author: MR. JUSTICE HUNT

text:
    FRANK STUBER, Claimant and Respondent, v. MOODIE IMPLEMENT, Employer, and John Deere Insurance Company, Defendant Insurer and Appellant.
    No. 88-459.
    Submitted on Briefs Dec. 16, 1988.
    Decided Feb. 17, 1989.
    769 P.2d 1205.

      Jardine, Stephenson, Blewett & Weaver, K. Dale Schwanke, Great Falls, for appellant.
    Torger S. Oaas, Lewistown, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

John Deere Insurance Company (insurer) appeals from a judgment of the Workers’ Compensation Court awarding claimant Frank Stuber temporary total disability benefits. Insurer contests the rate of disability payments awarded to Stuber. We affirm the Worker’s Compensation Court and remand for a determination of costs and attorney’s fees incurred by Stuber in this appeal.

The question presented for review is as follows:

1) When a full-time employee who works overtime hours that fluctuate on a seasonal basis is injured during the season of peak overtime, can a fair and reasonable approximation of the employee’s usual wages be arrived at by crediting the employee with the average number of overtime hours worked during the four pay periods preceding the accident causing the injury?

Claimant Stuber was employed by Moodie Implement, a farm implement dealer. In addition to his regular 40-hour week, Stuber was expected to work overtime hours as needed. No contract existed with regard to the amount of overtime, and at no time was Stuber guaranteed that overtime would be available. The amount of overtime varied from week-to-week. Generally, a substantial number of extra hours were required between the months of April and September. The work slowed during the late fall and winter.

During the busy season, on August 6, 1983, Stuber injured his lower back in an industrial accident. He continued to work after the accident until, approximately two and one-half months later, the severity of the injury forced him to quit.

On March 1, 1984, Moodie Implement’s insurer, John Deere Insurance Company, commenced paying Stuber disability benefits at a rate of $190.45 per week. Insurer arrived at this figure by averaging the amount of overtime Stuber worked during his last three pay periods, those that occurred subsequent to the accident. Insurer thus calculated that Stuber’s usual weekly wage included an average of 7.9 hours of overtime.

Stuber petitioned the Worker’s Compensation Court for a ruling that the insurer had underpaid his disability benefits. The parties submitted the case to the court on stipulated facts. The court concluded that the insurer had underpaid the disability benefits, finding that the overtime hours should have been averaged over the four pay periods preceding the accident. Using overtime figures from these pay periods, the court determined that Stuber’s usual weekly wage included 14.7 hours of overtime, entitling Stuber to a disability payment of $237.04 per week. The court awarded Stuber attorney’s fees and costs of $1,860.34 but denied his request for a 20% penalty against insurer for unreasonable delay in paying benefits.

At the time of Stuber’s injury, the Workers’ Compensation Act, §§ 39-71-101 through 39-71-2909, MCA (1983), did not set out a formula for computing wages. The act simply defined wages as “the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered.” Section 39-71-116(20), MCA (1983). In Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242, we held that overtime hours that are consistently and regularly part of the claimant’s work record constitute “usual hours of employment.” Neither party disputes the contention that Stuber’s overtime is includable in the computation of his average gross earnings. Rather, the dispute centers over the proper number of pay periods the Workers’ Compensation Court most consider when calculating the usual overtime hours of an employee whose overtime fluctuates with the seasons.

Insurer argues that the Workers’ Compensation Court erred by considering only those overtime hours accumulated by Stuber in the four pay periods preceding the accident. Insurer maintains that because those four pay periods occurred during the seasons of peak overtime, they are not of sufficient length to take into account the seasonal variations in Stuber’s overtime hours. In order to reach a fair and reasonable approximation of his usual weekly wages, insurer contends, Stuber’s total number of overtime hours must be averaged over his total number of weeks of employment with Moodie Implement.

Insurer relies on Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d 556, to support its position. Infelt, however, can be distinguished from the present case. Infelt involved a determination of partial disability under the predecessor to § 39-71-703, MCA (1983). The instant case, on the other hand, involved the computation of temporary total disability benefits under § 39-71-701, MCA (1983). We have previously stated that the issue of earning capacity involved in a determination of partial disability is not the same as the issue of compensation involved in a total disability case. Hutchison v. General Host Corp. (1978), 178 Mont. 81, 89, 582 P.2d 1203, 1207.

The statute governing compensation for injuries producing temporary total disability provides that “[w]eekly compensation benefits for injury producing total temporary disability shall be 66 2/s% of the wages received at the time of the injury. (Emphasis added.) Section 39-71-701, MCA (1983). Neither statute requires an averaging of earnings over an employee’s entire employment history, as the insurer urges us to do in this case. As long as the rate of disability fairly and reasonable approximates the wages earned at the time of injury, this Court will uphold the method used by the Workers’ Compensation Court to determine a claimant’s usual hours of employment.

In the present case, the Workers’ Compensation Court determined Stuber’s usual number of overtime hours by averaging his overtime over the four pay periods preceding the accident. We note that the legislature adopted this method of computation when it amended the Workers’ Compensation Act in 1987. New § 39-71-123(3), MCA, provides that an employee’s wages shall be averaged over the four pay periods preceding the injury unless the claimant, and only the claimant, can show that the use of the four pay periods does not accurately reflect his employment history. We recognize that the 1987 amendments are not dispositive of the present issue because they were enacted subsequent to the injury in question. We find it helpful, however, to refer to these amendments for guidance as to the definition of fair and reasonable compensation. As the legislature has specifically approved the method of calculation used by the Workers’ Compensation Court in this case, we cannot say that it is an unreasonable or unfair method by which to determine an employee’s average weekly wage.

Stuber injured his back on August 6, 1983. He continued his employment with Moodie Implement until approximately October 24, 1983, when he could no longer work due to the severity of his injury. Insurer argues that the Worker’s Compensation Court erred by failing to include in its computation of average overtime hours the pay periods worked by Stuber subsequent to his accident.

As noted previously, disability benefits are based on the wages received by the claimant “at the time of the injury,” Section 39-71-701,MCA (1983). Injury is defined as “a tangible happening of a traumatic nature from an unexpected cause of unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom . . .” Section 39-71-119, MCA (1983). Insurer maintains that the statutory definition of .injury is broad enough to encompass both the date of the accident and the date of the resulting disablement. Insurer points out that other jurisdictions have held that it is more appropriate to compute wages as of the time of the disablement, rather than the time of the accident. We note, however, that in both of the cases referred to by the insurer, Pepsi Cola Bottling Co. v. Long (Miss. 1978), 362 So.2d 182, and Ranger v. New Hampshire Youth Development Center (1977), 117 N.H. 648, 377 A.2d 132, the disablement occurred years after the accident. In the instant case, by contrast, the lapse of time between the accident and the disablement is a mere two and one-half months. In these circumstances, when the disablement occurs shortly after the accident, the appropriate time from which to figure usual wages is the pay period preceding the date on which the accident occurred.

Stuber requests his attorney’s fees and costs incurred in this appeal. Section 39-71-612, MCA (1983), provides that a claimant may recover his costs and attorney’s fees when controversy arises over the amount of compensation due and the Workers’ Compensation Court awards the claimant an amount greater than that paid by the insurer. The purpose of this provision is to avoid diminishing a claimant’s disability award by forcing him to pay attorney’s fees incurred in successfully pursuing his claim. Holton v. F.H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 270, 637 P.2d 10, 14. Likewise, an award of attorney’s fees to a claimant who successfully defends the rate of compensation on appeal is necessary to preserve intact his disability benefit. We therefore remand to the Workers’ Compensation Court for a determination of reasonable-costs ana attorney’s fees incurred by Stuber in this appeal.

We affirm the Workers’ Compensation Court’s award of disability benefits and remand for a determination of costs and attorney’s fees associated with this appeal.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    FIRST BANK (N.A.) — BILLINGS, Plaintiff and Appellant, v. RUSSELL C. CLARK, Defendant, Respondent and Cross-Appellant.
    No. 87-514.
    Submitted Dec. 29, 1988.
    Decided Feb. 21, 1989.
    Rehearing Denied April 3, 1989.
    771 P.2d 84.

      Moulton, Bellingham, Longo & Mather, Brad H. Anderson argued and W.H. Bellingham argued, Billings, for plaintiff and appellant.
    Herndon, Harper & Munro, Rodney T. Hartman argued, Billings, for defendant, respondent and cross-appellant.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Plaintiff First Bank-Billings appeals from a jury verdict and subsequent judgment entered October 1, 1987 in the Thirteenth Judicial District Court, Yellowstone County, awarding defendant Clark $16,398.95 for costs and reasonable attorney’s fees and $100,000 compensatory damages on his counterclaim for damages resulting form the Bank’s breach of the covenant of good faith and fair dealing and commission of constructive fraud. The Bank does not appeal the jury’s determination that defendant was not liable under a personal guaranty for the Parker-Montana Company debts remaining after its liquidation.

