author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    BURLINGTON NORTHERN RAILROAD COMPANY, Petitioner and Appellant, v. MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION, PUBLIC SERVICE COMMISSION, Thomas J. Schneider, Clyde T. Jarvis, John Driscoll, Howard Ellis and Danny Oberg, Respondents and Respondents.
    No. 85-603.
    Submitted May 14, 1986.
    Decided June 5, 1986.
    720 P.2d 267.

      Crowley Law Firm, Michael E. Webster, argued, Billings, for petitioner and appellant.
    Clay R. Smith, argued, Asst. Atty. Gen., Helena, for respondents and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

After a hearing and submission of briefs, the Montana Public Service Commission (PSC) dismissed a petition by Burlington Northern Railroad Company (BN) to close its operation at Lodge Grass, Montana. The dismissal was based on the PSC’s conclusion that it lacked jurisdiction. Lodge Grass is on the Crow Indian Reservation. BN sought review in the District Court for Yellowstone County, and the court affirmed the PSC’s order. We reverse.

The issue is whether the PSC properly determined that it does not have regulatory jurisdiction over the proposed closure of the Lodge Grass Station.

BN’s predecessor, Big Horn Southern Railroad Company, was granted a right-of-way through the Crow Indian Reservation by Act of Congress in 1889. The purpose of the right-of-way was “for the construction, operation, and maintenance of [Big Horn’s] railroad, telegraph, and telephone lines . . Section 3 of the Act provided in part that “the surveys, construction, and operation of such railroad shall be conducted with due regard for the rights of the Indians, and in accordance with such rules and regulations as the Secretary of the Interior may make to carry out this provision. . .” The Act was amended in 1893 to expand the time frame for construction and to modify the legal description of the right-of-way. The Lodge Grass station was constructed on the right-of-way, and BN eventually succeeded to Big Horn’s interest under the 1889 and 1893 Acts.

In 1981, BN requested authority from the PSC to discontinue its station at Lodge Grass. The request was made under A.R.M. Section 38.4.301. The reasons given for the request were the lack of business at Lodge Grass and the availability of a station at Hardin to take over the Lodge Grass station’s remaining duties. On July 27, 1982, the PSC held a public hearing on the proposed closure. There was testimony that there had been no shipments into or out of the Lodge Grass station for over two years. There was also testimony about proposed Tribal business ventures which would use the station. At the end of the hearing, the PSC requested briefs on whether it had jurisdiction to decide upon BN’s application.

The Crow Tribe has since enacted a common carrier ordinance. The ordinance was not relied upon by either the PSC or the District Court in their decisions.

In concluding that it did not have jurisdiction over BN’s petition, the PSC found that: (1) Burlington Northern had succeeded to Big Horn’s interest under the 1889 and 1893 Acts; (2) the 1889 Act “provided generally that the surveying, construction, and operation of the right-of-way was to be subject to the approval and/or regulations of the Secretary of Interior;” and (3) “[t]he impact of the proposed abandonment will fall predominantly, if not exclusively, on the Lodge Grass agency and Tribal members dependent upon rail service to that station.” Relying on White Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665, the PSC concluded that the propriety of its asserting jurisdiction over BN’s application involved balancing state and federal/tribal interests and that federal/tribal interests predominated under these circumstances. The District Court affirmed this decision on cross-motions for summary judgment.

The White Mountain Apache test applies where “a State asserts authority over the conduct of non-Indians engaging in activity on the reservation.” White Mountain Apache, 448 U.S. at 144, 100 S.Ct. at 2584. BN argues that its interest in the railroad right-of-way is in the nature of a fee interest, and that the balancing test set out in White Mountain Apache does not apply. BN’s argument is not persuasive. The PSC cites United States v. Soldana (1918), 246 U.S. 530, 38 S.Ct. 357, 62 L.Ed. 870 as authority that the title of the Crow Tribe to the land within the Big Horn (now BN) right-of-way was not extinguished when the right-of-way was created. We conclude that the Crow Tribe retains an interest in the land underlying the right-of-way and therefore, the White Mountain Apache balancing test applies.

White Mountain Apache concerned the State of Arizona’s efforts to apply its motor carrier license and use fuel taxes to a non-Indian enterprise operating solely on the Fort Apache Reservation. The Court held that the taxes were pre-empted by federal law, but distinguished the process it used to reach this conclusion from standard preemption analysis. The Court held that:

“[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest. (Citations omitted.) More difficult questions arise where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation. In such cases we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. (Citations omitted.)” White Mountain Apache, 448 U.S. at 144-45, 100 S.Ct. at 2584.

In White Mountain Apache a crucial factor in the balance of State interests against federal/tribal interests was the comprehensive scheme of federal regulation of the harvesting of Indian timber, in the form of Acts of Congress, detailed Interior Department regulations, and day-to-day supervision by the Bureau of Indian Affairs. White Mountain Apache, 448 U.S. at 145-48, 100 S.Ct. 2584-86. Also weighed in the Court’s consideration were the economic burden on the Tribe of the asserted taxes, and the “significant geographical component of tribal sovereignty.” White Mountain Apache, 448 U.S. at 151, 100 S.Ct. at 2587. On the other side of the balance was the State’s general interest in raising revenue. White Mountain Apache, 448 U.S. at 150, 100 S.Ct. at 2587. The Court held that the federal/tribal interests outweighed the State’s interest, and the State was denied jurisdiction.

In the present case, in marked contrast, there is an absence of federal regulation of railroad rights-of-way over Indian land, although there is clearly authority for it. The absence of regulatory action by both the federal government and the Crow Tribe during a period of close to 100 years is highly significant. It could even be called acquiescence, in view of Montana’s 70 years of regulation of railroads, including railroads running through this reservation. Montana has enacted a comprehensive regulatory scheme governing all railroads doing business in this state, at Title 69, Chapter 14, MCA.

Second, and also in contrast to White Mountain Apache, the state jurisdiction sought here is regulatory jurisdiction for the public good, not authority to tax. The PSC has the same statutory obligation to consider the interests of the Indian people of Montana and of the Crow Reservation as of the non-Indian or off-reservation people.

We accept the finding that the impact of closure of the Lodge Grass station would primarily affect tribal members, because that finding is not clearly erroneous. See City of Billings v. Billings Firefighters (Mont. 1982), [200 Mont. 421,] 651 P.2d 627, 632, 39 St.Rep. 1844, 1849. However, because of the testimony that the station was not used for over 2 years preceding BN’s petition and was used very infrequently before that time, we do not weigh this factor heavily.

Under White Mountain Apache we have weighed the interest of the State, which is represented by more than 70 years of comprehensive regulation of all railroads in Montana, both on-reservation and off-reservation, as compared to the federal/tribal interest, which is represented by an absence of federal statutory or administrative regulation and an absence of any action by the Crow Tribe in the nature of an ordinance or other attempt to regulate the railroads on the reservation. We emphasize that we are not ruling upon the Crow Tribe’s common carrier ordinance, which is not properly before us. We conclude that the State’s interest significantly outweighs the federal/tribal interest. We therefore reverse the decision of the PSC and the District Court. We order the PSC to assume jurisdiction and to proceed to rule upon BN’s petition to close the Lodge Grass Station.

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

MR. JUSTICE SHEEHY,

concurring specially and dissenting:

I agree of course that some governmental entity must have jurisdiction of subject matter here, the proposed closure of the railroad station at Lodge Grass, and that at the time of the proceedings here, the PSC has that jurisdiction.

In the meantime though, the Crow tribe has adopted a regulatory ordinance applying to railroads which is the subject of an action in the federal district court to determine its validity. Immediately upon remand by us to the PSC for further action relating to the closure, the question will undoubtedly arise whether, in view of the adoption of the tribal ordinance, the PSC has any further jurisdiction, or whether it properly belongs in the Crow tribe. Undoubtedly the federal district court will be called upon to decide that issue. Anticipating this, I would stay the effect of our decision here until a final determination is made in the federal district court as to whether the Crow tribe now has exclusive jurisdiction of the proposed closure under the tribal ordinance. In that way, we would avoid a potential conflict between the federal and state courts in this matter.


source: Caselaw Access Project

author: MR. JUSTICE MORRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD DUANE JOHNSON, Defendant and Appellant.
    No. 85-268.
    Submitted on Briefs May 1, 1986.
    Decided June 6, 1986.
    719 P.2d 1248.

      Stewart A. Pearce. II, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, Betty Wing, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Richard Duane Johnson (defendant) appeals the jury verdict and April 30, 1985 judgment of the fourth Judicial District Court, County of Missoula, finding defendant guilty of driving or being in actual physical control of a motor vehicle upon the public ways of Montana while under the influence of alcohol. Johnson also appeals the sentence imposed. We affirm.

Defendant was found by a Missoula County Deputy Sheriff, Officer Peterson, at approximately 1:40 a.m., December 8, 1983, in a disabled car on Interstate 90 near East Missoula. Officer Peterson, while discussing the predicament with defendant, noted that defendant appeared to be intoxicated. Officer Peterson requested that defendant perform several field sobriety tests. Defendant either refused or was unable to perform each test. Defendant was then arrested.

