author: MR. JUSTICE GULBRANDSON

text:
    In the Matter of ESTATE OF MERLE K. FLASTED, Deceased.
    No. 86-440.
    Submitted June 4, 1987.
    Decided Aug. 17, 1987.
    741 P.2d 750.

      Huntley & Eakin, Gene Huntley argued for Roberta Flasted, Baker, appellant.
    Peterson, Schofield & Leckie, K.D. Peterson argued for Everette Flasted, Billings, Dorsey & Whitney, Richard A. Brekke argued, for Estate and Personal Representative, Billings, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Everette Flasted appeals a Carter County District Court order insofar as that order awards certain assets from the estate of his late brother, Merle Flasted, to Merle’s widow, Roberta. Roberta cross-appeals raising four issues. The issues on appeal are: (1) whether the lower court properly ruled that Merle’s will’s bequest to Roberta of “any cash and savings that I may have at the time of my death” included (a) a $150,000 promissory note and the mortgage securing that note; (b) a diamond ring; (c) the partnership interest in Nuclear Ltd. and shares of corporate stock; (2) whether the court properly ruled that the “cash and savings” clause did not include decedent’s patronage and capital credits in certain cooperatives; (3) whether the court erred in refusing to award the homestead allowance and exempt property to Roberta; (4) whether the court erred in denying Roberta’s motion for judgment on the pleadings; (5) whether the court erred in relying upon parole evidence in construing an agreement between Everette and Roberta. We affirm.

We set forth only those facts necessary to the resolution of this appeal. In December 1974, Merle Flasted executed the will which gives rise to this dispute. That will provided, in pertinent part:

“[I] give to [my wife, Roberta Flasted,] any cash and savings that I may have at the time of my death. I also give to my wife one hundred head of cows from the herd that I own on my death.
“I also provide that. . . she may stay on the home at the ranch for a period of three (3) years after my death and may keep the . . . one hundred head of cows for that three year period on the ranch . . .
“I give, devise and bequeath to my brother, Everett Flasted, all the rest, residue and remainder of my estate, including but not limited to my ranch and any remaining livestock not previously bequeathed, and machinery.
“I hereby nominate and appoint my brother, Everett Flasted, as executor of this my Last Will and Testament . . .”

At the time of executing his will, Merle consulted with an attorney who made notes reflecting Merle’s testamentary wishes. The District Court summarized those notes as:

“[Merle] did not want the ranch to go to his wife or her family but wanted the ranch to stay in his family and go to his brother. He wanted his wife [and another devisee] to each receive 100 head of cows. All remaining livestock and machinery was to go to Everett.
“He stated that 100 cows and savings would take care of his wife. [The attorney’s] notes identify the savings as $40 — 50,000 in a joint account.”

In May 1983, Merle died and, upon her discovery of Merle’s will, Roberta arranged for she and Everette to meet with Gene Huntley, a Baker, Montana, attorney who had previously represented Merle. The stated purpose of the trip was to “read the will.” While traveling to meet with Mr. Huntley, Roberta and Everette discussed the fact that under the will she was to receive 100 cows. Merle did not have 100 cows at the time of his death so Everette suggested that Roberta receive an equivalent value of sheep.

Upon meeting with Mr. Huntley on May 19, 1983, discussions were held relevant to the estate’s assets. Mr. Huntley advised Roberta several times that she could contest the will. Ultimately, Mr. Huntley drafted an agreement which both Everette and Roberta signed. The agreement provided in part:

“[R]oberta Flasted was devised the cash and savings of the decedent . . . now Roberta Flasted has rights to the property of the estate by reason of being the widow of Merle . . . the parties desire to adjust their rights to reflect what they would believe would be the desires of the decedent. Now, Therefore, it is hereby agreed . . .
“Roberta will receive about 900 head of ewes, . . . the wool crop for the years 1982 and 1983 . . . the right to live in the home on the ranch ... for the rest of her natural life ... all of the vehicles belonging to the decedent at the time of his death except the pickup truck which was used for the ranch operation. Everett will receive . . . the rest, residue and remainder of the decedent’s estate, except the portion here agreed to go to Roberta ... In consideration of the foregoing Roberta Flasted gives up all of her rights to claim any share of the decedent’s estate other than the cash and savings of the decedent and that part of his estate specified in this agreement. Everett Flasted agrees to give up his claims to any part of the estate herein agreed to be conveyed to Roberta.” (Emphasis added.)