This Court entered a decision on December 16, 1988. First Bank-Billings v. Clark (Mont. 1988), 45 St. Rep. 2294. The Bank filed a timely Petition for Rehearing, pursuant to Rule 34, M.R.App.P., following this decision. Having considered the briefs filed by the parties on the petition, we now withdraw the original opinion and issue this opinion in its place.

Respondent raises the following issue on cross appeal:

1.Did the District Court err in refusing to submit Clark’s actual fraud claim to the jury?

Appellant raises the following issues on appeal:

1. Did the District Court erroneously allow attorneys Everson and Ragain to testify that an oral agreement between First Bank and Clark, releasing Clark from a guaranty agreement, had been reached and breached?

2. Did the District Court erroneously admit lay witness testimony as to the reason Clark signed a peaceful repossession document?

3. Did the District Court erroneously instruct the jury as to damages for lost income, damage to reputation, and emotional distress?

4. Did the District Court err in instructing the jury on the issue of a fiduciary duty owed?

5. Did substantial, credible evidence support the jury verdict:

a. that First Bank breached the implied covenant of good faith and fair dealing; and

b. that First Bank committed constructive fraud?

Russell Clark (Clark) was the president and majority shareholder in the Parker-Montana Company (Company), a farm equipment wholesale business, from 1970 until the liquidation of the company in 1983. The Company maintained a good relationship with First Bank Billings (Bank), the Company’s chief bank affiliation, up until 1982 when the Company began experiencing severe financial difficulties.

In late 1982, both parties agreed that the Company was in dire financial straits and that either a reorganization or dissolution of the Company was necessary. The Bank recommended liquidation and the parties commenced liquidation negotiations. Clark was primarily concerned during these negotiations with obtaining a release from a personal guaranty agreement that both he and his wife had executed on July 23, 1979 to secure Bank loans made to the Company.

Dennis Hove, the Company Vice President, approached Clark in the first week of February of 1983 and stated his interest in purchasing the Company. Hove subsequently submitted a written buy-out proposal to the Bank, for implementation upon the sale of the Company assets for debts outstanding. In this proposal, Hove offered to purchase all Company assets and to assume all Company liabilities, and in turn, Clark would be released from his personal guaranty. This purchase proposal hinged upon an agreement between the Bank and Company on the details of the intended liquidation. Consequently, a meeting was held on February 24, 1983, at which time the Bank set forth its proposal for liquidation of the Company.

The following people were present at this meeting: Russell Clark, James Ragain and Gary Everson (attorneys for the Company), Doug Aden (head of the Bank’s commercial loan department), Bob Waller (Bank president and personal friend to Clark), Gerald Murphy (attorney for the Bank), and Jack Carpenter (Small Business Association representative). The Bank at that time proposed to release the Clarks from their personal guaranty if they would deed to the Bank all real property used by the business in Billings, but owned by the Clarks and the Clark Children’s Trust, and if the Company would grant First Bank peaceful possession of all the Company’s inventory and accounts receivable. Clark rejected this proposal because he felt the collateral to be turned over to the Bank exceeded the debts owed and because he did not want to convey real estate held in trust for the benefit of his children.

Another meeting with Murphy, Waller, Ragain, and Clark was held on February 28, 1983. At this meeting, Waller stated that the Bank would take a trust indenture, rather than a deed, on all the above-mentioned property and in return release the Clarks from their personal guaranty. The parties differ as to whether Clark accepted this offer and reached an agreement with the Bank.

Appellant contended that Clark did not accept this offer for the same reasons previously outlined. Appellant alternatively contended that if there was an agreement, that Clark breached it when he failed to convey trust indentures to all the property; respondent did not give the Bank a trust indenture to lots 15, 16, 17 and 18.

Respondent, on the other hand, contended that he accepted the modified offer, shook hands with Waller and “congratulated him on getting the job done.” This agreement, however, was not reduced to writing. Yet, Hove testified that he struck a final deal with the Bank to purchase the Company after he was notified that an agreement had been reached between Clark and the Bank. Respondent further alleged that he fulfilled this agreement by giving a trust indenture to all the required lots. He was not required to give the Bank a trust indenture to lots 15, 16, 17 and 18, since Hove had secured an option to purchase these lots and had arranged financing. Hove later decided against purchasing these four lots, although his company did purchase and give the Bank a trust indenture to lots 2, 3, 4, 5, 6, 19, 20, 21, 22, and 23.

Both parties agree that the Bank decided to finance Hove’s purchase of the Company’s inventory and accounts receivable. The Bank arranged an April 7, 1983 auction of this Company property, less $100,000 worth of inventory to which Borg-Warner had a superior security interest. The auction followed Clark’s execution of a peaceful repossession agreement in favor of the Bank on March 4, 1983.

Hove bought all remaining inventory and accounts receivable at the auction with a high bulk bid of $1 million. Respondent alleged that this bid of $1 million was $100,000 less than that amount originally proposed and agreed upon by the Bank. An attorney for the respondent testified, however, that Doug Aden assured him over the phone just prior to the auction that the Bank would treat the actual bid as a $1.1 million bid for purposes of eliminating Clark’s debt to the Bank.

The Salvation Army subsequently purchased lots 7, 8, 9 and 10 from the Clarks in April of 1984. Pursuant to an agreement that Clark had with the Bank, Clark placed the net proceeds from this sale ($62,000) in an interest bearing account with the Bank. Clark later voluntarily awarded these funds to the involuntary bankruptcy trustee pursuant to a settlement agreement. (Borg-Warner and other creditors, not including the Bank, had filed an involuntary bankruptcy action against the Company on March 24, 1983.)

On November 8, 1984, the Bank filed suit against Clark on his personal guaranty in order to collect on the alleged Company debt of approximately $233,000 remaining after the auction. Clark was asked to resign from his position on the board of directors of First Interstate Bank in December of 1984. The decision to request Clark to resign was reached after discussion, continuing over several months, of the value of Clark’s continued representation on the board given his Company’s severe financial problems. Each year he had served as a director, Clark earned $5,000-$6,000.

A jury trial was held July 6 through July 11, 1987. The jury determined that Clark was not obligated, under his personal guaranty, for any Company debts. The jury awarded Clark $100,000 on his counterclaim for damages due to the Bank’s bad faith and constructive fraud. However, the court refused Clark’s request to submit instructions on actual fraud to the jury, and consequently, the jury determined that Clark was not entitled to punitive damages.

This appeal and cross appeal followed.

I. JURY INSTRUCTION ON ACTUAL FRAUD

For purposes of convenience, we have chosen to discuss the issue raised on cross appeal first. Respondent alleges by way of a cross appeal that the court erred in refusing to instruct the jury on the issue of actual fraud. Yet, a jury instruction on actual fraud is warranted only if defendant raised a question of fact by presenting some evidence of each of the following nine elements of actual fraud:

1. A representation;

2. Falsity of the representation;

3. Materiality of the representation;

4. Speaker’s knowledge of the falsity of the representation or ignorance of its truth;

5. Speaker’s intent that it be relied upon;

6. The hearer’s ignorance of the falsity of the representation;

7. The hearer’s reliance on the representation;

8. The hearer’s right to rely on the representation; and

9. Consequent ánd proximate injury caused by the reliance on the representation.

McGregor v. Mommer (Mont. 1986), [220 Mont. 98] 714 P.2d 536, 540, 43 St.Rep. 206, 211, citing Van Ettinger v. Pappin (1978), 180 Mont. 1, 10, 588 P.2d 988, 994.

The defendant failed to introduce any such evidence that the Bank made a false representation, which it knew to be false at the time, intending that Clark would rely on it to his detriment. Absent any evidence of the Bank’s actual intent to defraud Clark during the meeting of February 28, 1983, we find that the court did not err in refusing to instruct the jury about actual fraud.

II. LAY WITNESS TESTIMONY OF AN AGREEMENT AND BREACH

Appellant contends that the District Court erred in allowing attorneys Everson and Ragain to testify that the Bank and Clark had reached an agreement releasing Clark from his personal guaranty. However, respondent contends that the two attorneys’ presence at the February 1983 negotiation meetings qualified them to testify to their personal perceptions as lay witnesses. Rule 701, M.R.Evid., permits a lay witness to offer such an opinion if it is “rationally based on the perception of the witness and . . . helpful to . . . the determination of a fact in issue.” Further, a lay witness may even give an opinion on an ultimate factual issue if it complies with the foundational requirements in Rule 701, M.R. Evid., however, the opinion testimony must be “confined to matters of fact.” In re the Estate of Smith (Mont. 1988), [230 Mont. 140,] 749 P.2d 512, 517, 45 St.Rep. 93, 100,. citing Olson v. Coats (1986), 78 Or.App. 368, 717 P.2d 176, 178; Rule 704, M.R. Evid.

The contested testimony offered by Everson and Ragain, that an agreement was reached and later breached, certainly involved a fact in issue. (Both parties correctly conceded this point in the pretrial order.) Moreover, this testimony certainly could prove helpful to a jury determination, if based upon personal observations, in light of all the conflicting evidence presented as to whether an agreement was in fact ever reached. However, Everson’s testimony that the parties reached an agreement was not based on his personal perceptions. Rather, he relied upon information gathered from conversations with others.