Thereafter, Officer Peterson took defendant to the patrol car and told defendant that he would be tape recording defendant’s statements. After obtaining defendant’s name, Officer Peterson advised defendant of his Miranda rights. Defendant acknowledged that he understood those rights, then asked if he had the right to “address somebody.” The following conversation ensued:

“MR. JOHNSON: Yes I understand. Do I have the right to address somebody?
“DEPUTY PETERSON: Yeah. In just a second, okay. I have got a tape recorder on. Everything you say from this time
“MR. JOHNSON: I understand that.
“DEPUTY PETERSON: is going to be tape recorded. Okay.
“MR. JOHNSON: I would like to talk to somebody.
“DEPUTY PETERSON: It is 2:01 a.m. on December 8, 1983, Thursday morning, okay?
“MR. JOHNSON: You have an advantage because my hands are handcuffed and I would like to talk to somebody.
“DEPUTY PETERSON: You would like to — who do you want to talk to?
“MR. JOHNSON: I am not, I haven’t decided yet.
“DEPUTY PETERSON: Okay.
“MR. JOHNSON: This is dirty pool you guys. God Almighty. Hey, am I off the record here?
“DEPUTY PETERSON: No, you are on the record. You are on tape Richard.
(Pause)
“MR. JOHNSON: Oops, (unintelligible) I knew that sucker. (Pause) You have to realize right now that you are not getting me for DWI because I was in the ditch, (long pause)
“MR. JOHNSON: You know I am going to sue you bastards so bad because I wasn’t driving that car. It is going to be fun (pause) — You have so much fun hauling guys in. Isn’t that fun?
(Pause)
“DEPUTY PETERSON: Who was driving the car Richard?
“MR. JOHNSON: I was driving the car.
“DEPUTY PETERSON: You were driving the car?
“MR. JOHNSON: Yeah. I was driving the car.
“DEPUTY PETERSON: How did it get in the ditch?
“MR. JOHNSON: Somebody grabbed the wheel.
“DEPUTY PETERSON: Who grabbed the wheel then?
“MR. JOHNSON: The person I picked up on the way home.
“DEPUTY PETERSON: Where did that man go?
“MR. JOHNSON: Well you look that guy up. I don’t know. No, he was a nice guy. He would
“DEPUTY PETERSON: Do you know who it was?
“MR. JOHNSON: No, I don’t know. Do you know who he was?
“DEPUTY PETERSON: No, I don’t. I didn’t see him.
“MR. JOHNSON: He is about 6T”. Grabbed the wheel when I went in the ditch there. (Pause) You should have driven up and down the street there aways there.
“DEPUTY PETERSON: Why is that?
“MR. JOHNSON: Well, you tell me — you didn’t see the guy. Really?
“DEPUTY PETERSON: No, I didn’t see anybody.
“MR. JOHNSON: Well, that’s your problem. That’s not mine. Go back and look for him.
“MR. JOHNSON: So what do I do with these handcuffs?
“DEPUTY PETERSON: Well I am going to take them off you here in just a minute Richard.
“MR. JOHNSON: Can I go home?
“DEPUTY PETERSON: Well soon as I, soon as I’m done with everything we need to do then maybe you can.
“MR. JOHNSON: This is a lot of fun being handcuffed you know.
“DEPUTY PETERSON: Okay, the time is now 2:08 a.m. on December 8, 1983. I am going to turn the tape off.”

A videotape of defendant attempting to perform several physical maneuvers at the request of Officer Peterson was taken upon arrival at the police station. Between maneuvers, defendant asked if he could call his attorney. After the maneuvers were completed and an implied consent form was read to defendant, defendant agreed to submit to a breathalyzer test. The result showed a blood-alcohol concentration of .197.

Next, Officer Peterson again turned on the videotape, advised defendant of his rights and asked if defendant wanted to answer some questions. Defendant replied, “I’d be obliged to, yes.” This portion of the videotape was suppressed by the trial judge because of defendant’s earlier request for an attorney.

Defendant was incarcerated overnight. On December 19, 1983, an information was filed in Missoula County District Court charging a third offense DUI (Count I) and failure to have current registration (Count II). Count II was subsequently dismissed. After several delays and waivers by defendant of his right to a speedy trial, a jury trial was held February 25, 1985.

At trial, defendant provided a detailed account of his actions on the night of December 7 and the early morning hours of December 8, 1983. Defendant testified that he and his wife ate dinner at the Heidelhaus in Missoula, Montana. After dinner, defendant took his wife home and proceeded to The Edgewater for a night cap. Defendant claimed that he drank two, maybe three, drinks at The Edgewater with a friend. Then, realizing he was nearly out of gas and had no money, defendant contends he drove to a bar in East Missoula called “The Cabin” to cash a check. Apparently defendant had attempted to cash checks at The Edgewater before, to no avail. Defendant further testified that he purchased a double shot drink in a “go cup” at “The Cabin” to drink with his wife upon returning home.

According to defendant’s testimony, as he was entering the westbound lane of 1-90 from the on-ramp, the steering in his car locked. It was snowing heavily and the roads were icy. The car headed for the ditch, became high-centered on a snowbank and was thereby rendered immobile. After a short time, a passing motorist allegedly stopped to assist. Because of the motorist’s intoxicated condition, defendant refused his offer of a ride but asked the man to phone defendant’s wife and a towing service. Thereafter, defendant claims he decided to drink the double shot. Then, remembering some blackberry brandy left in the car from the previous hunting season, defendant alleges he drank approximately three-quarters of a pint bottle to try to keep warm. Defendant further claims not to have started or attempted to move the car after drinking the double shot.

Approximately an hour and a half after the car left the road, Officer Peterson appeared. A tow truck arrived shortly thereafter. Defendant’s wife allegedly arrived at the scene, but after her husband had been transported to the police station.

The essence of defendant’s story at trial was that he may have been intoxicated at the time Officer Peterson discovered him, but that he had not been “under the influence” at the time the car became stuck on the side of the road. Rather, his intoxication allegedly resulted from the alcohol consumed after the car left the road.

Officer Peterson also testified at trial. He stated that upon first approaching defendant’s vehicle, the left front tire was in contact with the pavement; steam or smoke and a smell of burned rubber were emitting from that area. A search of defendant’s car and the surrounding area uncovered no discarded beverage containers or brandy bottles. In addition, the inventory sheet signed and prepared by Sergeant A1 Kimery, now deceased, failed to indicate the discovery of any alcohol container.

During a break in the trial, Officer Peterson returned to the location where defendant’s vehicle was discovered, placed two sheriff’s vehicles in the positions previously occupied by defendant’s and Peterson’s vehicles and took five photographs of the vehicles. The pictures were entered into evidence through Officer Peterson to show the location and angle of defendant’s car.

Finally, during rebuttal, Officer Peterson was questioned, based on his experience and training in automobile mechanics, as to what, in his opinion, happens when the power steering on a vehicle fails. This testimony was elicited in response to testimony of defendant with respect to the alleged failure of his power steering mechanism and the performance of his car at that moment. Defendant had been qualified as an expert in the area because of his experience with power-steering failure in front and rear-wheel drive vehicles.

Following presentation of the evidence, the jury convicted defendant of driving or being in control of a motor vehicle on the public ways of Montana while under the influence of alcohol in violation of Section 61-8-401(1), MCA. He was sentenced to one year in the Missoula County Jail with all but fifteen days suspended, ordered to contribute $1,000 to the Missoula City/County Health Department’s Drinking and Prevention program and had his driver’s license suspended “until he receives a probationary driver’s license and then only for driving to and from work and on the job.”

On appeal, defendant raises the following issues:

1. Whether the trial judge erred in refusing to grant defendant’s motion to suppress his tape-recorded statement, the videotape of his actions and the results of his breathalyzer test?

2. Whether the trial judge erred in admitting into evidence the five photographs of the scene of the incident taken by Officer Peterson at the time of trial?

3. Whether the trial judge erred in permitting the State to elicit “expert” testimony from Officer Peterson with respect to the events following failure of the power steering system in an automobile?

4. Whether the trial judge erred in refusing to grant defendant’s motion for a mistrial after the defendant had been unduly prejudiced by the State’s reference to a deputy sheriff killed in the line of duty?

5. Whether the trial judge abused his discretion in sentencing defendant, who suffers from claustrophobia, to 15 days in jail?

6. Whether the trial judge illegally sentenced defendant to a term of incarceration by failing to state any reason for the imposition of that condition?

I.

MOTION TO SUPPRESS

On August 30, 1984, defendant moved to suppress his tape-recorded statement, the videotape of his actions and the results of his breathalyzer test. The State’s motion in opposition was filed September 20, 1984. Then, on October 5, 1984, defendant filed a motion to hold the suppression hearing in abeyance until this Court reached a decision in State v. Armfield (Mont. 1984), [214 Mont. 229,] 693 P.2d 1226, 41 St.Rep. 2340. Armfield was rendered on December 28, 1984, and a third omnibus hearing was held January 9, 1985. The trial judge issued an order February 19, 1985, holding that our decision in Armfield dispensed with defendant’s entire motion to suppress. We disagree.