Shortly after Merle’s death, Roberta received approximately $209,000 from checking accounts, certificates of deposit, savings certificates and stock which she had previously held in joint tenancy with Merle. The District Court appointed Everette personal representative of the estate after his June 1983 application and admitted Merle’s will to informal probate. In May 1984, Roberta moved the court to grant her the homestead and family allowances provided for at Sections 72-2-801, and -803, MCA. In August 1984, the court denied Roberta both the homestead and family allowance on the basis that she had waived the same in the May 1983 agreement. At that time, the court also granted Roberta’s motion for supervised administration of the estate. Roberta moved under Rule 59(g), M.R.Civ.P., for the court to reconsider its denial of the homestead and family allowances. The court took no action on that motion.

In April 1986, the Carter County District Court held a bench trial to resolve the issues relative to the construction of the will and the May 1983 agreement. Roberta again asserted her right to the homestead allowance and, for the first time, claimed exempt property under Section 72-2-802, MCA. She did not pursue her claim for the family allowance. The court admitted parol evidence relative to the parties’ intent as to the agreement.

In July 1986, the court entered its findings and conclusions ruling that (1) as “cash and savings” under the will and agreement, Roberta would receive a $150,000 promissory note and mortgage, a diamond ring, stock shares and a partnership interest; (2) under that same clause, Roberta would not receive patronage and cooperative credits in Range Telephone, Southeast Electric and Farmer’s Cooperative; (3) Roberta could not successfully claim the homestead allowance because she had failed to timely appeal the court’s earlier adverse ruling on that issue; (4) under the May 1983 agreement, Roberta waived her rights to the homestead allowance and exempt property; and (5) Roberta would receive a car (but not ranch machinery, a snowmobile or an airplane) under the agreement clause which provided her with all of Merle’s vehicles except a pickup. The court relied on parol evidence as a basis for its fifth ruling immediately above. This appeal followed.

The first issue is the court’s interpretation of what constitutes “cash and savings” under the agreement and the will. The court found, and we agree, that “the words ‘cash and savings’ used in the agreement did not alter the will and should be construed in the context of their meaning in the will.” (Emphasis added.) This is clearly correct, given the agreement’s recitation that the parties desired to adjust their rights to reflect what they believed were the decedent’s desires.

Montana statutes relevant to the construction of wills include Section 72-11-302, MCA, which provides:

“The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected and that other can be ascertained.” and Section 72-11-304, MCA, which provides:
“(1) When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:
“(a) where a mistake or imperfection of the writing is put in issue by the pleadings;
“(b) where the validity of the agreement is the fact in dispute.
“(2) But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in 1-4-102, or to explain an extrinsic ambiguity or to establish illegality or fraud.
(3) “The term agreement includes deed and wills, as well as contracts between parties.”

We agree with the District Court that the circumstances surrounding the will must be looked at to construe the “cash and savings” clause. The court opted to construe that clause broadly, reasoning that Merle, at the time of the will and in subsequent years, caused money and property to be owned jointly with Roberta. Thus, he clearly intended to amply provide for his wife. The court also cited the attorney’s notes which indicated that Merle wanted the ranch to stay in his family. Given those notes, the court construed the residuary clause (which granted Everette the remainder of the estate “including but not limited to my ranch and any livestock and machinery”) to include all personal property connected with the ranch. The court concluded that the promissory note should pass to Roberta under the “cash and savings” clause given the broad interpretation of the clause and that the note was not ranch property. We agree with the court’s reasoning and affirm its decision on this point. We add that the loan underlying the promissory note was derived principally from certificates of deposit jointly owned by Roberta and Merle. At least before the loan, Merle intended the money now embodied in the promissory note to be Roberta’s.