A lay witness may not testify to such evidence gathered from interviews with other persons. State v. Clark (1984), 209 Mont. 473, 485, 682 P.2d 1339, 1345-46. Thus, in Clark, this Court excluded an investigator’s testimony that the defendant had a legitimate alibi, because the investigator’s proposed testimony, determined by interviews with others, was not based on his own perceptions. The Court further concluded that evidence which is not based on personal perceptions is not helpful to a jury. A jury is qualified to draw their own inferences and conclusions from those witnesses who do testify to their personal perceptions. Clark, 682 2d at 1346.

Everson’s testimony of an agreement, based upon his conversations with others, was similarly inadmissible. By his own admission, Ever-son was uncertain whether he attended the February 28, 1983 meeting during which the parties reached the alleged agreement:

“I do remember a meeting where it was all discussed, and I can’t recall for positive, five years ago, if that was the meeting that it was agreed to, or it was discussed . . .”

Clark, however, clearly remembered who was present at the February 28, 1983 meeting, and he testified that Everson was not present. Everson’s opinion that an agreement was reached thus could not be based on his own personal perception of the meeting. Everson and Ragain’s lay witness testimony of a breach similarly was not based on personal perceptions. The District Court thus erred in admitting this lay witness testimony.

III. LAY WITNESS TESTIMONY REGARDING THE PEACEFUL REPOSSESSION DOCUMENT

The District Court similarly erred in allowing Wayne Fitzgerald, a member of the Company’s management team, to testify that Clark signed the peaceful repossession document in exchange for Clark’s release from his personal guaranty. Fitzgerald based his opinion solely on hearsay statements made by Clark. Respondent contends that this hearsay testimony, however, was excepted from the hearsay rule and thus was properly admissible under Rule 803, M.R.Evid., as a statement of Clark’s state of mind on February 28, 1983.

Rule 803(3), M.R.Evid., states that the following are exceptions to the hearsay rule:

“A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition . . ., but not including a statement of memory or belief to prove the fact remembered or believed.” (Emphasis added.)

As stated in the Commission Comments, the hearsay rule would effectively be destroyed if statements indicating a state of mind were admissible to infer “the happening of the event which produced the state of mind.” Consequently, such statements are expressly inadmissible as hearsay under Rule 803(3), M.R. Evid. Clark’s later statement to Fitzgerald of his belief that he would be released from the guaranty if he signed the peaceful repossession document similarly may not be admitted to prove that the Bank did in fact release Clark from the guaranty.

The testimony of Fitzgerald, as well as of Everson and Ragain, related to a central issue of the case, namely, whether the parties reached an agreement and subsequently breached it. We hold that the admission of this testimony was erroneous and highly prejudicial to the plaintiff’s case.

IV. JURY INSTRUCTIONS ABOUT DAMAGES

Appellant contends that the evidence introduced at trial was insufficient to warrant a jury instruction on loss of income, damage to reputation, or emotional distress. Unquestionably, the jury has a right to hear and decide all questions of fact. Section 26-1-202, MCA. However, the trial judge is the one who must initially decide if a question of fact exists which warrants a jury instruction. See Rule 51, M.R. Civ.P. If any evidence exists in the record to warrant an instruction, the district court must offer a jury instruction on the issue. E.g., State v. Grant (Mont. 1986), [221 Mont. 122,] 717 P.2d 562, 569, 43 St.Rep. 685, 692, citing State v. Buckley (1976), 171 Mont. 238, 242, 557 P.2d 283, 285.

A. LOST PROFITS AND REPUTATION DAMAGES

Generally, a court should instruct a jury about damages resulting from lost income only if the record reveals some evidence that a wrongful act of one party caused the lost income. 2 M. Minzer, Damages in Tort Actions § 10.11 (1988); see generally Western Union Telegraph Co. v. Hall (1888), 124 U.S. 444, 8 S.Ct. 577, 31 L.Ed. 479. In the present case, the defendant alleged that the Bank’s filing of this lawsuit cost him his position as a board member of First Interstate Bank-Billings, a position netting Clark an income of $5,000-$6,000 per year. The defendant also alleged that his reputation was damaged by the filed lawsuit. Even assuming arguendo that the Bank’s action in filing the instant suit led to Clark’s lost income and damaged reputation, Clark still had to introduce some evidence indicating that the Bank’s action was wrongful. Without such evidence, the defendant is not entitled to any recovery and the jury is not entitled to even consider the issue. No such evidence was introduced showing that the filing of the suit was wrongful.

Utilization of the legal process to resolve a good faith controversy cannot constitute a basis for damages. Heine v. Seibert (1985), 217 Mont. 224, 703 P.2d 865, 868, 42 St.Rep. 1152, 1156. Resort to the legal process for resolution of a controversy is wrongful only upon proof that prosecution of the action was malicious. A charge of malicious prosecution in turn requires some evidence of each of the following basic elements:

1. A judicial proceeding commenced against the party alleging malicious prosecution;

2. the other party’s responsibility for instigating the proceeding;

3. a want of probable cause for the other party’s action;

4. the existence of malice as the motivator behind the other party’s action;

5. the termination of the proceeding in favor of the alleging party; and

6. damages suffered by the party alleging malicious prosecution. McGuire v. Armitage (1979), 184 Mont. 407, 410, 603 P.2d 253, 255.

The fifth requirement of the termination of a judicial proceeding in favor of the party alleging malicious prosecution:

“[N]ecessarily implies that an action for malicious prosecution may not be asserted by way of a cross complaint or counterclaim in the original proceeding.”

McGuire, 603 P.2d at 255, citing Baker v. Littman (1956), 138 Cal. App.2d 510, 292 P.2d 595. Yet, the defendant attempted to do just that in this case. Defendant’s assertion, that he was entitled to jury instructions and damages for the lost income and damaged reputation allegedly resulting from the Bank’s filed lawsuit, necessarily charged the Bank with wrongful prosecution of this case. The defendant, however, failed to introduce any evidence of a prior judicial proceeding terminated in his favor. He erroneously asserted his claim to a jury instruction for such damages by way of a counterclaim. Additionally, the defendant failed to introduce any evidence of malice or lack of probable cause. This lack of evidence of three of the key elements for a prima facie case of malicious prosecution, and thus of any wrongful action by the plaintiff in filing this action, undermined the defendant’s assertion that he was entitled to a jury instruction on damages for lost income and a damaged reputation. Accordingly, we hold that the District Court erred in submitting an instruction on these damages to the jury.

B. DAMAGES FOR EMOTIONAL DISTRESS

By statute, an injured party may recover an amount in damages which will compensate him for all the detriment, including emotional distress, proximately caused by the other party’s tortious conduct. Section 27-1-317, MCA; Gibson v. Western Fire Ins. Co., (1984), 210 Mont. 267, 291, 682 P.2d 725, 738. However, the injured party must introduce some evidence of the alleged damages from emotional distress before a jury is entitled to decide the issue of compensation for such damage. A jury instruction about damages for emotional distress is warranted, in the absence of any physical or mental injury, only if the defendant introduced some proof that plaintiff’s tortious conduct resulted in “a substantial invasion of a legally protected interest and . . . [caused] a significant impact on the person.” Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 686 P.2d 209, 213, 41 St.Rep. 1495, 1500; Noonan v. First Bank Butte (Mont. 1987), [227 Mont. 329,] 740 P.2d 631, 635, 44 St.Rep. 1124, 1129.

We note that the interest legally protected by this cause of action is the interest in freedom from emotional distress. See Restatement (Second) of Torts § 46 comment b (1965). However, because we do not live in “an ‘eggshell society’ in which every harm . . . gives rise to a right of action for mental distress,” this Court has held that a cause of action arises only if the invasion of this interest is substantial and the impact significant. Johnson, 686 P.2d at 213. The requirement of a significant impact indicates that the emotional distress suffered by the victim must be severe. This interpretation is in accord with the following portion of the Restatement (Second) of Torts § 46 comment j (1965), which we adopt and which states:

“Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquillity is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity . . . The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge ... It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.”

See also Buckley v. Trenton Savings Fund (1988), 111 N.J. 355, 544 A.2d 857 (holding that loss of sleep, aggravation, embarrassment, some headaches and nervous tension were insufficient to establish severe emotional distress); Bethards v. Shivvers, Inc. (Iowa 1984), 355 N.W.2d 39 (holding that lost sleep, anger, quivering when the contested subject arose, and worry over what other people would think did not rise to the level of severe emotional distress).

A district court has the duty of determining the threshold question of whether any proof of such severe emotional distress exists sufficient to raise a question of fact for the jury. Absent any such proof, a jury instruction on damages for emotional distress is improper. E.g., Richardson v. Fairbanks North Star Borough (Alaska 1985), 705 P.2d 454, 456; Shivvers, 355 N.W.2d at 44.

