester of 1975 through fall semester 1977 where he earned 57 credits of the required 62 credits toward a registered nurse degree. New York allows a candidate for a registered nurse degree to take the licensed practical nurse examination after completion of three semesters of the registered nurse program if their grades are satisfactory. In 1980, White successfully passed the National Standardized Practical Nursing Examination and was licensed as a practical nurse in New York. White worked as a practical nurse in New York until 1982 when he came to Montana. His New York license is still valid.

White applied for a license by endorsement in Montana under Section 37-8-417, MCA. That Section states:

“The board may issue a license to practice as a licensed practical nurse, without examination, to an applicant who has been licensed or registered as a licensed practical nurse or person entitled to perform like services under a different title under the laws of another state or territory if, in the opinion of the board, the applicant meets the requirements for practical nurses in this state.”

The requirements for practical nurses in this state are set out in Section 37-8-415, MCA.

“An applicant for a license to practice as a licensed practical nurse shall submit to the board written evidence, verified by oath, that the applicant:

“(1) has successfully completed at least an approved 4-year high school course of study or the equivalent as determined by the office of the superintendent of public instruction;
“(2) is a graduate of an approved practical nursing education program that is authorized to prepare persons for licensure as practical nurses; and
“(3) meets other qualification requirements the board prescribes in its rules.”

The Board argues that White cannot be licensed by endorsement in Montana, nor will the Board allow him to take the Montana examination until he graduates from an approved practical nursing education program. They argue he did not graduate since he holds no diploma. They also argue that the school White went to while it is an approved school for registered nurses, is not an approved school for licensed practical nurses. Thus they argue White should enroll in a licensed practical nurse program in Montana and graduate before he can take the Montana exam.

White argues he completed the equivalent of graduation from a school of practical nursing. Under New York law, an applicant may take the examination if he graduates from a practical nursing program or if he competes the equivalent thereof. White qualified under the equivalent preparation section of New York law and passed the standardized, nationalized examination, which is used both in New York and in Montana. His score was sufficient to constitute passing in both New York and Montana. He argues that by refusing him a license in Montana, the Board is attempting to disapprove of the educational standards of New York.

We first look to the standard of review of agency decisions under MAPA. Section 2-4-704, MCA states, “The [district] court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:. . . (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” In this case, the District Court reversed the decision of the agency and found the decision was arbitrary, capricious and abusive of discretion and affected by other error of law. The District Court adopted in their entirety the Findings of Fact and Conclusions of Law of the hearing examiner. The District Court found the Board’s interpretation of Section 37-8-417, MCA is “hypertechnical, defeats the clear intention of the legislature and would deprive the public of the services of a well qualified, probably over-qualified, licensed practical nurse.”

We agree with the District Court that the Board’s interpretation of the statute is hypertechnical. The statute should be interpreted to mean the applicant’s education has been approved and authorized by the state in which he has been licensed. The District Court is also correct that the Board’s interpretation of the statute defeats the intention of the legislature. The intention of the legislature is expressed in Section 37-8-101(2), MCA.

“In order to safeguard life and health, any person practicing or offering to practice practical nursing in this state for compensation or personal gain shall be required to submit evidence that he or she is qualified to practice and shall be licensed as hereinafter provided.” Denying this applicant a license frustrates the legislative intent of safeguarding life and health. Finally, the District Court is correct in holding that denying this applicant a license deprives the public of a well-qualified applicant. It has not been argued and cannot be argued that the applicant’s qualifications are in any way deficient for the purpose of being a licensed practical nurse in Montana.

The effect of the Board’s decision is to deny to qualified applicants the right to practice in Montana. The District Court did not err. We affirm.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK GEORGE KESTNER, JR., Defendant and Appellant.
    No. 85-184.
    Submitted Dec. 4, 1985.
    Decided Jan. 27, 1986.
    713 P.2d 537.

      Sherlock & Nardi, Patrick D. Sherlock, argued, Kalispell, for defendant and appellant.
    Mike Greely, Atty. Gen., Patricia Schaefer, argued, Asst. Atty. Gen., Helena, Ted 0. Lympus, County Atty., Kalispell, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant Frank Kestner, Jr. appeals his November 1, 1984, jury conviction in the District Court of the Eleventh Judicial District on two counts of sexual assault. We reverse and remand for a new trial.