Under the peculiar circumstances of this case, we also affirm the court’s decision that the diamond ring, the partnership interest and the corporate shares should pass to Roberta under the “cash and savings” clause. The circumstances indicate that this clause should be construed broadly.

We also agree that the patronage and capital credits in Southeast Electric Cooperative, Range Telephone Cooperative and Farmer’s Cooperative, should not pass to Roberta under the “cash and savings” clause. We agree that those were ranch assets connected with the ranch business. The circumstances indicate that Merle intended that ranch assets should pass to Everette.

The next issue is whether the court erred in refusing to award the homestead allowance and exempt property to Roberta. We agree with the District Court that Roberta waived her rights (to exempt property and the homestead allowance) through the May agreement which provided:

“[RJoberta has rights to the property of the estate by reason of being the widow of Merle ... In consideration of the foregoing Roberta Flasted gives up all her rights to claim any share of the decedent’s estate other than the cash and savings of the decedent and that part of his estate specified in this agreement.”

Neither the homestead allowance nor exempt property were specified by the agreement as going to Roberta. Roberta argues that at the time of the agreement she had no knowledge of the homestead allowance or of exempt property and, therefore, under Section 72-2-102, MCA, she could not have waived those rights. That statute provides:

“The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance or any of them may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.”

Roberta claims that because there was no fair disclosure she could not waive her rights. We hold that under the peculiar circumstances of this case Roberta did waive the homestead allowance and exempt property. Those circumstances are that (1) the agreement acknowledges that Roberta had rights to the property of the estate by reason of being the widow of Merle Flasted; (2) Mr. Huntley, an able and experienced attorney, was representing Roberta at the time of the agreement; (3) Mr. Huntley drafted the agreement; (4) Everette was not represented by Mr. Huntley or other counsel at the meeting where the agreement was executed; (5) there is no evidence that Everette, a rancher, was aware of the homestead allowance or of exempt property so that he could advise Roberta of her rights. Parenthetically, we note that the court found that Mr. Huntley was representing Roberta at the time of the agreement. Roberta has not raised that finding as an issue on appeal. Moreover, Section 28-3-206, MCA, provides that a contractual ambiguity should be interpreted against the party causing the uncertainty, Roberta in this case. We hold that Roberta did waive the rights in question. We need not address whether Roberta properly pursued the appeal of this issue.

The next issue is whether the court erred in denying Roberta’s motion for judgment on the pleadings. Roberta moved for judgment on the pleadings part-way through trial, after sixteen stipulations had been read into the record and two witnesses had testified for approximately 140 pages of transcript. Rule 12(c), M.R.Civ.P., provides that a party may move for judgment on the pleadings within such time as not to delay the trial. Given the tardiness of the motion, we uphold the court’s denial of the motion.

The last issue is whether the court erred in relying upon parol evidence to construe one provision of the May 1983 agreement. That clause provided that Roberta would receive “all of the vehicles belonging to the decedent at the time of his death except the pickup truck . . . .” The court, relying on parol evidence of the parties’ intent, held that Roberta would receive a Cadillac car but not ranch vehicles, a snowmobile or an airplane. Section 28-2-905, MCA, provides:

“(1) Whenever the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms. Therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing except in the following cases:
“(a) when a mistake or imperfection, of the writing is put in issue by the pleadings;
“(b) when the validity of the agreement is the fact in dispute.
“(2) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as described in 1-4-102, or other evidence to explain an extrinsic ambiguity or to establish illegality or fraud.
“(3) The term ‘agreement’, for the purposes of this section, includes deed and wills as well as contracts between parties.”