A jury instruction on emotional distress damages was improper in this case as the evidence introduced during the District Court trial was insufficient to raise a question of fact about the existence of severe emotional distress. Defendant alleged only that he felt bad, lost sleep, and became withdrawn as a result of the Bank’s failure to release him from his personal guaranty in violation of the alleged agreement between the parties. We therefore hold that the District Court erred in submitting the issue of emotional distress damages to the jury.

Our endorsement of the severe emotional distress standard found in the Restatement (Second) of Torts does not amount to a sudden departure from prior law regarding emotional distress damages. Severe emotional distress is only a new interpretation of the existing “significant impact” requirement. We therefore need not remand the case for a new trial on the issue of emotional distress damages under this new interpretation. The fact a party may be taken by surprise by the ruling of a reviewing court does not justify a remand when the reviewing court’s ruling, even if it is on an issue of first impression, does not constitute a sudden departure from the established rule of law. E.g., Brodie v. Hawaii Automotive Retail Gasoline Dealers Ass’n (1982), 65 Hawaii 598, 655 P.2d 863, 864. Clark had a full and fair opportunity to introduce all evidence of emotional distress damages during the District Court trial. This Court has previously held that a failure of proof after a fair opportunity to introduce all evidence will be attributed to an inability to prove such, rather than to any neglect by counsel. State ex. rel. La France Copper Co. v. District Court (1909), 40 Mont. 206, 208, 105 P. 721, 723; Harrington v. Montgomery Drug Co. (1941), 111 Mont. 564, 567, 111 P.2d 808, 810. We thus hold that Clark’s failure to introduce facts indicating severe emotional distress was due to his inability to do so, and a new trial on the issue thus would be futile, as well as contrary to the foregoing rule of law.

V. JURY INSTRUCTION ON FIDUCIARY RELATIONSHIP

Appellant also contends that the court erred in submitting a jury instruction on fiduciary relationships as the evidence introduced at trial failed to warrant such an instruction. Generally, a court errs in offering a proposed instruction if the subject matter of the instruction is not supported by the evidence introduced at trial. See generally Associated Agency of Bozeman, Inc. v. Pasha (Mont. 1981), [191 Mont. 407,] 625 P.2d 38, 42, 38 St.Rep. 344, 384 (holding that it was not error to refuse to offer a proposed instruction when the evidence failed to support it). Consequently, we will determine that the District Court erred in offering an instruction on fiduciary relationships only if the record indicates a lack of evidence of this type of a relationship.

A fiduciary relationship exists between a bank and its debtor only if special circumstances indicate exclusive and repeated dealings with the Bank. Pulse v. North American Land Title Co., of Montana (Mont. 1985), 218 Mont. 275, 707 P.2d 1105, 42 St.Rep. 1578. This Court has recently interpreted the Pulse case as requiring a bank to act as a financial advisor in some capacity, other than that common in the usual arms-length debtor/creditor relationship, in addition to requiring a long history of dealings with the bank, to establish a fiduciary relationship. Simmons v. Jenkins (Mont. 1988), [230 Mont. 429,] 750 P.2d 1067, 1070, 45 St.Rep. 328, 331.

Evidence introduced at trial attested to the long standing business relationship between the Company and the Bank. However, no evidence was introduced indicating that the Bank had acted as a financial advisor to the Company in a manner other than that common in the usual arms-length debtor/creditor relationship. Rather, the Company relied upon its own management team to make its financial decisions. An independent firm of attorneys routinely advised and represented the Company. Attorneys Ragain and/or Everson were present during the final negotiation meetings with the Bank; evidence of the long-standing friendship between Clark and the Bank president was insufficient to show that the Company relied upon the Bank as a financial advisor in such a manner as mentioned above. We therefore hold that the defendant failed to introduce any evidence showing that the parties had other than the arms-length debtor/creditor relationship which generally exists between a bank and its creditor. See Deist v. Wachholz (1984), 208 Mont. 207, 216, 678 P.2d 188, 193. Consequently, the court erred in submitting a fiduciary relationship instruction to the jury.

VI. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE VERDICT

Appellant initially raised the issue of whether the court erred in instructing the jury about the implied covenant of good faith and fair dealing and constructive fraud. The discussion in appellant’s brief, however, centered wholly on whether the evidence supported the jury verdict on these two issues. We need not rule on the issue of whether the evidence supported the jury’s verdict of breach of the implied covenant of good faith and constructive fraud before dismissing this case. Even if these claims were deemed to have merit, Clark would only be entitled to nominal damages. We have held that Clark is not entitled to a recovery under any of the damage theories presented (which included damages for lost profits, damaged reputation and emotional distress), and a party may not raise new issues on retrial. This Court will not grant a new trial to permit a party to obtain only such an award of nominal damages. Bogovich v. Scandrett (1945), 117 Mont. 341, 350, 158 P.2d 637, 641. We therefore reverse the judgment of the District Court, in accordance with the foregoing discussion, and order the court to dismiss this case.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, McDONOUGH and WEBER and MR. CHIEF JUSTICE HASWELL, Retired, sitting for MR. JUSTICE SHEEHY concur.


author: MR. JUSTICE McDONOUGH MR. JUSTICE HUNT, MR. JUSTICE SHEEHY,

text:
    R. GAIL HERNANDEZ, Claimant and Appellant, v. LELAND JENSEN, d/b/a Acme Press, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 88-484.
    Submitted on Briefs Jan. 5, 1989.
    Decided Feb. 22, 1989.
    Rehearing Denied March 30, 1989.
    770 P.2d 502.

      James Park Taylor, Geiszler, Taylor, Newcomer & McClain, Missoula, for claimant and appellant.
    Oliver H. Goe, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Montana Worker’s Compensation Court concerns the court’s denial of a request to lump sum benefits. Claimant, R. Gail Hernandez, petitioned to lump sum the majority of her entitlement alleging that financial hardship had created a pressing need for more household income. By placing the lump sum of benefits in various types of mutual funds and one real estate limited partnership, Hernandez hoped to increase her income by drawing a monthly rate of return from the investments. She also proposed that a portion of the lump sum benefits be used to establish funds generating a rate of return for her children’s post secondary education, emergencies, protection from inflation, and a down payment for the purchase of a house. The increase in income from her various investments would in part be used to make house payments. The lower court held that the proposal failed to overcome the presumption in the Montana Worker’s Compensation Act against lump summing benefits. We affirm.

Hernandez’s monthly income from bi-weekly payments totals $579.00. Hernandez also receives food stamps and lives in federally subsidized housing. Her food stamp entitlement fluctuates between $150.00 and $190.00 per month, and monthly rent for her four bedroom apartment totals $104. Hernandez does not qualify for Aid to Families with Dependent Children or Social Security Disability benefits. Her attorney will begin collecting a portion of her benefits each month to pay her agreed attorney fees. Hernandez’s husband lives in Peru and contributes little to the family income. Hernandez attempts to support five children and her sister-in-law using her benefits. The family income places the household well below the federal poverty line.

Evidence in the record established that lack of funds adversely affects Hernandez and her family. Hernandez must borrow money to provide for adequate medical care. Her eldest son works to provide money to attend college part-time. Hernandez testified she could not afford to provide high school graduation expenses for her eldest daughter.

Hernandez also testified to housing problems due to low income. Her third story apartment is too small and makes coming and going difficult because she suffers from a bad back. Hernandez believes that some of her neighbors exert a bad influence on her children. She has investigated the feasibility of obtaining better housing using the proposed fund for making a down payment on a home. However, she revealed no definite plan for obtaining the financing needed to complete a home purchase.

Hernandez contends on appeal that she demonstrated that a lump sum entitlement satisfied a pressing need and served her best interest. Thus, according to Hernandez, the lower court erred in denying her request. Hernandez also contends that the lower court’s decision is not supported by substantial evidence, and that the lower court denied her equal protection of the laws through its erroneous reasoning.

The State Compensation Insurance Fund (Fund) responds that Hernandez failed to make a showing sufficient to overcome the presumption favoring bi-weekly payments. For example, the Fund contends that evidence in the record demonstrates Hernandez exaggerated her financial problems. The Fund points out that Hernandez pays $20.00 per month for cable T.V., spends another $50.00 per month renting video tapes, and has already received lump sums to provide for medical debts and future medical expenses.

The Fund also contends Hernandez exaggerated her budget needs for medical expenses, and failed to pursue available programs for help in meeting her medical needs. The Fund also argues that the decision of the lower court may be justified by the negative impacts of Hernandez’s plan. Hernandez’s rent subsidy and food stamps would likely decrease with an increase in income. The Fund further asserts that an award of a lump sum to provide for educational expenses for Hernandez’s children fails to overcome the presumption favoring periodic benefit payments.

There exists a high probability that in inflationary times the rate of return from investments purchased with a discounted lump sum of benefits will exceed the income generated by bi-weekly payments. 3 A. Larsen, The Law of Workmen’s Compensation § 82.72(d) (1988). However, Montana law requires more than a showing of increased income through a feasible investment plan. LaVe v. School District No. 2 (1986), [220 Mont. 52,] 713 P.2d 546, 548, 43 St. Rep. 165, 168. Otherwise, bi-weekly benefits would become the exception and lump sums the rule. LaVe, 713 P.2d at 548.