In Armfield, supra, we held that an individual arrested on a charge of driving while under the influence of alcohol has no constitutional right to the advice of legal counsel prior to deciding whether to submit to a breathalyzer test. We found the breathalyzer test to be analogous to requirements that an accused “submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Armfield, 693 P.2d at 1230, 41 St.Rep. at 2434, citing U.S. v. Wade (1967), 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149, 1155. which quotes Schmerber v. California (1966), 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916. Thus defendant’s breathalyzer test results are admissible in evidence.

Likewise, the videotape of defendant’s attempts to perform specific sobriety tests at the police station is admissible as the performance of the physical maneuvers is not testimonial in nature. Armfield, supra; State v. Purdie (Mont. 1984), [209 Mont. 352,] 680 P.2d 576, 578, 41 St.Rep. 754, 756.

However, defendant’s tape-recorded statement is testimonial and thus potentially self-incriminating. We must therefore determine whether the right to counsel was invoked by defendant.

The United States Supreme Court has held that only a specific request for counsel invokes a defendant’s constitutional right of counsel per se. All other requests become part of the “totality of the circumstances” to which the Court refers when determining whether the right to counsel has been invoked.

In Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, a juvenile was taken into custody for suspicion of murder. After a police officer fully advised the juvenile of his Miranda rights, the juvenile asked to see his probation officer. The police denied his request. Thereafter, the juvenile gave a statement implicating himself in the murder. The United States Supreme Court held that a request to see one’s probation officer is not analogous to a request for counsel. Rather, it is but one factor to be considered under the “totality of circumstances” when determining the voluntariness of a subsequent waiver of one’s rights. Fare, 442 U.S. at 722-725, 99 S.Ct. at 2570-2572, 61 L.Ed.2d at 210-212.

Although Fare would be analogous to the situation currently before this Court, we refuse to “march lock-step” with the United States Supreme Court where constitutional issues are concerned, even if the applicable State Constitution provisions are identical or nearly identical to those of the United States Constitution. We recognize that this pronouncement is contrary to previous criminal law decisions issued by this Court.

“Under the Fifth Amendment to the United States Constitution, and under the substantially identically worded Art. II, Section 25, 1972 Montana Constitution, no person may be compelled to testify against himself in a criminal proceeding. This Court has held the Montana constitutional guarantee of the privilege against self-incrimination affords no broader protection to an accused than does the Fifth Amendment. State v. Armstrong, [170 Mont. 256,] 552 P.2d 616. the opinions of the United States Supreme Court, therefore, delineate the maximum breadth of the privilege against self-incrimination in Montana.”

State v. Finley (1977), 173 Mont. 162, 164-165, 566 P.2d 1119, 1120-1121. See also, State v. Jackson (Mont. 1983), [206 Mont. 338,] 672 P.2d 255, 260, 40 St.Rep. 1698, 1704. And,

“This Court is not bound by decisions of the United States Supreme Court where independent grounds exist for reaching a contrary result. (Citations omitted) . . .

“Much has been written about whether a state court should grant greater rights than the United States Supreme Court where the State Constitutional language is identical to that in the Federal Constitution. In State v. Jackson (Mont. 1983), [206 Mont. 338,] 672 P.2d 255, 40 St.Rep. 1698, a divided court held that the Montana Constitutional guarantee against self-incrimination does not afford greater protection than that afforded under the Federal Constitution. However, in that instance the language in the Montana Constitution does not afford a basis for distinguishing self-incrimination rights from those articulated in the Federal Constitution. This Court has afforded greater rights in search and seizure cases because the Montana Constitution specifically recognizes the importance of the right of privacy.” State v. Solis (Mont. 1984), [214 Mont. 310,] 693 P.2d 518, 521, 41 St.Rep. 2493, 2496-2497.

However, we have forged ahead independent of the United States Supreme Court in civil matters which involve constitutional issues, even where our Constitutional provisions are identical or nearly identical to those of the United States Constitution.

“Art. II, Section 4, of our State Constitution provides in part that ‘[n]o person shall be denied the equal protection of the laws.’ Art. II, Section 4, 1972 Mont. Const. That provision of our State Constitution, though similar in wording to the last clause of the Fourteenth Amendment of the Federal constitution provides a separate ground on which rights of persons within this state may be founded, and under accepted principles of constitutional law such rights must be at least the same as and may be greater than rights founded on the federal clause. Thus, states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions. City and County of Denver v. Nielson (1977), 194 Colo. 407, 572 P.2d 484. Federal rights are considered minimal and a state constitution may be more demanding than the equivalent federal constitutional provision. Washakie Co. Sch. Dist. No. One v. Herschler (Wyo. 1980), 606 P.2d 310, cert. den. 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28. This is true even though our state constitutional language is substantially similar to the language of the Federal Constitution. Deras v. Myers (1975), 272 Or. 47, 535 P.2d 541, 549 n. 17.”

Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 500-501, 42 St.Rep. 1957, 1963-1964.

And,

“This court need not blindly follow the United States Supreme Court when deciding whether a Montana statute is constitutional pursuant to the Montana Constitution . . .

“We will not be bound by decisions of the United States Supreme Court where independent state grounds exist for developing heightened and expanded rights under our state constitution.”

Butte Community Union v. Lewis (Mont. 1986), [219 Mont. 426,] 712 P.2d 1309, 1313, 43 St.Rep. 65, 70.

Likewise, we see no reason not to pursue our own resolution of constitutional matters in criminal cases. Adequate and independent state grounds exist in our own Constitution and statutes to resolve this matter. We choose to rely solely on these adequate and independent grounds. “[A] state court always is responsible for the law of its state before deciding whether the state falls short of a national standard, so that no federal issue is properly reached when the state’s law protects the claimed right.” Linde, E. Pluribus Constitutional Theory and State Courts, 18 Ga.L.Rev. 165, 178 (1984).

“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law. (Citations omitted.)”

Sterling v. Cupp (1981), 290 Or. 611, 625 P.2d 123, 126.

This Court has previously recognized this principle.

“These state constitutional provisions, identical or nearly identical with like language in the United States Constitution and certainly identical in concept, each constitute separate and enforceable constitutional rights insofar as the jurisdiction of the State of Montana extends. Where state and federal constitutional provisions are identical, each is enforceable in its own respective sphere where those principles attach. See, Department of Mental Hygiene v. Kirchner (1965), 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321; Emergy v. State of Montana (1978), [177 Mont. 731, 580 P.2d 445.]”

Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129.

Thus, relying on our own Constitution and applicable law, we hold first that when defendant asked, immediately after having been read his rights, if he had the right to address somebody and subsequently stated that he would like to talk to somebody, he invoked his right to counsel under Art. II, Section 24 of the Montana Constitution. This right to counsel is not and should not be a right easily abridged. The implication of asking to speak to “someone” immediately after the reading of one’s rights is that “someone” refers to a legal advisor. Lay people are not learned in constitutional principle nor legal nicety. To require precise words be uttered would elevate form over substance.

Defendant’s subsequent conversation with Deputy Peterson did not result in the voluntary waiver of his right to counsel. Although defendant initiated that portion of the conversation wherein Peterson asked defendant who was driving the car, defendant’s comments were all part of one taped interview initiated by the deputy. The entire taped conversation lasted only seven minutes. Under these facts, we cannot find that defendant’s comments constituted a knowing and voluntary waiver of his right to counsel.

The taped conversation should not have been admitted during the State’s case-in-chief. However, because that conversation could have been used by the State to impeach defendant’s testimony at trial, we find the error in admitting the tape to be harmless. In the taped conversation, defendant stated that another individual riding in the car with him grabbed the steering wheel, forcing the car off the road. At trial, defendant testified that the car left the road because of a failure in the power steering. Although defendant has every right to take the stand and testify in his own defense, Art. II, Section 24, Mont. Const. (1972), once defendant testified to a story different than that upon which he previously relied, defendant “opened the door” to the admissibility of the illegally-obtained evidence for impeachment purposes. W. LaFave and J. Israel, Criminal Procedure Section 9.6 (1984).

The situation is analogous to that discussed in Rule 410, M.R. Evid. Rule 410 makes inadmissible pleas of guilty, later withdrawn, except for the purposes of impeachment.

“This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.”

We therefore find harmless any error to defendant arising out of the admission of defendant’s taped conversation during State’s casein-chief.

II

ADMISSIBILITY OF THE PHOTOGRAPHS

Trial courts have wide discretion in admitting photographs. State v. Warnick (1982), 202 Mont. 120, 127, 656 P.2d 190, 194.

“[P]hotographs stand on the same footing as diagrams, maps, plans, and the like, and, as a general rule, whenever relevant to describe a person, place, or thing, they are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case. (Citations omitted.)”

Fulton v. Chouteau County Farmers’ Co. (1934), 98 Mont. 48, 61-62, 37 P.2d 1025, 1029.

Here, the photographs were received solely for the purpose of describing the position of defendant’s vehicle. Although the pictures were taken under conditions substantially dissimilar to the conditions on December 8, 1983, the conditions are basically irrelevant to the purpose of the photographs and the dissimilarities were adequately explained to the jury. There was no abuse of discretion by the trial judge.