This Court has stated that:

“Ambiguity only exists when a contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations.” (Emphasis added.]

Martin v. Community Gas & Oil Co., Inc. (Mont. 1983), 205 Mont. 394, 668 P.2d 243, 245, 40 St.Rep. 1385, 1388. We hold that this agreement taken as a whole, is ambiguous. The agreement awards Roberta “all vehicles” (with the exception of a pickup), which phrase is in itself somewhat ambiguous.

The agreement also states that “the parties desire to adjust their rights to reflect what they would believe would be the desires of the decedent.” The decedent’s desires, as expressed in the will, were that Everette would receive the decedent’s machinery. Therefore, the agreement intends on the one hand that Roberta receive all vehicles with one exception, but on the other hand that Everette would receive the machinery. The District Court properly relied on parol evidence to interpret the ambiguous “all vehicles” clause. Roberta does not argue that there is insufficient evidence to support the court’s construction of that clause.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

license: Public Domain

text:
    HAROLD J. LASSABE, Claimant and Appellant, v. SIMMONS DRILLING, INC., Employer, and Argonaut Insurance Company, Defendant and Respondent.
    No. 86-459.
    Submitted June 2, 1987.
    Decided Aug. 17, 1987.
    Rehearing Denied Oct. 27, 1987.
    743 P.2d 568.

      MR. JUSTICE WEBER dissents with opinion, which MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON join.
    Cotter & Cotter, Michael W. Cotter argued, Great Falls, for claimant and appellant.
    Garlington, Lohn & Robinson, Robert E. Sheridan argued, Missoula, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Claimant appeals the order of the Workers’ Compensation Court denying him Workers’ Compensation benefits for injuries he received in an automobile accident. We reverse the order of the Workers’ Compensation Court and remand the case for further proceedings.

Claimant Harold J. Lassabe filed a petition with the Workers’ Compensation Court after Argonaut Insurance Company, the insurer for Simmons Drilling, Inc., denied liability for Lassabe’s injuries and refused to pay benefits to him. Prior to trial, the parties stipulated that the issue of liability on the part of Simmons Drilling would be litigated separately from the questions of disability benefits, costs and attorney fees. The sole issues submitted to the Workers’ Compensation Court at the hearing were:

1. Whether Lassabe was an employee of Simmons Drilling at the time of the automobile accident?

2. Whether Lassabe was within the course and scope of his employment for Simmons Drilling at the time of his accident?

Since the Workers’ Compensation Court found it could decide the case by a preponderance of probative credible evidence on the second issue, the court held that Lassabe was not in the course and scope of his employment when he was injured and did not reach the first issue. Lassabe has appealed the court’s judgment on the above two issues.

Simmons Drilling is a corporation involved in oil exploration and drilling operations. In January, 1982, Simmons Drilling had a drilling rig operating approximately 40 miles southwest of Newcastle, Wyoming. Drilling crews working on the rig had temporary living quarters at a motel in Newcastle. The crews worked a twenty-one day on, seven day off schedule. During their seven days off, the crews were free to come and go as they pleased.

Alvin Robinson was a driller for Simmons Drilling. In mid-January, 1982, he returned to his home in Kevin, Montana, during his seven days off. While he was there, he hired a crew to work for him on the Newcastle rig. Among those whom he contacted to work was Harold Lassabe. Robinson arranged for Lassabe and two other men to drive Robinson’s car from Kevin to Newcastle so the crew could begin work on the midnight tower January 24. On the morning of January 23, Robinson and his wife left for Newcastle, followed by the drilling crew in Robinson’s car. North of Vaughn, Montana, the car carrying the drilling crew was involved in an accident. Lassabe, who was in the front passenger seat, hit his head on the windshield and injured his neck, lower back and left side. Lassabe was taken to a hospital in Great Falls, and the remainder of the crew and the driller Robinson continued on to Newcastle. Robinson reported the accident to the rig manager when he arrived in Newcastle.