In passing on any lump sum proposal, the lower court must consider the best interests of the claimant, the claimant’s family, and the public. Komeotis v. Williamson Fencing (Mont. 1988), [232 Mont. 340,] 756 P.2d 1153, 1155-56, 45 St.Rep. 1098, 1101. In weighing these interests, the presumption favors bi-weekly payments. Komeotis, 756 P.2d at 1156. This Court affords the lower court with wide discretion in reviewing lump sum decisions because the lower court occupies the best position to familiarize itself with the needs of the claimant and the results which would probably follow granting or denying the petition for a lump sum. Komeotis, 756 P.2d at 1156.

In this case, an investment plan accompanies a strong showing of financial need. However, the increase in income would probably be accompanied by loss of subsidies. The proposed investment plan has an element of risk. The house purchase plan necessitates a large debt which will further increase the claimant’s expenses. The lower court considered the advantages and disadvantages of the plan and decided the presumption against lump summing controlled. Under these circumstances, we hold that the lower court acted within its discretion and that substantial evidence supports its decision.

Claimant’s equal protection argument also fails. Hernandez contends that the lower court’s decision rests on the classification of individuals. According to Hernandez, under the lower court’s reasoning, individuals with business acumen may receive lump sum benefits, and individuals without business acumen may not. Hernandez argues that this classification improperly infringes on the “fundamental” right to receive worker’s compensation benefits.

First, a review of the decision of the Worker’s Compensation Court reveals that the decision rested on the particular facts of this case. Most importantly, the lower court considered the interests of Hernandez, her family, and the public. The lower court concluded that in light of the particular facts of this case, the legal presumption favoring bi-weekly benefits controlled. Thus, there exists no issue here on whether or not a classification based on possession of business acumen may survive equal protection analysis. AFFIRMED

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

MR. JUSTICE WEBER did not participate in this matter.

MR. JUSTICE HUNT,

specially concurring:

I concur in the result reached by the majority here for the reasons that it has long been the policy (albeit a policy without a purpose) for the State of Montana to refuse its injured workers a lump sum that can be invested for their benefit. The proposals set forth in the dissent of Mr. Justice Sheehy are well worth consideration by the legislature.

The plight of the claimant demonstrates that being an injured worker in Montana is no big financial deal. To those who assume that there is rocking chair money in Worker’s Compensation benefits, I recommend reading the facts of this case.

MR. JUSTICE SHEEHY,

dissenting:

Under this incredible Opinion, it is the decision of the Court that it is better to keep this woman on public assistance and food stamps than to invest the monies to which she is entitled to give her an adequate living income.

Dear reader, look at the background of exploitation and carelessness that we sanction in the Worker’s Compensation system.

On September 21, 1984, R. Gail Hernandez suffered an injury arising out her employment with Acme Press in Missoula County. The Fund, as the insurer, accepted liability for her injury and has paid her weekly disability benefits from April 22, 1985 through the present. In her employment with Acme, she was receiving on-the-job training but in the ten months she worked there, her pay never increased from $5.00 an hour for a 40 hour week. She learned no skill while on the job, her employment having confined her to menial tasks in the printing shop.

Following her injury, her condition gradually deteriorated so that she was unable to continue her work with Acme. She reached maximum healing in the fall of 1986. The Compensation Fund refused to acknowledge that she was permanently totally disabled. She requested a determination of her permanent disability from the Worker’s Compensation Court, as well as a lump sum distribution of a portion of her Worker’s Compensation benefits. On September 22, 1987, a pretrial conference before the Worker’s Compensation Court was held. There the Fund denied that she was permanently totally disabled and denied that it should pay any amount to the appellant in a lump sum. Three days before the trial, however, which took place on November 2, 1987, the Fund finally admitted that her disability was permanent and total.

For the dispute as to her permanent disability, she has received no attorney fees as far as I can determine. Her monthly benefits of $579.00 per month are apparently now reduced by 25% because of her attorney fees to the sum of $434.25 per month. Why the Fund should not bear the attorney fees, I am unable to determine from the record.

At the time of the hearing, Mrs. Hernandez was a 41 year old married female. She is a high school graduate and an honorably discharged veteran who served in the United States Navy. She is married, but her husband lives in Peru, and does not send support on any regular basis. She has four children, ages 20, 18, 7 and 6, all of them live with her in federally-subsidized housing. She is their sole support and also the sole support for her sister-in-law and her sister-in-law’s infant baby.

The children have dental problems, and a daughter is having medical problems involving fainting and stomachaches, but all dental and health care must be postponed because she is unable to provide medical insurance for herself or her children nor can she afford the deductible for Medicaid.

Her oldest son is 20 years old. He is presently attending the University of Montana on a part-time basis and is working part-time. All of the income which he earns goes toward his education and he cannot afford to go to school on a full-time basis. The oldest daughter is 18, and hopes to go either to a trade school or to college but she has no funds with which to pursue her education beyond high school. The position of the Fund is that she ought to go out and borrow the money.

This family’s income places it at 53% of the poverty level established for a family of that size. Janet L. Finn, a licensed social worker testified in detail about the problems that face low income families. Extended poverty leads to feeling of hopelessness and helplessness with little opportunity for future progress because the focus has to be on day-to-day survival. Such families experience a high drop-out rate in high school, are more likely to face educational difficulties in school and are also more likely to suifer from health problems. The apartment in which this family lives is a third floor apartment, with no elevator, in a neighborhood where frequent vandalism occurs.

The Worker’s Compensation Court found that her lifetime benefits entitlement if she lived through her life expectancy is $246,050.99, less $23,651.82 which she has received in the past. Before the Workers’ Compensation Court, she requested a lump sum advance of $170,065.00, of which $123,065.00 would be used to fund a monthly income for her of $1,500.00. There were other proposals for a down-payment on a modest home, a reserve fund, a minimal education fund for the children and protection against inflation. Two expert witnesses testified that the money could be invested and provide such benefits if the request were granted by the court.

Even deducting the amounts objected to by the Fund in this cause, her monthly budget approximates $600.00 per month, which obviously she is unable to meet with the income now provided her from her compensation benefits.

Why did the Workers’ Compensation Court refuse her request which might give her at least an approach to the federal poverty income level? It said:

“The lump sum requested by the claimant not only seeks to ensure her of an income that she enjoyed prior to her injury, but in fact will increase her earnings by 50 percent and double her budget. The proposal of claimant here does not merely seek to allow her to sustain herself financially or return her to her asset situation as prior to her injury, but will completely alter her economic status above that which she was enjoying at the time of her injury.”

If this claimant had not been injured in the course of her employment, if that employment had not given her a degenerative disc condition at several levels, if she had not traded her lifetime working ability for the paltry benefits of the Workers’ Compensation system, the foregoing statement of the Court might be tolerated. Her injury denied her every possibility of ever improving her situation and reduced her to grinding poverty. When she presents a plan that could offer some relief, she is denied because she might improve her income from a menial job and because of the policy of the Court and of the legislature respecting “passive income.”

As I dictate this dissent, three-month treasury bills backed by the United States Government are yielding 8.5% interest per year. Two-year notes are yielding approximately 9% per year. By simply taking $100,000.00 of her entitlements and placing it under supervised investment in government securities, her present income could easily be doubled, and the whole principal saved. In the guise of preserving the “best interests of the claimant”, this Court, hemmed in by prior caselaw that cannot logically be supported is actually adverse to her best interests.

Years ago, when much of the cash of the state was languishing around the country in no-interest bank accounts, it was decided to take advantage of investment of these monies through the Board of Investments. I suggest that § 39-71-2324, in cases such as this, allows funds to be transferred to the Board of Investments, supervised by that Board, and used to produce income from investments which would relieve the payments due from the fund. I see no legal reason why we could not order, in the best interests of this claimant, that the Fund itself invest these monies on behalf of this claimant to provide her a living income.

Things have come to a pretty pass when this Court decides that it is better to keep a person on food stamps and public assistance than to relieve her situation through the proper use of her benefits. There is a hollow echo of Marie Antoinette in this Opinion: Let them eat foodstamps.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, Appellant, v. KEVIN DEAN WALSTON, Respondent.
    No. 88-296.
    Submitted on Briefs Dec. 16, 1988.
    Decided Feb. 23, 1989.
    768 P.2d 1387.

      Marc Racicot, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Susan Loehn, County Atty., Scott B. Spencer, Deputy, Libby, for appellant.
    David W. Harman, Libby, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State appeals an order by the Nineteenth Judicial District Court, Lincoln County, suppressing physical evidence obtained pursuant to a search, under warrant, of the defendant’s home and automobile. The District Court held that the affidavit supporting the application for the search warrant failed to establish probable cause. We reverse.

The following issue is raised on appeal:

1. Did the District Court improperly suppress evidence obtained under a search warrant:

a) which was supported by probable cause; and

b) which was relied upon, in good faith, by law enforcement officers?