Ill

ADMISSIBILITY OF OFFICER PETERSON’S TESTIMONY WITH RESPECT TO POWER STEERING FAILURE

Appellant contends the trial judge erred in qualifying Officer Peterson as an expert and in allowing him to testify with respect to how a car reacts when its power steering mechanism fails. Officer Peterson was not qualified as an expert in auto mechanics pursuant to Rule 702, M.R.Evid. Rather, the trial judge referred to him as a “semi-expert.” (Tr. p. 363, 1. 18-20) The law of evidence does not recognize a “semi-expert.”

Although Officer Peterson was not qualified as an expert witness, his opinion was properly received under Rule 701, M.R.Evid. That rule states:

“Opinion testimony by lay witnesses.
“If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

Officer Peterson testified solely with respect to what, on the basis of his own experience, happens to a vehicle when its power steering fails. He did not offer an opinion as to what specifically happened to defendant’s vehicle. The testimony served primarily to clarify in the minds of the jurors, who might not have experienced a similar failure, what exactly happens when the power steering system of a car fails. The evidence certainly established that Officer Peterson was qualified to offer his lay opinion. He had worked on vehicles of all kinds for over ten years and had experienced power steering problems several times.

We find no error in the admission of Peterson’s opinion.

IV.

REFERENCE TO THE DECEASED DEPUTY SHERIFF

Appellant contends the State’s reference to Sergeant A1 Kimery, a deputy sheriff killed in the line of duty near the time of trial, resulted in a sympathetic bias on the part of the jury toward the State. The reference occurred while the state was laying a foundation for the inventory sheet.

Officer Kimery conducted the inventory of defendant’s car prior to its impoundment. Because of the nature of defendant’s defense, that he became drunk only after his car became stuck, the inventory sheet was relevant evidence. The difficulty of admitting the exhibit without referring to Officer Kimery was obvious and foreseeable. Defendant’s remedy was to file a motion in limine prior to the start of trial. Defendant failed to do so. We find no error.

V.

CLAUSTROPHOBIA

Defendant contends that he suffers from claustrophobia and that his sentence is therefore cruel and unusual punishment because it requires that he spend 15 days in jail. In support of his contention, defendant submitted a letter from Dr. James E. Gouaux which states in applicable part:

“I believe his main health problem related to being in jail relates to his claustrophobia which apparently has been going on for forty or so years and, if it is aggravated by being in a jail cell, might constitute ‘cruel punishment.’ ”

However, defendant offered no evidence in support of his claim that he does indeed suffer from claustrophobia. Dr. Gouaux makes no such diagnosis in his letter. In fact, he states only that the claustrophobia has “apparently” been going on for more than forty years. No other evidence was submitted by the defendant. Therefore, we find little evidence to support defendant’s claim that he suffers from claustrophobia. Further even if defendant so suffered, it would be but a factor to consider and would not foreclose incarceration. The sentence does not constitute cruel and unusual punishment.

VI.

ADEQUACY OF THE REASONS FOR THE SENTENCE

Finally, appellant contends his sentence is illegal because the trial judge failed to set forth his reasons for choosing to incarcerate defendant for 15 days. The sentencing judge is required to state his reasons for imposing incarceration on a defendant, even if the sentence is within the statutory limits for the offense. State v. Stumpf (1980), 187 Mont. 225, 609 P.2d 298. The trial judge has met this requirement.

The following rationale was provided for the sentence: “Defendant’s history of alcohol and driving offenses.” This statement, especially when coupled with the presentence report provided by defendant’s probation officer, is sufficient to inform a reviewing court and the Sentence Review Board as to why the sentence was imposed. Stumpf, 187 Mont. at 226, 227, 609 P.2d at 299. No more is required. The sentence is affirmed.

Affirmed on all counts.

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


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE HUNT, MR. JUSTICE MORRISON,

text:
    DAVID L. KEMP, Plaintiff and Appellant, v. BECHTEL CONSTRUCTION COMPANY; Bechtel Power Corporation; Christian Spring, Sielbach and Associates, a corporation, et al., Defendants and Respondents.
    No. 85-42.
    Submitted Jan. 23, 1986.
    Decided June 6, 1986.
    Rehearing Denied July 15, 1986.
    720 P.2d 270.

      Kelly & Halverson, P.C., Billings, Patrick Prindle argued, for plaintiff and appellant.
    Anderson, Brown, Gerbase, Cebull & Jones, James L. Jones argued, Billings, for Bechtel & Montana Power.
    Crowley, Haughey, Hanson, Toole & Dietrich, William O. Bronson argued, Billings for Christian, Spring, Sielbach & Associates.
    Sidney R. Thomas, Billings, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from District Court’s granting of summary judgment in favor of defendants in a personal injury case. Christian, Spring, Sielbach & Associates (Christian) have litigated this matter separate from the other defendants. Bechtel Construction Company was dismissed from the lawsuit by stipulation. Bechtel Power Corporation, Montana Power Company, Puget Sound Power and Light Company, Portland General Electric Company, Washington Water Power Company and Pacific Power and Light Company have litigated this matter together as one party which will be referred to collectively as “companies” except where the individual dealings of the entities are important.

We affirm the District Court on all issues.

The significant issue involving the companies is whether the companies, as general contractor and owner, had a nondelegable or reserved duty rendering them liable to an employee of a subcontractor. The issue we considered involving Christian is whether Christian’s status as project engineer encompassed a duty of safety to the other subcontractors. If there was no duty owed or breached, there can be no issues of material fact and granting of summary judgment was appropriate. Rennick v. Hoover (1980), 186 Mont. 167, 170, 606 P.2d 1079, 1081; see also Scott v. Robson (1979), 182 Mont. 528, 597 P.2d 1150.

The relevant facts concern the contractual arrangement of parties on a construction project and the details of a trenching accident. The contractual arrangements are prescribed by Bechtel’s contract with Montana Power Company (MPC), Christian’s contract with MPC, and COP Construction Company’s (COP) contract with Bechtel. Bechtel contracted with MPC for development and expansion of a townsite on some of MPC’s property at Colstrip, Montana. Christian was employed by MPC as project engineer. COP subsequently subcontracted with Bechtel for work which included putting in a sewer line for the townsite.

No provision in the contract between MPC and Bechtel addresses safety. Section GC-25 of COP’s contract with Bechtel sets out these parties’ safety duties:

“GC-25 SAFETY
“Subcontractor shall at all times conduct all operations under the Subcontract in a manner to avoid the risk of bodily harm to persons or risk of damage to any property. Subcontractor shall promptly take all precautions which are necessary and adequate against any conditions which involve a risk of bodily harm to persons or a risk of damage to any property. Subcontractor shall continuously inspect all work, materials and equipment to discover and determine any such conditions and shall be solely responsible for discovery, determination and correction of any such conditions.
“Contractor will establish a Project Safety Program. Subcontractor shall comply with all applicable laws, regulations and standards and the Project Safety Program. Subcontractor shall coordinate with other subcontractors on safety matters and shall promptly comply with any specific safety instructions or directions given to Subcontractor by Contractor. Subcontractor shall submit written Safety Program, with detail commensurate with the work to be performed, for Contractor’s review. Such review and approval shall not relieve Subcontractor of its responsibility for Safety, nor shall such approval be construed as limiting in any manner Subcontractor’s obligation to undertake any action which may be necessary or required to establish and maintain safe working conditions at the site. Subcontractor shall appoint a qualified Safety Representative who, unless otherwise provided herein, shall have no other duties. Such Safety Representative shall attend all project Safety meetings and participate fully in all activities outlined in the Project Safety Program.
“Subcontractor shall maintain accurate accident and injury reports and shall furnish Contractor a monthly summary of injuries and man-hours lost due to injuries.
“Subcontractor shall hold regular scheduled meetings to instruct its personnel on Safety practices and the requirements of the Project Safety Program. Subcontractor shall furnish Safety equipment and enforce the use of such equipment by its employees.”

Provisions 2.h and 2.i in the contract between Christian and Bechtel set out Christian’s responsibilities during the construction phase of the project:

“(2.h.) surveying and staking of construction layout; and
“(2.i) administration, coordination, observation and inspection of construction for the purposes of quality assurance and cost monitoring with the obligation of promptly informing the Owner [MPC] of all failures on the part of construction contractors to perform work in accordance with applicable plans and specifications or to accomplish work in accordance with contract schedules, as well as informing the Owner of apparent conflicts or omissions in the plans and specifications as they are discovered in the course of a contractor’s work.”

No provision in this contract addresses safety.

Plaintiff was employed by COP as a laborer at the Colstrip project on November 21, 1979. He was working with Ron Nikula, a backhoe operator, digging a ditch for placement of a sewer line for a trailer court. The ditch was dug in an area that had been previously trenched for other purposes. COP personnel supervised the operations. Nikula was digging the ditch with a backhoe. Kemp followed the backhoe with a shovel, cleaning the bottom of the ditch and checking to see that the ditch was being dug on grade. To check the grade, Kemp compared the level of a mark on his shovel handle with a laser beam set by a COP supervisor. There were also stakes set at regular intervals along the ditch with specifications by which the diggers could double check the laser.