On January 14, 1984, defendant exercised at Second Wind Rec Center in Kalispell, Montana, where he was a member. About 7:00 p.m., defendant went to the pool area to swim laps and soak in the hot tub. Among numerous others in the pool area were S. M. (Count I) and C. B. (Count II), both age 12, and M. N. (Count III) and R. L. (Count IV), both age 15.

After swimming for a while, S.M. and C.B. went to soak in the hot tub. Defendant and several others were already in the tub, which was 6’4” in diameter and could hold up to 12 people. S.M. sat next to defendant, with C.B. next to her. Both S.M. and C.B. testified that defendant was staring at them with “weird” eyes. S.M. felt a hand on her inner thigh, which she believed to be defendant’s, so she jumped out of the hot tub. S.M. having left, defendant and C.B. were now seated next to each other. C.B. testified she then felt something rubbing her inner thigh near the elastic of her swim suit. At first she thought it was bubbles from the water jets, but then realized it was the hand of defendant, so she jumped out, ran over to S.M. and they both jumped in the swimming pool. S.M. and C.B. testified that defendant was the only one close enough to have touched them in such a manner.

Defendant testified the only touching of either of these girls that he recalls was putting his hand momentarily on C.B.’s back to get her attention in order to strike up a conversation. She then jumped from the tub. Defendant got out of the hot tub shortly thereafter and went over by the shallow end of the pool. He saw C.B. and S.M. in the pool, jumped in and from a distance of a few feet told C.B. she was exceptionally beautiful. Defendant had recently been doing sketches and drawings, and testified that he was interested in C.B.’s beauty from an artistic standpoint.

A little while later, as defendant was floating in the hot tub and his legs outstretched, M.N. entered the tub, and not seeing defendant’s legs, she tripped and fell onto him. M.N. testified that in the process of helping her up, defendant touched her buttocks and breasts. Defendant testified that he was not aware he had touched her in those areas, but if he had it was certainly unintentional. M.N. sat next to defendant and felt a hand on her thigh, with fingers rubbing her in the vaginal area. She moved away from the defendant, and then R.L. entered the pool, also tripping over defendant’s legs. R.L. testified that defendant touched her on the breast as she got up, and that upon sitting next to him, she felt defendant’s hand on her inner thigh with his fingers rubbing her vaginal area. R.L. grabbed M.N. and they jumped out of the hot tub. Defendant denied having any contact with R.L., except to help her up when she fell.

M.N. and R.L. jumped into the pool, where a short time later they saw defendant swimming towards them, so they jumped out quickly and went back to the hot tub. In the hot tub, M.N. and R.L. overheard S.M. and C.B. discussing a similar incident, so they all went into the dressing room for further discussion. The girls decided to tell the clerk at the front desk about the incidents. As they were attempting to do this, defendant came to the desk to checkout. At the same time, one of the girls’ mother came in, and upon finding out what had happened, threatened defendant. Defendant, thereupon left the rec center. The desk clerk informed the girls that defendant had been a regular for some time, and that their accusations were false. Sometime during the ensuing week, C.B.’s mother phoned the police and reported what had allegedly happened that night.

On January 26, 1984, Officer Don Hossack of the Kalispell Police Department obtained statements from S.M. and C.B. about the alleged incidents. A formal complaint alleging two counts of sexual assault was filed February 3, 1984. The last names of M.N. and R.L. were not obtained until later and their statements were taken February 3, 1984; two additional counts of sexual assault were filed against defendant on February 15, 1984.

The trial was held October 30 and 31, 1984. Eight witnesses testified at trial: the victims, M.N.’s mother, Officer Hossack, defendant, and defendant’s wife. The jury returned a verdict of guilty on Counts II and IV (C.B. and R.L.), and not guilty on Counts I and III (S.M. and M.N.). Defendant was sentenced to three years on Count II, and five years on Count IV, with four years of the five year sentence suspended.