On December 11, 1987, Donald Bernall, a detective with the Lincoln County Sheriff’s Office, applied for a search warrant authorizing the search of defendant’s residence at #6 Taylor Road outside Libby, Montana, and of his 1975 white Ford Mustang. Bernall applied for this search warrant after a confidential informant stated he had legally been in defendant’s residence at least twice in the past five months, and that while there, he had observed marijuana plants growing within the residence and marijuana in processed form at various locations throughout the residence. Bernall also stated, based upon his professional training and experience, that such a marijuana growing operation is “highly likely to stay in one location for long periods of time and not be quickly or often moved.” Additionally, the informant stated he had “recently heard” defendant admit to growing marijuana within his residence and to selling marijuana within the Libby city limits. This confidential informant had previously provided information to Detective Bernall which had proven true.

According to the affidavit, defendant owned only one operable automobile specifically described as a 1975 white Ford two-door Mustang, VIN 5R032156098, with a license plate number 56-30505. Defendant’s residence was also described with particular detail as a white trailer with aqua-blue trim, with an “add-on” and a “large quantity of firewood stacked on. the front porch,” located in the Berget trailer park on Parmenter Hill.

After considering all these facts set forth by affidavit, the justice of the peace issued a search warrant on December 11, 1987. The warrant authorized the search of defendant’s residence and operable automobile for marijuana, sale documentation, drug paraphernalia, and any other “fruits of the crime.” Law enforcement officers subsequently stopped defendant and searched his automobile. The search disclosed a bag of marijuana in the glove compartment, a pair of forceps and a marijuana pipe. A subsequent search of defendant’s residence revealed marijuana plants, various items used to grow marijuana and another marijuana pipe and pair of forceps.

On December 14, 1987, defendant was charged by complaint with the felony offense of criminal possession of marijuana with intent to sell (Count I) and the misdemeanor offenses of criminal possession of dangerous drugs (Count II) and criminal possession of drug paraphernalia (Count III). An information was filed in District Court on January 4, 1988.

Defendant pled not guilty during his arraignment on January 11, 1988. He subsequently filed a motion, to suppress all evidence taken from his automobile and residence pursuant to the search warrant, which he alleged was unsupported by probable cause. Following a hearing on the motion on May 24, 1988, the District Court held that the affidavit offered in support of the search warrant application did not contain facts establishing probable cause for issue of the warrant. Consequently, the court ordered all evidence seized from defendant’s automobile and residence suppressed. The State appeals from this order.

The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana State Constitution both protect a person’s right to be free from unlawful searches and seizures by requiring the existence of probable cause prior to the issuance of a search warrant. An impartial magistrate must determine the existence of such probable cause solely from the evidence in “the four corners of the search warrant application.” State v. O’Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. The evidence sufficient to establish probable cause, however, is significantly less than that required for a conviction. Applicants need only illustrate the probability of criminal activity, not a prima facie showing of criminal activity. State v. Crain (Mont. 1986), [223 Mont. 167,] 725 P.2d 209, 210, 43 St. Rep. 1628, 1629.

To determine whether a probability of criminal activity exists meriting a search warrant, a magistrate must employ a “totality of the circumstances” analysis. This analysis requires an issuing magistrate to:

“(M)ake a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. The totality-of-the-circumstances analysis, used to determine the existence of probable cause, expanded upon the previous “two-pronged” analysis and effectively broadened the circumstances under which a search warrant would issue. The “two-pronged” test had required an affidavit to reveal: (1) the basis of the informant’s knowledge (i.e., “the particular means by which he came by the information given in his report”); and (2) some of the underlying circumstances indicating either the veracity of the affiant’s informant or the reliability of the informant’s report. Gates, 462 U.S. at 228-29; see also Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed. 2d 637; Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L. Ed. 2d 723.

The facts in Gates would not have satisfied this “two-pronged” test, as the detective’s application for a search warrant was based upon an anonymous letter accusing the defendant of selling drugs and detailing an intended future drug purchase. Gates, 462 U.S. at 225, 103 S.Ct. at 2325. The anonymous letter did not disclose how the informant came by the information, and the anonymity of the letter prevented detectives from ascertaining the veracity of the informant. However, the United States Supreme Court held that the totality of the circumstances alleged in the affidavit, which included the facts contained in the anonymous letter as well as the findings of a subsequent investigation verifying many of the facts stated by the informant, justified the issuing magistrate’s conclusion that a probability of criminal activity existed.

The information relayed by the confidential informant in the present case, unlike that in the Gates case, indicated the probability of criminal activity and evidence in the defendant’s house and car under both the more stringent former “two-pronged” analysis as well as the current totality-of-the-circumstances analysis. The informant stated that the basis for his knowledge, that marijuana and drug paraphernalia were present in defendant’s house, came from his own personal observations on at least two different occasions within the five months prior to his conversation with Detective Bernall. The informant also recently had heard defendant state he was growing marijuana within the house and that he was selling marijuana within the Libby city limits. The informant stated that the defendant owned only one operable automobile, which was described in detail. This fact could correctly lead the issuing magistrate to conclude that the marijuana reportedly grown in the house and sold in Libby would be transported via this car.

The facts also indicated the veracity of the informant. Detective Bernall objectively stated that he personally knew the informant and that the informant had provided information in the past which had proved true. We thus hold that the District Court erred in holding that no facts existed indicating the veracity of the informant and in concluding that no probable cause existed. We have previously held that information of a criminal activity known from observation by a previously reliable informant, such as we have in the present case, is sufficient to establish the probability of criminal activity without outside investigation and verification of the reported information. See, e.g., State v. Hendrickson (1985), 217 Mont. 1, 701 P.2d 1368.

We also hold that the related information was not so stale as to negate the magistrate’s determination of probable cause. The informant stated that he had “recently” heard defendant state he was growing marijuana in his house and selling marijuana in Libby. The word “recently” connotes a period of time relatively near the disclosure of information and a time distinctly different than the observations made on two other occasions during the prior five months.

Moreover, this Court has previously noted that a determination of staleness in any given case depends largely on the nature of the property and activity in issue. State v. Pease (Mont. 1986), [222 Mont. 455,] 724 P.2d 153, 43 St. Rep. 1417. As stated in Pease:

“The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.”

Pease, 724 P.2d at 160, quoting from Andresen v. State (1975), 24 Md.App. 128, 331 A.2d 78, aff’d sub. nom. Andresen v. Maryland (1976), 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627. Likewise, if the criminal activity is continuing in nature, a greater amount of time may elapse between the observation of the activity and the application for a search warrant without negating probable cause. The facts in this case indicate just such a continuing criminal activity. The confidential informant had seen marijuana growing in defendant’s home on two separate occasions within the five months prior to the search warrant application and the defendant had recently admitted that he was still growing marijuana. Bernall’s statement that a marijuana growing operation is “highly likely to stay in one location for long periods of time” provides a further indication of the continuing nature of the reported crimes. Given the continuing nature of the criminal activity in this case, we hold that information of the “recent” growth and sale of marijuana, together with information of the same activity twice within the prior five months, was not too remote in time to indicate the probability of continuing criminal activity at the time the magistrate issued the search warrant.

We admonish law enforcement officers, however, to state with specificity the time the informant learned such information to prevent the future suppression of evidence for lack of probable cause due to staleness. We do recognize that on occasion, as in the present case, an officer may deliberately obscure the specific time to protect the identity of a confidential informant’s identity.

The totality of the facts presented by Detective Bernall’s affidavit provided a substantial basis for the issuing magistrate’s determination that probable cause existed meriting a search warrant. The District Court thus erred in suppressing evidence obtained under the search warrant. As this Court previously has stated, a reviewing court may only determine whether the issuing magistrate had a substantial basis for determining that probable cause existed, keeping in mind that a magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” O’Neill, 679 P.2d at 765, quoting from Spinelli, 393 U.S. 410, 89 S.Ct. 584.

Having found that the search warrant was supported by probable cause, we need not discuss the applicability of the good faith exception to this case. The suppression order of the District Court is reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.

MR. JUSTICE HUNT,

dissenting:

I dissent. The affidavit in this case lacks the evidence to support a finding of probable cause to search either the defendant’s car or his residence.

In order to find probable cause, the facts set out in the affidavit must be closely related to the time of the issuance of the warrant. Sgro v. United States (1932), 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260, 263. In other words, the affidavit must be based on current facts, those that indicate that a law is being violated at the time the warrant is issued. State ex rel. Townsend v. Dist. Court (1974), 168 Mont. 357, 362, 543 P.2d 193, 196. Facts alleging criminal activity that occurred five months prior to the application for a warrant are simply too remote to justify a determination of probable cause.

The affidavit in question states that a confidential informant, while in the defendant’s home, observed marijuana plants and marijuana in processed form “at least two (2) times in the past five months.” The logical assumption stemming from this allegation is that at least one of these observations occurred five months prior to the application, otherwise there would be no need to use that particular timeframe. There is no indication when the other observation took place. Perhaps it occurred five months prior to the application, perhaps four and one-half months, perhaps three weeks. The language of the affidavit serves only to obscure the applicable time, making it impossible to determine when the informaht actually saw the evidence of criminal activity, thereby making it impossible to establish probable cause.