Kemp and Nikula began digging about 8:30 a.m. They had dug 150 to 200 feet of 4V& -foot-deep ditch over flat ground when the grade of the terrain began to rise abruptly. The plans specified a ditch that never exceeded 4V2-feet-deep. However, no one from COP had changed the setting of the laser to adjust for the changing terrain as was their responsibility. The diggers continued to follow the laser so the trench deepened rapidly. By 10:30 a.m. the trench had been dug another 50 to 75 feet in length and was 9-feet deep. During this time the diggers realized that the trench was becoming dangerously deep. They also knew that a trench box (a “cage” that is put in trenches to protect digger from cave-ins) was available on the job site. However, they chose to continue digging without the trench box.

In the meantime, Nikula back-tracked over a portion of the ditch to dig it deeper to conform with the laser guide. Nikula believes this back-tracking may have fractured the dirt and contributed to the eventual cave-in. At the point where the backhoe had back-tracked, the dirt caved in, burying Kemp to his neck and causing the injury upon which this action is based.

Plaintiff sued the companies and Christian. Discovery was commenced by all the parties. The companies failed a motion for summary judgment in May 1984. Appellant filed a brief in opposition to the companies’ motion. Christian filed its motion for summary judgment in September 1984. No briefs or affidavits in opposition to Christian’s motion were filed. The District Court granted both motions for summary judgment without hearing in December 1984, and this appeal ensued.

Appellant contends the companies are liable to him based upon (1) nondelegable duties in the contract, (2) nondelegable duties arising from the inherently dangerous nature of or peculiar risk created by the work, (3) the control over the subcontractor’s work that contractor reserved in the subcontract, and (4) the “Safe Place to Work Statute,” Section 50-71-201, MCA. We will follow this general format in our discussion of the issues involving the companies. A discussion involving Christian’s duty will follow.

NONDELEGABLE DUTY BASED ON CONTRACT

Montana follows the general rule that “absent some form of control over the subcontractor’s method of operation, the general contractor and owner of the construction project are not liable for injuries to the subcontractor’s employees.” Shannon v. Howard S. Wright Construction Co. (1979), 181 Mont. 269, 275, 593 P.2d 438, 441. However, we recognized one of several exceptions to this general rule where nondelegable duties are created by contract. Stepanek v. Kober (Mont. 1981), 625 P.2d 51, 38 St.Rep. 385. Appellant argues that nondelegable duties were created by contract here so as to render the companies liable.

In Stepanek, the nondelegable duty which subjected the general contractor to liability to an employee of a subcontractor was created by a provision in the general contract between the general contractor and Yellowstone County. Specifically, that provision required the general contractor to be “responsible for initiating, maintaining, and supervising all safety precautions and programs” connected with construction. We held that this provision resulted in a duty that could not be delegated to the subcontractor by a provision in the subcontract which purports to shift safety responsibilities to the subcontractor. There is no similar provision in the general contract between MPC and Bechtel in the instant case. In fact, there is no safety provision in the general contract. Therefore, nondelegable duty based on contract does not apply.

NONDELEGABLE DUTY BASED ON INHERENTLY DANGEROUS NATURE OF THE WORK

A general contractor may also owe the employee of a subcontractor a nondelegable duty of safety where the work is “inherently dangerous.” See Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856. On this issue appellant requests us to adopt Sections 416 and 427, Restatement of Torts, 2d:

“Section 416. Work Dangerous in Absence of Special Precautions
“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
“Section 427. Negligence as to Danger Inherent in the Work
“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

We note Comment a to Section 416 in the Restatement, which states: “The two rules [Section 416 and Section 427] represent different forms of the same general rules . . .” We will thus consider their application together.

The Supreme Court of North Dakota has interpreted Section 416 and Section 427 with respect to a sewer trench dug to a depth of six feet in sandy soil. See Peterson v. City of Golden Valley, North Dakota (N.D.1981), 308 N.W.2d 550. In Peterson, an employee of a contractor with the city was killed when the banks of the trench in which he was working caved in. The trench was not dug according to Occupational Safety and Health Administration (OSHA) regulations or standard protective practices which call for sloping or use of a trench box whenever a trench exceeds five feet in depth. The court held that Section 416 and Section 427 did not operate to make the City vicariously liable for the omission of the contractor, because “this type of excavation when done with standard precautions, presents no extraordinary risk of caving in.” Peterson, 308 N.W.2d at 554. Peterson is on point with the instant case, and we adopt the North Dakota Supreme Court’s analysis.

In order for Section 416 to apply the work must present “a peculiar risk . . . unless special precautions are taken.” Section 427 is only applicable to work “involving a special danger . . . inherent in . . . the work.” Here, the type of trenching contemplated in the subcontract presented no peculiar risk or inherent danger. Rather, the risk or danger arose out of a failure to use standard precautions.

The OSHA regulations, project safety manual and deposition of the backhoe operator establish that sloping or using a trench box during trenching is standard procedure. Moreover, the subcontract specifically required the subcontractor to use standard precautions and follow regulations. The injury occurred after the diggers failed to use a trench box that they knew was available. Sections 416 and 427 are thus not applicable. We hold that the companies had no nondelegable duty under the inherent danger or peculiar risk exception to the nonliability rule.

CONTROL RESERVED IN THE SUBCONTRACT

Appellant also contends that the companies’ control over the subcontractor renders the companies liable. Section 414, Restatement of Torts, 2d, defines the duty of a general contractor or owner when control over the subcontractor is retained:

“Section 414. Negligence in Exercising Control Retained by Employer
“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

Thus, the general contractor’s duty is one of reasonable care. He is not vicariously liable for the subcontractor’s negligence under this control exception to nonliability of general contractors and owners.

Here, by the subcontract the companies were to establish a project safety program. However, no control over the day-to-day implementation of the safety program was reserved by the companies. The subcontract places the responsibility for on-site implementation of the safety program and job safety on the subcontractor, COP. Thus, the companies’ duty under Section 414 extended only to the establishment of the safety program. There is no evidence that this duty was breached.

The companies’ duty to exercise reasonable care in its establishment of the safety program is more specifically defined within the Montana Safe Place to Work Statute, Section 50-71-201, MCA, which states:

“Every employer shall furnish a place of employment which is safe for employees therein and shall furnish and use and require the use of such safety devices and safeguards and shall adopt and use such practices, means, methods, operations, and processes as are reasonably adequate to render the place of employment safe and shall do every other thing reasonably necessary to protect the life and safety of employees.”

In applying the statute to the instant case, we find that the companies had a duty to require COP to use safe procedures and to take reasonable steps to ensure those procedures were followed. Such a duty does not require a general contractor to constantly oversee each individual task of the subcontractor. Only constant supervision could have prevented this accident.

The record is clear and undisputed that the companies required COP to use safety precautions and comply with regulations. The companies utilized daily spot checks and monitored injury reports to make sure the construction was proceeding safely. We find that the companies complied with their duty of reasonable care.

In summary, appellant has failed to establish vicarious liability based on nondelegable duty or breach of a duty based on control. We therefore affirm the District Court’s order of summary judgment in favor of the companies.

PROJECT ENGINEER’S DUTY

We will now consider Christian’s summary judgment. Appellant, despite ample opportunity at the District Court level and here on appeal, has presented no legal arguments or factual evidence to counter the District Court’s conclusion that Christian had no duty of safety. Christian’s contract with MPC is in the record and does not address safety.

The District Court’s conclusion is supported by this Court’s decision in Wells v. Stanley J. Thill and Associates, Inc. (1969), 153 Mon. 28, 452 P.2d 1015. In Wells, the City of Belt contracted with Thill, an engineering company, to design a sewer project for the city. Thill’s contract with the city included only engineering and not safety responsibility. The city then contracted with Fedco, Inc., to construct the project. Wells was employed by Fedco. He was injured in a trench cave-in when safety precautions were not taken. We held that summary judgment in favor of Thill was proper because the duty of the engineer did not include safety and ran to the city and not other contractors.

Our holding regarding project engineers in Wells has not been altered by subsequent changes in Montana law on contractor duties to employees of subcontractors. See Stepanek, supra. We will not alter the holding now. Because the District Court's conclusion is supported by substantial evidence and Montana law, we affirm.

The District Court’s order granting summary judgment in favor of Christian and the companies is affirmed.

MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.

MR. JUSTICE HUNT,

concurring in part and dissenting in part:

I concur with the portion of the majority’s opinion dealing with nondelegable duties based in reserved control. However, for the reasons stated below I would reverse the District Court and remand for trial.

The majority’s construction of Sections 416 and 427, Restatement (Second) of Torts (1981) renders those sections aimless. The majority notes that OSHA regulations call for sloping or support to the sides of trenches to prevent the trench walls from caving in and causing injury to workers. From this the majority concludes that trench digging is not inherently dangerous because trench boxes or sloping usually prevent injury. If the precautions necessary to avoid injury were excluded from the scope of Sections 416 and 427, what would be left? On this kind of interpretation no employer of an independent contractor would ever be liable for any act of negligence in failing to take precautions against inherent risks. This reading of those sections strips them of any purpose. We may as well rely on the common law general rule that employers of independent contractors are not liable for injury caused by the contractors’ negligence, without need to analyze the exceptions to that general rule embodied in Sections 416 and 427.

The majority relies on the decision of the North Dakota Supreme Court in Peterson v. City of Golden Valley (N.D.1981). 308 N.W.2d 550, to ground its interpretation of those sections. However, that interpretation is contrary to the comments to the Restatement and to the interpretation given those sections by the majority of state courts, and by this Court in previous cases.