On appeal, defendant raises five issues; we find the issues can be consolidated as follows:

1) Whether the District Court erred in not granting the defendant separate trials on each of the counts, or in the alternative, consolidating all of the counts into one charge.

(2) Whether there was sufficient evidence to send the case to the jury and support a verdict of guilty on two counts.

(3) Whether the District Court erred in instructing the jury concerning the definition of sexual assault.

Defense counsel filed a motion to consolidate all four counts into one count, or in the alternative to allow separate trials on each count.

Section 46-11-404(2), MCA, provides:

“(2) The court in which the case is triable, in the interests of justice and for good cause shown, may in its discretion, order that the different offenses or counts set forth in the indictment, information, or complaint be tried separately or divided into two or more groups and each of the groups tried separately. An acquittal of one or more counts shall not be considered an acquittal of any other count.”

Section 46-11-404(4), MCA, provides:

“(4) If it appears that a defendant or the state is prejudiced by enjoinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.”

The district judge denied the motion to grant separate trials for each count, finding that judicial economy favored a single trial and that defendant had made no showing of prejudice by the joinder of all counts for trial. A reading of the record supports the district judge’s ruling and reveals no showing of prejudice by defendant. In State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d 447, 42 St.Rep. 305, this Court upheld the district court’s ruling that two separate charges of deviate sexual conduct should be tried in one trial:

. . We find no prejudice to defendant that outweighs considerations of judicial economy. Additionally, the State argues persuasively that victims of these crimes should be considered. Each would potentially be a witness in both trials and be compelled to appear and testify twice.” 696 P.2d at 454, 42 St.Rep. at 313.

We find the Phelps rationale to be especially persuasive in the present case where there were four young victims.

The district judge also denied defendant’s motion to consolidate the four counts into one count, and stated that “would be tantamount to the outright dismissal of three (3) such counts.” A reading of Sections 46-11-404(2) and (4), MCA, shows the trial judge is granted discretion in whether to consolidate counts or order separate trials. There has been no showing the trial judge abused his discretion, nor that defendant suffered prejudice. Had the counts been separately tried defendant would have risked introduction of the other charges as similar acts or similar crimes evidence.

Defendant asserts there was insufficient evidence to send the case to the jury and to support a guilty verdict on two of the counts. We disagree. At the close of the State’s case, defense counsel moved that the charges be dismissed for the following reasons: (1) there were others in the hot tub who could have touched the girls; (2) the girls did not see defendant’s hand on their thighs or vaginal areas; and (3) the State did not show defendant knowingly assaulted these girls to satisfy his sexual desires. The district judge denied the motion. We find substantial evidence in the record to uphold the district judge’s decision to send the case to the jury.

C.B. and R.L. testified that only defendant was near enough to touch them while in the hot tub, and although they couldn’t see defendant’s hands, they knew it was his hand touching them in the water. Defendant admitted that M.N. and R.L. tripped and fell onto him, and he patted C.B. on the back and later told her she was exceptionally beautiful. C.B. and R.L. both testified defendant rubbed them on or near the vaginal area.

The testimony of the girls is substantial evidence creating a jury issue. Credibility of defendant and the girls was for the jury to decide. A directed verdict or motion to dismiss should only be granted where there is no substantial evidence on which a jury could base a conviction. State v. Doney (Mont. 1981), 636 P.2d 1377, 1381, 38 St.Rep. 1707, 1711.

Defendant also argues the State presented no evidence that he knowingly assaulted the girls to satisfy his sexual desires. We agree with the State that the girls’ testimony is substantial evidence from which to infer defendant’s intent. Intent is a fact question for the jury, and it is well-settled that the jury may infer intent from defendant’s acts. State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015.

Finally, defendant asserts the District Court erred in instructing the jury concerning the definition of sexual assault. Specifically, defendant argues jury instruction no. 11, taken from State v. Weese (Mont. 1980), 616 P.2d 371, 37 St.Rep. 1620, gives an overly broad meaning to the sexual assault statute, Section 45-5-502, MCA. Instruction No. 11 given to the jury reads as follows:

“The term ‘sexual or other intimate parts of another’ is intended to be given broad application and is not intended to restrict the crime to a touching of the genitalia or female breast and includes intimate impositions upon the victim. [Instruction No. 11; State v. Weese.]"