Apparently, the majority feels that any defects in the remoteness of the observations are cured by the claim that the informant “recently” heard the defendant state that he was growing marijuana. Once again, the terminology merely serves to conceal the date on which the statement was made. “Recent” is a relevant term. “[W]hat is recent to one person is not recent to another. Whereas the word ‘recent’ may be months in some situations, it may be a much shorter period of time elsewhere.: State v. O’Brien (1974), 22 Ariz. App. 425, 528 P.2d 176, 178, review denied, (1975), 112 Ariz. 41, 537 P.2d 28. All I can really surmise from the use of the word “recent” is that the defendant’s admission probably did not take place more than five months before the warrant issued.

The majority further attempts to justify probable cause by relying on the continuing nature of the crime. Indeed, it is arguable that cultivating marijuana is an endeavor that often continues for a period of time. However, the nature of the crime cannot overcome the problems created by the vague assertions of time contained in this affidavit. All I know for certain from this affidavit is that an informant sighted marijuana at the defendant’s residence five months prior to the application for a warrant. Without more concrete proof that the defendant continued to engage in criminal activity, I am unwilling to rely on the nature of the crime to cure this affidavit’s deficiencies.

Furthermore, there is no reference whatsoever to the date on which the informant heard the defendant state that he was selling marijuana within the Libby city limits. We have previously held that an affidavit that omits any reference to time is void. Townsend, 168 Mont. at 362, 543 P.2d at 196. So too should we refuse to enforce the warrant authorizing the search of the defendant’s car when the only information linking the car to the transportation of marijuana is an undated allegation that the defendant admitted he was selling within the city limits.

The majority voices concern over the protection of confidential informants. Protection of informants, however, should not take precedence over the right of people to be free from unreasonable searches and seizures. Other steps, such as independent investigation on the part of the authorities, can be taken to protect informants. Independent investigation also establishes corroborating evidence to bolster a determination of probable cause.

The majority opinion legitimizes warrants issued on loose, vague references to time. The Fourth Amendment demands a more exacting factual basis than is presented in the present case.

I would affirm the suppression order of the District Court.

MR. JUSTICE SHEEHY concurs in the foregoing dissent of MR. JUSTICE HUNT.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JEFFREY KEVIN O’BRIAN, Defendant and Appellant.
    No. 88-414.
    Submitted on Briefs Dec. 29, 1988.
    Decided Feb. 23, 1989.
    Rehearing Denied April 3, 1989.
    770 P.2d 507.
    John L. Pratt, Ask & Pratt, Roundup, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Floyd Brower, Musselshell County Atty., and Gerry M. Higgins, Deputy County Atty., Roundup, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Defendant Jeffrey O’Brian (O’Brian) appeals from the judgment and sentence entered by the Fourteenth Judicial District Court, Musselshell County. Based upon the results of an Intoxilizer test administered to O’Brian, the District Court found him guilty beyond a reasonable doubt of a per se violation of driving a vehicle with a blood alcohol concentration greater than 0.10. We affirm.

The sole issue raised upon appeal is whether the District Court erred in admitting the results of. an Intoxilizer 5000 blood alcohol concentration test when the test was allegedly not administered in compliance with requirements of the Administrative Rules of Montana?

Shortly after 2:00 a.m. on May 26, 1987, officer Woodrow Weitzel stopped O’Briari for failing to dim his lights. The officer requested O’Brian to produce his driver’s license and insurance, which O’Brian produced without difficulty. The officer, however, detected the strong odor of alcohol on O’Brian’s breath while talking with him. Consequently, the officer requested O’Brian to take several field sobriety tests, including the Horizontal Gaze Nystagmus test and the one-legged stand test. Following these test, the officer placed O’Brain under arrest for driving under the influence of alcohol (DUI) and drove him to the Musselshell County jail. An Intoxilizer 5000 test was administered at the jail.

Officer Weitzeil, a trained operator of the Intoxilizer 5000 instrument administered the test. The officer first conducted a calibration check of the instrument by passing a simulator solution through the instrument. The solution had a known concentration of 0.10 grams of alcohol per 210 liters of vapor five to seven months prior to this calibration check. The Intoxilizer 5000 registered an alcohol content in the solution of 0.060. The officer ran an air blank through the instrument clear all traces of alcohol vapor from it and then requested that O’Brian blow into the instrument. It registered O’Brian’s blood alcohol concentration at 0.207 at 2:32 a.m. that morning. The officer conducted another calibration check with the same simulator solution. The solution registered an alcohol content of 0.062 during the second check. An air blast was again run through the instrument and then O’Brian was again tested. This second test of O’Brian, three minutes after the first test, registered a blood alcohol content of 0.187. O’Brian was subsequently charged by amended complaint with operating a motor vehicle with an alcohol concentration of 0.10 or more in violation of § 61-8-406, MCA.

O’Brian was tried on this charge in Justice Court on November 13, 1987. Following a trail and without determination of guilt, the Justice of the Peace dismissed the criminal charge inn the amended complaint for lack of jurisdiction. Among other errors, the Justice of the Peace found that O’Brian had not been arraigned on the amended charge of DUI per se and had not entered a plea to this charge prior to trial. The county then appealed this dismissal to the Fourteenth Judicial District Court of Musselshell County.

On April 7, 1988, the District Court arraigned O’Brian on the DUI per se charge and then proceeded with a nonjury trial, over objection of double jeopardy and lack of a speedy trial by the defense counsel. At the conclusion of the trial, the court held that the Intoxilizer 5000 test was administered in substantial compliance with state statutes and the Administrative Rules of Montana. The court then adjudged the defendant guilt, based solely upon the results of the Intoxilizer 5000 test, of driving with a blood alcohol content of 0.10 or greater in violation of § 61-8-406, MCA. The court ordered O’Brian to pay a $100 fine, to pay for and complete an alcohol treatment program, and to surrender his permanent driver’s license. O’Brian appeals from this judgment and sentence.

Appellant contends that Officer Weitzeil failed to administer the Intoxilizer 5000 test in compliance with the requirements of the Administrative Rules of Montana. The Rules require a calibration check to fall within a plus or minus one-tenth range of the known alcohol concentration of a reference solution to guarantee the instrument’s accuracy prior to admission of the test. Yet, in this case, the Intoxilizer 5000 registered the simulator solution at 0.060 and 0.062 just prior to the testing of appellant. These readings do not come within the required plus or minus one-tenth range of the known 0.10 alcohol concentration of the solution. Consequently, the appellant contends the test was not administered in compliance with the Administrative Rules of Montana, the accuracy of the test results were questionable, and the court thus erred in admitting the Intoxilizer 5000 test results into evidence.

At the outset, we note that a criminal defendant charged with driving under the influence of alcohol is indeed entitled to any procedural safeguards in the Administrative Rules of Montana. State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328, 1331, 42 St.Rep. 414, 419. Those procedural safeguards which are relevant to this case and which the defendant alleges were violated are found in § 23.4.135(2), ARM (1987):

(2) The department shall examine and evaluate any breath-testing instrument submitted for its approval. The department may approve the instrument if the instrument meets the following criteria:

(b) The instrument is capable of analyzing a suitable reference sample, such as air equilibrated with a reference solution of known alcohol content at a known temperature. The results of such analysis must fall within a range defined by plus or minus one-tenth of the alcohol concentration of the reference solution or such other limits set by the department . . .

This Administrative Rule requires only that the Intoxilizer 5000 instrument be capable of analyzing a reference simulator solution within a plus or minus one-tenth range. The Rule does not require a calibration check before each test, although officers routinely ran such a check prior to the testing of each defendant.

The Intoxilizer 5000 instrument used on the defendant had satisfied the requirements of the Administrative Rules prior to its use. Expert witness William Newhouse, a forensic scientist at the Montana Department of Justice’s Crime Laboratory in Missoula, testified that the instrument in use at the time of defendant’s arrest had been installed in the Musselshell County Sheriffs office on June 17, 1986. At that time, a calibration check using a similar solution with a known alcohol concentration of 0.10, resulted in a 0.102 reading. This reading was well within the permissible one-tenth range of accuracy. Additionally, the officer who administered the test on the defendant was properly trained in the use of the Intoxilizer 5000 test and conducted the test in accordance with such training. We hold that the evidence adduced at trial was sufficient to indicate the proper working condition of the instrument on May 26, 1987 and to ensure the legal sufficiency of the admitted evidence. Expert witness Newhouse testified that a calibration check is not necessary prior to every breath test to ensure the accuracy of an Intoxilizer 5000 instrument. Rather, periodic calibration checks would sufficiently guarantee the proper working condition of the instrument. On October 8, 1987, Joe Stewart, another forensic scientist with the Crime Lab in Missoula, conducted just such a periodic check of the instrument at issue in this case. The Intoxilizer registered the alcohol level of a new simulator solution with a known 0.10 alcohol concentration at 0.098, 0.096, ,0.098, and 0.0987, respectively, after four separate calibration checks. Each of these checks indicated the instrument was properly working and calibrating within the instrument’s required range of accuracy. Newhouse thus concluded:

“Again, based on our records at the laboratory and on the log records, I can tell you, based on my familiarity with this instrument over four years and [with] 65 other instruments, that I can tell that instrument was measuring blood alcohol content on breath test accurately on May 26, 1987.”