Section 408, Restatement (Second) of Torts states the general common law rule that the employer of an independent contractor is not liable for the harm caused by the independent contractor. The first of many departures from that rule was taken in Bower v. Peate (1876), 1 Q.B.D. 321. The exceptions to the rule have multiplied so that “[i]ndeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.” Shannon v. Wright (1977), 181 Mont. 269, 275, 593 P.2d 438, 441. Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co. (1937), 201 Minn. 500, 277 N.W. 226.

The Restatement notes that the exceptions fall into three categories. Sections 416 and 417 belong to the categories of “nondelegable duties of the employer, arising out of some relation toward the public or the particular plaintiíf;” and “[w]ork which is specially, peculiarly, or ‘inherently’ dangerous.” Restatement (Second) of Torts (1981), at 371, 394; Ulmen v. Schwieger (1932), 92 Mont. 331, 247, 12 P.2d 856, 859; A.M. Holter Co. v. Western Mtge. & Warranty Co. (1915), 51 Mont. 94, 99, 149 P. 489, 490. Chesapeake & Potomac Tel. v. Chesapeake Util. (Del.Super. 1981), 436 A.2d 314, 324, 325 n. 11.

Sections 416 and 427 involve duties which for policy reasons may not be delegated by the employer of independent contractors to' those contractors. Castro v. State (1981), 114 Cal.App.3d 503, 510, 170 Cal.Rptr. 734, 737; Heath v. Huth Engineers (1980), 279 Pa. Super. 90, 420 A.2d 758, 760; Smith v. Inter-County Telephone Co. (Mo.1977), 559 S.W.2d 518. “If the circumstances [of the case] fall within this rule a primary, nondelegable duty is imposed upon the employer . . .” Smith, 559 S.W.2d at 521 (Emphasis added.)

Attention must be turned to the language of those sections:

“Section 416. Work Dangerous in Absence of Special Precautions. One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”
“Section 427. Negligence as to Danger Inherent in the Work. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

Along with the majority, I note Comment a to Section 416 which states: “The two rules [Section 416 and Section 427] represent different forms of the same general rules ...” I will also consider them together, although I also note:

“The Rule stated in [Section 416] is more commonly stated and applied where the employer should anticipate the need for some specific precaution . . . [while] . . . Section 427 is more commonly applied where the danger involved in the work calls for a number of possible hazards, as in the case of blasting, or repainting carried on upon a scaffold above the highway.”

Chesapeake & Potomac Tel. v. Chesapeake Util. (Del.Super. 1981), 436 A.2d 314, 326, quoting Retatement (Second) of Torts (1981), at 395.

The terms “peculiar risk” and “special precautions” may lead the reader to believe the subject of these sections is an atypical or heightened risk which would necessitate extraordinary precautions. However the comments to the Restatement point out, “ ‘[p]eculiar’ does not mean that the risk must be one which is abnormal to the type of work done, or that it must mean an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself . . . arising out of the particular situation created, and calling for special precautions.” Restatement (Second) of Torts (1981), at 396, Comment b and 385-86, Comment b. See also Castro v. State (1981), 114 Cal.App.3d 503, 510-511, 170 Cal.Rptr. 734, 738; Griesel v. Dart Industries (1979), 23 Cal.3d 578, 153 Cal.Rptr. 213, 217, 591 P.2d 503, 507; Aceves v. Regal Pale Brew. Co. (1979), 24 Cal.3d 502, 156 Cal.Rptr. 41, 44, 595 P.2d 619, 622; Smith v. Inter-County Telephone Co. (Mo. 1977), 559 S.W.2d 518, 522.

The illustrations to Sections 416 and 427 clearly indicate “special precautions” means precautions specially deigned to counter the risk, not extraordinary precautions. Among those special precautions necessitated by the inherent risks of work situations portrayed in the illustrations are a fence around an excavation, shoring up a common wall between two houses when one house is being demolished, and restraining a paint bucket so that it does not fall from scaffolding. These precautions are ordinary in the sense that a reasonably cautious contractor would take them. What is “special” about them is that the particular situation arising out of the work itself calls for precautions specially designed to counter inherent risks.

There are two kinds of negligence by a contractor which will not be ascribed to the employer under Sections 416 and 427. First, a risk created by negligently undertaking a “normal, routine matter of customary human activity” is not a risk peculiar to, that is “arising out of the particular situations created” by, the work itself. Restatement (Second) of Torts (1981), at 385; Griesel v. Dart Industries, Inc. (1979), 23 Cal.3d 578, 153 Cal.Rptr. 213, 217, 591 P.2d at 507. Second, risks collateral, or foreign to the normal or contemplated risks of doing the work are not attributable to the employer of an independent contractor. Restatement (Second) of Torts (1981), at 414; Aceves v. Regal Pale Brew. Co. (1979), 156 Cal.Rptr. 41, 45, 595 P.2d at 623; Shope v. City of Billings (1929), 85 Mont. 302, 309, 278 P.826, 828. Therefore, the kind of risk left within the scope of Sections 416 and 427 is one that is inherent in the situation created by the work, “recognizfable] in advance as requiring special precautions.” Chesapeake and Potomac Tel.. (Del.Super. 1981), 436 A.2d at 330 (referring to the comments to Section 426, the “mirror rule” to Section 427).

Finally, there is one more section in the Restatement which deserves attention. Section 413 falls in the first category of exceptions to the general rule of employer nonliability. That category of exceptions are those relating to the “[n]egligence of the employer in selecting, instructing, or supervising the contractor.” Restatement (Second) of Torts (1981), at 371. Section 413 places a duty upon the employer to provide for the taking of precautions against the dangers involved in work entrusted to a contractor. The comments to that section indicate that one way the employer may provide for the taking of precautions is by requiring in the contract between the employer and contractor that such precautions be taken. While Section 413 is similar to Section 416, they are based on different policy grounds. Section 413 places a duty on the employer to exercise reasonable care in selecting a contractor and in drafting the contractual requirements placed on that contractor in his discharge of the work. Section 416 is based on the existence of a duty of care owed the public or the particular plaintiff. Castro v. State (1981), 114 Cal.App.3d 503, 510, 170 Cal.Rptr. 734, 737. Comment f to Section 413 points out the “fact that the contract under which work is done provides that the contractor shall take the necessary special precautions does not necessarily relieve the employer from liability, since he may be liable under the rule stated in Section 416.” Restatement (Second) of Torts (1981), at 386. Cf. Ulmen (1932), 92 Mont. 331, 347, 12 P.2d 856, 860. Comment c to Section 416 spells out the crucial difference in the two sections:

“Section 416 deals with the liability of one who employs a contractor to do such work, even though he stipulates in his contract or in a contract with another independent contractor that the precautions shall be taken, for bodily harm caused by the negligent failure of either contractor to take such precautions.”

Montana has long recognized that an employer may not “set in operation causes dangerous to the person and property of others . . . [and then] divest himself of the primary duty he owes to other members of the community by contracting with others for the performance of work, the necessary and probable result of which is injury to third persons.” A.M. Hotter Co. v. Western Mtge. & Warranty Co. (1915), 51 Mont. 94, 99, 149 P. 489, 490. See also Fagan v. Silver (1920), 57 Mont. 427, 432, 188 P. 900, 901. In such a case the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.” Shope, 85 Mont. at 309, 278 P.2d at 828.

In the case at hand, Montana Power Company contracted with Bechtel, who contracted with COP, for the work. The contract between Bechtel and COP did include safety provisions. Clearly then Montana Power Company and Bechtel are not liable under the rule of Section 413. However, they may not escape liability if the rules of Sections 416 or 427 apply. The majority opinion characterizes sloping or using a trench box when digging trench as “standard procedures.” I agree with that characterization as far as it goes. What the majority fails to see is that these standard procedures are specially designed to guard against dangers inherent in, or peculiar to, trenching.

In A.M. Hotter Co. v. Western Mtge. and Warranty Co. (1915), 51 Mont. 94, 149 P. 489, a contractor hired by Western Mortgage to repair a roof negligently left roofing materials atop the building. The wind blew these materials off the roof and caused damage to a nearby building. The jury found, and this Court affirmed, that Western Mortgage was liable for “failing to anticipate and guard against the probable consequences” of not taking precautions necessary to prevent the materials from being blown off the roof. A. M. Holter, 51 Mont. 94, 99, 149 P. 489, 491.

Similarly in Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856, the jury found work involving digging and cementing a culvert across a highway inherently dangerous. In that case the subcontractor negligently failed to place detour signs and barriers and Ulmén was injured by driving over the culvert at a speed reasonable for highway travel. In affirming the judgment against the general contractor who employed the negligent subcontractor this Court noted, “The erection and maintenance of adequate barriers and detour signs to warn the traveling public was the very thing that would prevent the work from being intrinsically dangerous.” Ulmen, 92 Mont, at 346, 12 P.2d at 859. It is my position that a jury could well find that the use of sloping or a trench box, as well as frequent checks on the laser marking the grade of the trench, were the very things that would have prevented the risks inherent in trench digging. See Barron v. United States (D. Hawaii 1979), 473 F.Supp. 1077, Aff’d. in relevant part; Barron v. United States (9th Cir.1981), 654 F.2d 644; Smith v. Inter-County Telephone Co. (Mo. 1977), 559 S.W.2d 518; Griesel v. Dart Industries, Inc. (1979), 23 Cal.3d 578, 153 Cal.Rptr. 213, 591 P.2d 503; Heath v. Huth Engineers, Inc. (1980), 279 Pa.Super.90, 420 A.2d 758 (all cases where trench-digging under the circumstances of each case was found to be inherently dangerous). Because it is a factual question whether particular work is inherently dangerous under the circumstances, summary judgment is inappropriate. Chesapeake, (Del.Super. 1981), 436 A.2d at 329; Castro (1981), 170 Cal.Rptr. 738; Smith (Mo. 1977), 559 S.W.2d at 524.