The trial transcript shows that defense counsel objected to this instruction, and argued that the Weese instruction did not apply to the facts of this case.

In Weese, the defendant rubbed the chest and belly of a 9 year old girl, and offered her money so that he could continue. The district judge found no evidence of sexual contact and dismissed the sexual assault charge. This Court reversed the dismissal and found the defendant’s conduct amounted to prohibited sexual contact. In discussing Section 45-5-502(1), MCA, we said:

“It appears to us that the policy behind our sexual assault statute is to criminalize and punish sexual or intimate impositions that do not involve penetration /cf. Section 45-5-503 (sexual intercourse without consent) and 45-5-505 (deviate sexual conduct)/; but which express a societal concern for such impositions because they provoke outrage, disgust or shame in the victim. The enhanced punishment for this offense when committed on a victim less than 16 years old by an offender 3 or more years older indicates an increased legislative concern for child victims.
“The Commission Comment to the sexual assault statute bears out this legislative purpose. To like effect, see Model Penal Code, Section 207.6, Comments.
“Use of the terms ‘sexual or other intimate parts’ indicates that the legislature did not intend or restrict the crime to touching of the genitalia of either sex or a touching of a female’s breast, but instead intended to give the terms a broader application. In keeping with the focus of sexual assault statutes on the outrage, disgust or shame engendered in the victim, other courts have held that the term ‘intimate parts’ in such statutes include the buttocks (In the Matter of David M. (1978), 93 Misc.2d 545, 403 NYS2d 178), the hips (Matter of Welfare of Adams (1979), 24 Wash.App. 517, 601 P.2d 995), and the prepubsecent chest of a 7-year old girl (State v. Turner (1978), 33 Or.App. 157, 575 P.2d 1007).
“In view of the purpose of the statute and interpretations by other courts of the term ‘sexual or other intimate parts’ in similar statutes, we construe the rubbing of the belly and chest of a 9-year old girl by an adult male for the purpose of gratifying his sexual desires as prohibited sexual contact within the meaning of the statute. Here the fact that defendant lifted the girl’s shirt to make the contact and offered her money to be allowed to continue is evidence that his purpose was gratification of his sexual desires.” 616 P.2d at 373, 374, 37 St.Rep. at 1622, 1623.

The holding of Weese is that touching is not limited to “sexual parts” and under the facts of the case a jury issue was created under the statute. The court’s language utilizing the phrase intimate imposition is far too broad for a jury instruction. “Intimate imposition” can be construed to encompass staring, or the touching of another’s knee or shoulder; the term shifts the focus from the defendant’s conduct to the sensitivity of the victim. Accordingly, if it is unclear what type of contact constitutes sexual assault, it becomes exceedingly difficult to determine whether a defendant had any sexual intent underlying the contact.

Instruction No. 10 gave the definition of sexual contact under Section 45-2-101(60), MCA:

“Sexual contact means any touching of the sexual or other intimate parts of the person of another, for the purpose of arousing or gratifying the sexual desire of either party.”

We find this statutory statement of what constitutes sexual contact to be adequate without embellishment. Under the facts of this case, including testimony that defendant had touched the breasts, buttocks, and vaginal areas of the victims, there was a jury issue under the statute. However understandable the District Court’s action in borrowing from the Weese opinion, we cannot allow the conviction to stand under an instruction that could punish innocent conduct. Here the jury could have found an “intimate imposition” for sexual arousal if they believed only the acts described by the defendant took place. The instruction is overbroad and requires a new trial.

We do not overrule Weese. Under the facts of Weese and the facts of this case a jury issue was created under Section 45-2-101(60), MCA. However, nothing broader than the statute itself should be given as an instruction.

We reverse the judgment of the District Court and remand for a new trial.

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


author: MR. JUSTICE HUNT

text:
    LOIS PARKER, Plaintiff and Appellant, v. WALKER TEN EYCK WEED, III. and Barbara Brewster, Defendants and Respondents.
    No. 85-371.
    Submitted on Briefs Oct. 25, 1985.
    Decided Jan. 27, 1986.
    713 P.2d 535.
    Nash and Nash, Bozeman, for plaintiff and appellant.
    Goetz, Madden & Dunn, James H. Goetz, Bozeman, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Parker appeals an order of the Gallatin County District Court denying Parker’s motion for summary judgment and granting Weed’s and Brewster’s motion for summary judgment.