Further, the testimony at trial sufficiently explained the reason for the low calibration checks on May 26, 1987 and the lack of effect such low readings would have had on the accuracy of the appellant’s breath tests. As Newhouse testified, the low calibration readings of 0.060 and 0.062 on May 26, 1987 were due to a general decrease in the alcohol concentration of the simulator solution because of its repeated use over the prior four to five month period. The Crime Lab instructed all officers operating the Intoxilizer 5000 to change the simulator solution once a month to prevent this decrease in the solution’s alcohol concentration, but the officers failed to do so. Consequently, many calibration checks such as the ones run on May 26, 1987 proved essentially worthless because of the unknown alcohol concentration of the simulator solution. However, these invalid calibration checks had no bearing on the validity of the defendant’s breath test for, as stated by Newhouse, “calibration checks are entirely independent of the breath tests.” The low calibration readings thus were not indicative of a faulty instrument, but only of a gradually diminished alcohol content in the simulator solution. We therefore hold that the District Court did not err in holding that the Intoxilizer 5000 test was administered in substantial compliance with the Administrative Rules of Montana.

The evidence introduced at trial indicated probable cause for the arrest, the proper administration of the Intoxilizer test to O’Brian, the proper working condition of the instrument, and the excessive alcohol concentration in the defendant’s blood at the time of his arrest in violation of § 61-8-406, MCA. The Intoxilizer 5000 registered the alcohol concentration of O’Brian’s breath first at 0.207 and then at 0.187, which when averaged to 0.197 amounts to nearly double the alcohol concentration allowed when driving an automobile upon the public roads in Montana. This concentration indicated O’Brian had been operating his vehicle with an alcohol concentration of 0.10 or more in violation of § 61-8-406, MCA, a statutory provision imposing absolute liability upon a defendant upon proof of such an excessive concentration. The District Court thus did not err in finding the defendant guilty beyond a reasonable doubt of driving while under the influence of alcohol and in then imposing a sentence in accordance with § 6-8-722, MCA.

The judgment and sentence of the District Court are affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent. This case should be dismissed under our statutes the evidence of the breath tests were inadmissible.

Evidence of the results of a breath test for alcohol concentration is admissible if the breath analysis report was prepared and verified by the person who performed the test. Section 61-8-404(b)(i), MCA. The police officer here who prepared the report, being not otherwise divinely equipped, could verify the report only by use of the calibration check of the intoxilyzer. The contention of the State is that we can ignore the erratic result of the calibration check. Under the statute for admissibility, however, the report must not only be prepared by the officer, but verified by him.

The procedure established for police officers to verify the breath test of a DUI suspect is to conduct a calibration check using a reference solution with a known 0.10 alcohol concentration.

The majority admit that the intoxilyzer test of the simulator solution produced two results, 0.60 and 0.62, just prior to the testing of the appellant. The readings taken of the appellant shown an inaccuracy, registering 0.202 in one instance and three minutes later, 0.187 in another, a variance of at least 7.5 percent, although the intoxilyzer is supposed to be accurate to within plus or minus 5 percent.

We have no way of knowing whether the intoxilyzer was working accurately on May 26, 1987, when O’Brian was tested, because it is impossible to determine from the record the known concentration of the alcohol simulator at the time, which would have verified his test results. The State tries to explain away the inaccuracy of the verification sample by having its witness testify that the alcohol content of the simulator had reduced in the period of time from a known concentration of 0.10 to the recorded concentration on May 26, 1987 of 0.060. The log belies this argument. The log of this police officer’s tests with the registered calibration checks are as follows:

Date Simulator Results Blood/Alcohol Results

4-16-87 .073 .227

4-21-87 .078 .000

5-9-87 .063 .158

5-17-87 .066 .175

5-17-87 None .164

5-17-87 None .170

5-25-87 .064 .219

5-26-87) .060 .207

5-26-87) O’Brian .062 .187

7-6-87 .084 .162

7-14-87 .081 .000

7-20-87 .074 .084

8-12-87 .046 .048

8-15-87 .091 .235

9-9-87 .050 .195

9-19-87 .065 .169

9-19-87 .053 .063

9-19-87 .074 .133

The logs show conclusively that if the intoxilyzer were correctly recording the alcohol concentration in the simulator solution, the alcohol concentration increased rather than decreased following the O’Brian test. In fact, the check tests of the simulator solution eight days before O’Brian was tested (May 17) showed no alcohol in the simulator solution. On May 26, for a check of O’Brian, the simulator had increased in alcohol concentration from no alcohol on May 17 to 0.060 on May 26! In the test checks of the simulator solution in the months following the O’Brian test, on July 6 the intoxilyzer recorded 0.084, an increase of 0.022 in alcohol concentration or a 35.5 percent increase. On August 15, the simulator gave an alcohol concentration result of 0.091, an increase of 46.7 percent from the O’Brain check test. Thus, the State’s explanation that as time wore on the alcohol in the simulator solution decreased is belied. The intoxilyzer check tests following O’Brian’s tests show the reference simulator increasing and decreasing in alcohol content. Either the Intoxilyzer was incorrectly recording the check tests or the reference simulator solution was performing a feat of alchemy, manufacturing and devouring alcohol at will. O’Brian therefore established not only a reasonable doubt as to the accuracy of the tests performed upon him, but a very substantial doubt as to the verification of his tests.

The State Crime Laboratory personnel recognized the problem when the machine was inspected on October 8, 1987. An entry was written by the inspector in the log as follows:

Annual Inspection of Calibration2/new 186 — 19/.100 *DO NOT USE THIS INSTRUMENT WHEN THE RESULT OF THE CALIBRATION CHECK IS OVER .110 OR BELOW 0.90/ CHANGE SOLUTIONS ONCE PER MONTH AT THE FIRST OF THE MONTH, RECORD THE DATE OF THE CHANGE IN THE LOG BOOK, AND ALWAYS ALLOWS THE SOLUTION TO HEAT UNTIL THE READY LIGHT COMES ON.

The accuracy of the verification tests is important because of the very minute amounts of alcohol being measured through a breath test. To convict a person of DUI under 61-8-406, MCA, it must be shown that the alcohol concentration in his breath is 0.10 or more. “Alcohol concentration” for breath tests is defined by statute as “grams of alcohol per 210 liters of breath.” Section 61-8-407, MCA. This is a weight/volume definition, proportioning the weight of alcohol against a volume of air.

Absolute alcohol has a specific gravity of 0.789. A gram of alcohol will occupy a volume of 1.26 cubic centimeters. A gram of alcohol is proportional against a breath volume of 210 liters, which equals 55.5 gallons of liquid volume. That proportion is so distended that one can see that a variation of a very small amount in alcohol content will result in wide swings in the resultant alcohol concentration in the same volume of breath.

A cubic centimeter may be considered as the upper top of your little finger distally from the root of the nail. To achieve a 0.10 alcohol concentration sufficient for conviction, approximately Vs of the volume of the top of your little finger, or 0.126 cubic centimeters of alcohol must be present in 55.5 gallons of breath. The man with a lung capacity of 55.5 gallons has yet to be born, and so the amount of alcohol to qualify for a 0.10 alcohol concentration in breath must be reduced in that proportion to the amount of alveolar air present in the lungs. It is a tiny amount. There is no doubt that scientists have devised machines such as intoxilyzers which will measure breath alcohol content within a range of plus or minus 10 percent. Machines, however, are not unlike your automobile. Sometimes things go wrong. For that reason, the statute on admissibility of evidence of breath alcohol tests requires verification of the machine’s results. Here, verification is lacking.

O’Brian was first stopped in this case because he failed to dim his lights at 2:00 in the morning in Roundup, Montana. He must be truly amazed at what unfolded in connection with his prosecution subsequently. The principal witness relied on by the State was William Newhouse, described by the State as a forensic scientist from the State Crime Laboratory. “Forensic” literally means argumentative. There is no such science as forensics because a forensic is an art and not a science. His educational background is in physics. He has testified in regard to determination of blood alcohol by breath analysis over 60 times in Montana courts. If his testimony here is an example, he is more of a paid gun than a scientist. His testimony essentially is to the effect that the intoxilyzer was working correctly when the simulator solution was first used and was working correctly on October 8, 1987, when it was inspected by a person from the State Crime Laboratory. His testimony is that we can disregard the erratic results of the simulator solution because the intoxilyzer was recording accurately. What is left out in this testimony, however, is that without a reference simulator of known alcohol content, the tests taken of O’Brian on May 26 have not been verified by the person administering the test. Section 61-8-404 (b)(i), MCA. Under the statute, therefore, the results of O’Brian’s test should not have been admitted into evidence.

I would reverse the conviction in this case.

MR. JUSTICE HUNT concurs with the foregoing dissent.