Yet there is one question of law which would have to be answered before the case could be remanded for trial. Case law prior to the adoption of the 1972 Montana Constitution held that nondelegable duties ran only to third parties and not to employees of a contractor or subcontractor. State ex rel. Great Falls Nat’l Bank v. District Court (1969), 154 Mont. 336, 463 P.2d 326. However, Art. II, Section 16 of the Montana Constitution guarantees full legal redress, with a workers’ compensation exception for the liability of fellow employees and immediate employers. In Stepanek v. Kober Constr. (Mont. 1981), 625 P.2d 51, 55, 38 St.Rep. 385, 396, we held that this constitutional provision mandated that a nondelegable duty based in contract did run from an employer of an independent contractor to that contractor’s employees. I can see no language in the Montana Constitution creating an exception to the right of full legal redress riding on a distinction between a nondelegable duty based on inherent risks and a nondelegable duty based in contract.

Therefore I would hold that the Montana Power Company and Bechtel have nondelegable duties running to the appellant Kemp if, on remand, the jury would find that inherent risks were present. Mydlarz v. Palmer /Duncan Construction Co. (Mont. 1984), [209 Mont. 325,] 682, P.2d 695, 707, 41 St.Rep. 738, 751 (Morrison, J. dissenting). I would remand for jury determination of whether inherent risks were present and whether a duty to take precautions was breached. This determination would necessarily include whether, on the facts involved, COP violated the Montana Safe Place to Work Statute, Section 50-71-201, MCA. Any violation of this statute would be attributable to Bechtel and Montana Power Company, if the jury also finds the trenching in previously trenched ground, conducted in the manner it was, inherently dangerous.

HONORABLE JOSEPH B. GARY, District Judge, sitting for MR. JUSTICE SHEEHY, joins in the dissent of MR. JUSTICE HUNT.

MR. JUSTICE MORRISON,

dissenting:

I concur in the very learned discussion of Mr. Justice Hunt contained in his dissent filed to the majority opinion. I add these comments.

Trenching in soft ground, as was done here, involves inherent risk unless certain precautions are taken. The fact that those precautions are necessary to eliminate the risk does not avoid application of “nondelegable duty”.

Trenching involves inherent risk imposing a nondelegable duty upon the owner and general contractor. The principals then become liable for the negligence of COP, including the foremen. Any negligence on the part of the plaintiff should be submitted to the jury under the comparative negligence statute.

The majority opinion, in light of Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856, would be bound to come to the same conclusion except the majority opinion finds trenching to not be “work dangerous absent special precautions.” Trenching is obviously dangerous in the absence of special precautions and that is why special precautions were to be taken. I am at a loss to understand how the majority comes to its conclusion except to follow the North Dakota Supreme Court. The Montana position as articulated by the majority runs contrary to the Restatement illustrations and the decisions of nearly every other jurisdiction which has treated trenching cases.

This case should be remanded for trial under an instruction which submits nondelegable duty as defined in Section 416, Restatement (Second) of Torts (1981). The jury might find that the plaintiff and COP’s foreman were equally negligent and equally responsible for the plaintiff’s injuries. The negligence of the foreman would become the negligence of Bechtel and Montana Power Company. Under these circumstances the plaintiffs recovery would be reduced by 50% but the plaintiff would still recover the remaining 50% of his total damages.

With these comments, I concur in the dissent of Mr. Justice Hunt.


author: PER CURIAM:

text:
    IN THE MATTER OF THE PROPOSED AMENDMENTS TO THE MONTANA RULES OF APPELLATE CIVIL PROCEDURE
   ORDER

PER CURIAM:

The Montana Supreme Court Advisory Commission on the Montana Rules of Civil Procedure and Rules of Appellate Civil Procedure has submitted the following proposals regarding amendments to the Rules of Appellate Civil Procedure to the Montana Supreme Court:

1. Preliminary Draft of Proposed Amendments, dated December 1984. Notice of its contents was given to Montana lawyers and Judges by the Supreme Court.

2. Proposed Amendment, dated July 1985; resulting from comments and suggestions received from bench and bar.

3. Proposed Amendments, dated April 1986.

The Court has examined and discussed the proposed Amendments on several occasions since submission of the same.

IT IS NOW ORDERED:

1. The Proposed Amendments to the Montana Rules of Appellate Civil Procedure, dated April 1986, submitted to this Court by the Montana Supreme Court Advisory Commission on the Montana Rules of Civil Procedure and Rules of Appellate Civil Procedure are hereby approved and adopted, effective on January 19, 1987. A copy of the same is attached hereto, and in accordance with Rule 53 herein adopted, said Rules shall be known as the Montana Rules of Appellate Procedure.

2. The Clerk is directed to give notice hereof by mailing a copy of this order, and a copy of the amended rules, to each District Judge of the State of Montana, to each Clerk of the District Court, to the State Bar of Montana at its office in Helena, Montana, to West Publishing Company, to the Montana State Reporter, and to Diana S. Dowling, Code Commissioner.

We respectfully request that a copy of this order and amended rules be published by the Montana Code Commissioner, and by West Publishing Company in the Pacific Reporter in accordance with its usual custom, and in the State Reporter. We express our thanks and appreciation to the above listed publishers for their aid in making the amended rules available to the profession and the courts.

DATED this 16th day of June, 1986.

s/J. A. Turnage, Chief Justice

John Conway Harrison, Justice

Frank B. Morrison, Jr., Justice

Fred J. Weber, Justice

John C. Sheehy, Justice

William E. Hunt, Sr., Justice

L. C. Gulbrandson, Justice


text:
    In the Matter of REVISION OF the MONTANA BAR EXAMINATION.
    No. 86-08.
    Submitted June 19, 1986.
    Decided June 20, 1986.
    720 P.2d 285.
    Leslie C. Halligan argued, (Law Student) pro se.
    Russell C. Fagg, pro se, Class Representative.
    Robert A. Poore argued, Chairman of the Commission Concerning Rules of Admission to the Practice of Law, Butte, Mike Greely, Atty. Gen., George Bousliman, State Bar of Montana, Helena.
    Gregory Murphy argued, for the Montana Board of Bar Examiners, Billings, Robert J. Muldoon, Jr., Chairman, National Conference of Bar Examiners, Boston, Mass., for amicus curiae.
   PER CURIAM:

The students of the 1986 graduating class of the University of Montana School of Law have petitioned this Court for the elimination of the Multistate Bar Examination from the Montana Bar Examination. The Court has original jurisdiction over this matter under its authority to establish rules for admission to the bar and the form and manner of the bar examination. Section 37-61-204, MCA; Art. 7, Sec. 2, 1972 Montana Constitution.

Pursuant to the order of this Court dated January 16, 1986, responses to the petition were filed by the Montana Board of Bar Examiners, the School of Law of the University of Montana, and the Commission Concerning Rules of Admission to the Practice of Law to the State of Montana. Oral argument was heard June 19, 1986.

This Court has concluded that the Multistate Bar Examination, which petitioners have requested be eliminated as a requirement for admission to the State Bar of Montana, provides a practical and useful means of testing the qualifications of applicants for admission to the State Bar of Montana.

Forty-six states use the Multistate Bar Examination in determining qualifications for admission to the practice of law in their respective jurisdictions. The Montana Board of Bar Examiners and the Commission Concerning Rules of Admission to the Practice of Law in the State of Montana have unanimously recommended retention of the Multistate Bar Examination in Montana.

The Court is concerned about the costs involved in legal education and in preparation for bar examinations. However, it would appear that the costs relating to the continued use of the Multistate Bar Examination would not be significantly reduced by its elimination. Additional costs would necessarily be incurred by expansion of the essay portion of the Bar Examination.

The petitioners have not established compelling reasons for elimination of the Multistate Bar Examination, and the petition is denied.

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

MR. JUSTICE MORRISON deeming himself disqualified, did not participate in this decision.


author: MR. JUSTICE HARRISON

text:
    LEONARD and BONNIE BOLES, Plaintiffs and Appellants, v. VERA LER, Defendant and Respondent.
    No. 85-390.
    Submitted on Briefs March 6, 1986.
    Decided June 6, 1986.
    719 P.2d 793.

      Lloyd E. Hartford, Billings, for plaintiffs and appellants.
    Phil Carter, Koch, Carter & Anciaux, Sidney, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by the contract purchasers of certain land located in Savage, Montana, from an order of the Richland County District Court granting summary judgment to the contract seller. The District Court held that the seller properly invoked the forfeiture provisions of the contract and consequently awarded her possession and ownership of the real property in question including the fixtures and personal property. In the alternative, the lower court allowed the purchasers 75 days to pay in full the balance due under the contract. From this judgment the purchasers appeal. We affirm.