Reversed and remanded with instructions. The sole issue on appeal is whether a right of first refusal violates the Montana rule against perpetuities, Sections 70-1-407, -408, MCA.

The facts of this case are not in dispute. On April 19, 1984, Parker signed a document entitled “First Right of Refusal.” Parker was designated “GRANTOR” and Weed and Brewster were designated “GRANTEES.” The agreement contained the following pertinent statements:

“GRANTOR agrees not to sell, transfer or assign all or any part of their interest in the above-described real estate (to other than his children or grandchildren) unless such interest shall have been first offered to GRANTEES for sale and purchase by them in accordance with the following provisions:
“(a) GRANTOR shall first offer to sell the above-described real estate to GRANTEES at the same price and upon the same terms and conditions as would govern upon a transfer to a third party ....
“(d) This First Right of Refusal is binding upon the heirs, personal representatives, administrators, successors, and assigns of each of the parties hereto, (including any children or grandchildren Transferees of .the Grantor.)” [Material in parenthesis interlineated in handwriting in original document.]

Weed and Brewster recorded this agreement at the Gallatin County Clerk and Recorder’s Office on April 13, 1984.

On August 31, 1984, Parker filed a complaint against Weed and Brewster seeking a declaratory judgment voiding the contract between the parties which contained the right of first refusal alleging the contract violated the rule against perpetuities.

On February 6,1985, Parker filed a motion for summary judgment. On March 11, 1985, Brewster and Weed also filed a motion for summary judgment. The issues were briefed by both parties, and on March 15, 1985, a hearing was held.

On May 30, 1985, the District Court issued an order granting Weed’s and Brewster’s motion for summary judgment. It held that the right of first refusal was not a property interest so the rule against perpetuities did not apply to the preemption agreement.

We faced a nearly identical situation in the case of Hardy v. Krutzfeldt (Mont. 1983), [206 Mont. 521,] 672 P.2d 274, 40 St.Rep. 1823. In that case, Hardy sought a declaratory judgment that a preemptive clause was invalid as an unreasonable restraint on alienation. The District Court granted Krutzfeldt’s motion for summary judgment and Hardy appealed. We held that the facts of the case presented no justiciable controversy over which the judicial power to determine real controversies extended. As we stated in Hardy:

“The only thing before this Court in this case is a difference of opinion among lawyers on the legal effect of the preemptive first refusal clause. We do not have before us any litigants involved in an actual controversy who are deprived of a property right in seeking redress. Our decision here will not affect any party to the contract directly, because on this record there has not been any intent by any party to sell property outside the preemptive clause, nor any third party seeking to be relieved from the preemptive clause. Hardy, 672 P.2d at 276.

In the instant case, Parker sought a declaratory judgment under the Uniform Declaratory Judgments Act that the right of first refusal was invalid a violation of the rule against perpetuities. The District Court granted Weed’s and Brewster’s motion for summary judgment and Parker appealed. As in Hardy, the record in the instant case discloses no pending sale or offer for sale, or purchase or offer to purchase the underlying property. No third party is before us challenging the clause’s application to him. Instead, we are being asked to render an advisory opinion.

Our reasoning in Hardy applies with equal force to this appeal.

“No litigant before us is in immediate danger of sustaining direct injury from the preemptive clause. Therefore we do not have a justiciable controversy over which the judicial power to determine real controversies may be exercised. Broad language in the Uniform Declaratory Judgments Act, Section 27-8-2101, et seq., MCA, may not be used as a platform for courts in this state to plunge into indefinite amorphous ponds of contract interpretation.” Hardy, 672 P.2d at 276.

Therefore, we reverse the order of the District Court granting respondents’ motion for summary judgment to the extent that it may be construed to determine the rights of the parties under the agreement containing the right of first refusal. The cause is remanded to the District Court with instructions to dismiss without prejudice.

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