The facts relevant to this appeal are basically undisputed by the parties. On September 22, 1978, Leonard Boles and Bonnie Boles (“Boles”) and Melvin Ler and Vera Ler (“Ler”) entered into a contract for the sale of real property (contract for deed) wherein the Boles purchased certain real property located in Savage, Montana, from the Lers. It should be noted that Melvin Ler is no longer a party to this action because he is deceased.

The Boles remained current on their monthly installment payments as called for under the contract through November of 1982. However, the December 1982 payment and the January and February 1983 payments were not paid on time as required by the contract. On February 8, 1983, the Boles paid to the escrow agent their monthly installment which was due on December 1, 1982. On or about February 11, 1983, the Boles paid to the escrow agent the monthly installment which was due on January 1, 1983. Finally, on or about February 16, 1983, the Boles paid to the escrow agent the monthly installment which was due on February 1, 1983.

On February 10, 1983, Ler, through her attorney of record, sent a notice of intention to cancel and determine the contract to the Boles at their home address. Ler thereafter reaffirmed her wish to cancel the contract by a letter dated February 24, 1983, sent to the Boles’ attorney of record.

On or about April 13, 1983, Ler returned all of the delinquent checks to the Boles uncashed. On April 25, 1983, the Boles initiated this lawsuit by filing their complaint. The complaint sought in part an order entitling the Boles to carry out the terms of the contract and an order enjoining Ler from foreclosing on the contract. In August of 1983, Ler filed her motion for summary judgment and the Boles filed their cross-motion for summary judgment. In October of 1983, the District Court entered its finding of fact, conclusions of law, and judgment wherein it ordered the Boles to either pay the accelerated unpaid purchase price of the real property plus interest, or, in the alternative, to return possession of the real property to Ler. The lower court also awarded Ler her reasonable attorney’s fees and by an order dated February 17, 1984, determined this amount to be $240. From these rulings of the lower court denying their cross-motion for summary judgment and awarding Ler her attorney’s fees, the Boles appealed to this Court.

By a decision dated November 14, 1984, this Court dismissed the Boles’ appeal without prejudice and remanded the cause to the District Court for further proceedings. Boles v. Ler (Mont. 1984), [213 Mont. 266,] 692 P.2d 1, 41 St.Rep. 2106. This Court held that the summary judgment entered against the Boles was not final because the attorney’s fees question actually still remained unanswered and because the Boles, if they desired to appeal before a final judgment on all the issues, were required to get the issue properly certified based upon Rule 54, M.R.Civ.P. The Boles failed to get the partial judgment certified, so the matter was not properly before this Court.

On November 27, 1984, Ler again filed her motion for summary judgment with the District Court. On June 27, 1985, the lower court entered its findings of fact, conclusions of law and judgment in favor of Ler awarding her possession and ownership of the real property in question, including the fixtures and personal property. In the alternative, the Boles were allowed 75 days to pay in full the accelerated balance due under the contract, including interest. The lower court also awarded Ler her attorney’s fees in the sum of $450. From this judgment the Boles appeal and present the following issues for review by this Court:

1. Whether the District Court erred in granting Ler’s motion for summary judgment.

a. Whether the escrow agent was the agent for Ler and, if so, whether the agent’s acceptance of the late payments constituted acceptance by the principal (Ler).

b. Whether Ler’s act of retention of the late payments remitted to her by the escrow agent resulted in a ratification of the agent’s acceptance of the late payments by Ler.

The Boles’ argument in this case essentially boils down to the assertion that Ler waived her right to cancel the contract because she “accepted” the late payments for January and February 1983 after she had sent her notice of default to the Boles. As Ler correctly points out, the Boles rely on three specific arguments in their brief to support their theory that Ler waived her right to cancel the contract. These arguments are:

“(1) Ler’s failure to notify the escrow agent that the contract had been terminated; (2) The ratification by Ler of the escrow agent’s acceptance of the late payments after the notice of default had been issued; (3) Ler’s failure to promptly return the funds.”

In her brief, Ler clearly and correctly rebuts these specific arguments raised by the Boles. First, with regard to the argument that Ler should have notified the escrow agent that the contract had been terminated, Ler contends that contacting the Boles directly by mail was the only proper action to take pursuant to the contract terms. Ler points out the terms of the contract only required that a notice of default be sent to the Boles in case of a contract forfeiture, which the Boles acknowledged receiving on February 11, 1983. Ler further points out she had absolutely no duty to notify the escrow agent that the contract had been terminated under the terms of the contract itself.

More important, Ler points out, the terms of the contract provided that should she issue a notice of default to the Boles, the Boles would then have 90 days to pay her the accelerated balance due under the contract. Ler argues that because the warranty deed and other documents were deposited with the escrow agent, and because all payments were to be made through the escrow agent, it was necessary for her to leave the escrow account open in case the Boles wanted to pay off the remaining balance on the contract. Ler asserts had she notified the escrow agent that the contract had been terminated, as the Boles suggest, she would have prematurely closed the escrow account, thus denying the Boles the opportunity to pay off the contract within the 90 day period. We agree.

Next, with regard to the Boles’ second and third arguments that Ler ratified the escrow agent’s acts of accepting the late pay-merits and that Ler failed to promptly return the payments, Ler once again directs this Court’s attention to the contract language which allowed the Boles 90 days to pay off the accelerated balance owing under the contract. Ler points out the contract does not state that should the Boles choose to pay off the contract balance within the 90 day period that they must pay the entire amount in one installment. Rather, Ler argues, the Boles had 90 days to pay off the balance owed under the contract in as many or as few installments as they wished. Realizing this situation, Ler argues she decided the Boles must be intending, by their continuance to make payments after they had received their notice of default, to pay off the contract balance and that by sending the payments when they did, they were attempting to reduce the amount of principal and interest that would be due at the end of the 90 day period. Ler argues she was always aware that if she did in fact cash the late payments sent to her by the Boles, this action might be interpreted as a waiver on her part. Therefore, Ler argues she decided to hold the late checks without cashing them until such time as it became apparent that the Boles were either going to pay off the remaining contract balance or that they were making the late payments only for the purpose of inducing her into waiving her right to cancel the contract. When it became apparent that the latter was the Boles’ true motive, Ler argues she returned the uncashed checks to the Boles immediately.

Ler further points out that the Boles, by continuing to make monthly payments after they had received their notice of default, were intentionally putting her in a “catch-22” situation. Ler argues if she had returned the late checks immediately, the Boles would have argued that she was not allowing them time to pay off the contract balance as they had a right to do under the contract. Further, Ler argues if she did not immediately return the late checks (as she did in this case), the Boles would then argue she had waived her right to cancel the contract. We agree with Ler that what the Boles failed to prove in establishing that Ler “accepted” the late payments, and thereby waived her right to cancel the contract, is that she “intended” to retain these payments.

The Boles correctly point this Court’s attention to the recent case of Bailey v. Lilly (Mont. 1983), [205 Mont. 35,] 667 P.2d 933, 40 St.Rep. 1079, to help resolve this matter. The Boles also correctly state that the Bailey decision stands for the proposition that where a seller (i.e. Ler) continues to accept monthly payments under a contract for deed after she has sent the purchaser (i.e. Boles) a notice of default, such acceptance constitutes a waiver by the seller of any right to cancel the contract. As the Court in Bailey succinctly stated:

“[B]aileys (sellers) waived any right to declare a default (of the contract) by continuing to accept Lillys’ (purchasers) monthly payments after the declaration of default.”

Bailey, 667 P.2d at 935.

In light of this general rule, the Boles recognize the crucial issue in the present case is whether Ler “accepted” their late payments thereby precluding her right to declare the contract in default.

We hold with regard to the still valid rule expressed in Bailey above, the critical inquiry is whether the seller (i.e. Ler) charged with having “accepted” late payments actually “intended” to retain those payments. For example, in the Bailey case, involving a situation analogous to the present case, it was clear that the sellers (Baileys) had the intention to retain the late payments submitted to them by the purchasers (Lillys) because the money from these payments was never returned to the Lilly family. Clearly this is not the situation in the present case. In the present case, Ler did not have the intention of retaining the late payments submitted to her by the Boles. This is evidenced by several actions performed by Ler. First, and most important, Ler returned all of the late checks submitted to her by the Boles on April 13,1983, uncashed. This Court believes, as did the District Court, that Ler obviously did not want to waive her right to cancel the contract because she did not cash these late payments. It appears Ler retained the late payments until it became evident that the Boles did not intend to pay off the contract balance within 90 days.

The second act evidencing Ler’s true intentions was that she, through her attorney of record, sent a letter to the Boles on February 24, 1983, reaffirming her desire to cancel the contract and also rejecting the Boles’ offer to reinstate the contract. This letter also notified the Boles that Ler either wanted the accelerated contract balance paid in full or the subject property returned to her.

In light of the above discussion, it is clear that Ler did not intend to waive her right to cancel the contract with the Boles. Therefore, the general rule expressed in the Bailey decision is not applicable to the present case.

The judgment of the District Court is affirmed.

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