Montana law provides that an employee who receives an injury arising out of and in the course of his employment is entitled to disability benefits. Section 39-71-407, MCA. Before considering whether Lassabe was acting within the course and scope of employment, the basic premise of employment must be established. Guarascio v. Industrial Accident Bd. (1962), 140 Mont. 497, 499, 374 P.2d 84, 85. Whether or not Lassabe was an employee of Simmons Drilling at the time of the accident depends on whether or not there was an employment contract between the two parties. Id. at 499-500, 374 P.2d at 85. An employment contract may be expressed or implied, oral or written. Section 39-71-118(1](a), MCA.

The Workers’ Compensation Court found that Robinson was the driller employed by Simmons Drilling on the Newcastle project to supervise one of the crews. Robinson, as the driller, had the responsibility of rounding up his own crews. The court found that the “ultimate responsibility or authority to accept [a crew member] for employment” was with the rig manager or “tool pusher,” that position being filled, at the time of the accident, by a man named John Chamber. However, Chamber himself testified that in actual practice he never refused employment to any person Robinson brought out to the rig. Chamber further testified that in his twenty-five years of experience in the oilfield as a hand, driller, and tool pusher, the customary practice was for the tool pusher to hire the driller, and for the driller to hire his own crew. The driller was the direct supervisor of his crew, and arranged for all the transportation of the crew to the drilling locations.

Thus in the practice of oilfield hiring, when Robinson contacted Lassabe and the other crew members to come to work for him, and when he thereafter arranged for them to drive in his car and arrive in Newcastle the following day, such conduct by the driller would reasonably lead Lassabe to conclude he was employed. The three crew members had with them in the car at the time of the accident all of their workclothes, hardhats, boots and other equipment for working on the rig. Lassabe and another crew member testified it was their understanding they were to begin their shift upon arrival in Newcastle, after checking into the motel where the crew was housed. We hold that the above facts are sufficient to lead a reasonable person to believe he was employed. Such a reasonable belief as to employment is all that is needed to find a person is an employee. Guarascio, 140 Mont. at 500, 347 P.2d at 85.

We next turn to the issue of whether Lassabe was within the course and scope of his employment. The general rule is that injuries sustained by an employee while going to or from work are not compensable. Christian v. Nicor Drilling Co. (Okla. 1982), 653 P.2d 185, 186; Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 251, 570 P.2d 893, 894. A number of exceptions have arisen to this general rule. Some exceptions are applied when the employer provides transportation to the job site, or pays travel expenses, or whenever the nature of the work itself creates a necessity for travel. Christian v. Nicor Drilling Co., 653 P.2d at 186; Austin Drilling Co. v. Rice (Okla. App. 1980), 616 P.2d 446, 450 (citing Fluor Engineers & Contractors, Inc. v. Kessler (Okla. 1977), 561 P.2d 72, 74). The Oklahoma Supreme Court has enunciated the policy behind these exceptions:

“These exceptions rest on the law’s awareness that in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment. This is particularly true of the oil industry. When drilling sites are at locations remote from population centers, transportation is commonly provided by the employer for the mutual benefit of all parties.”

Christian v. Nicor Drilling Co., 653 P.2d at 186. (Footnotes omitted.)

In Guarascio, this Court stated, “an injury suffered by an employee while performing an act for the mutual benefit of the employer and employee is compensable, because when some advantage to the employer results from the employee’s conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment.” Guarascio, 140 Mont. at 501, 347 P.2d at 86. In this case, the benefit to the employer Simmons Drilling is to have a dependable crew ready so the rig can run continuously. If the driller failed to show up with a crew, the rig would have to shut down, or the previous crew would have to be kept on at overtime pay. In either case the company would lose money. It was Simmons Drilling’s policy to have the driller round up his own crew and transport them to the rig in time for the next shift. Alvin Robinson was in the course of doing just that when the accident occurred which injured Lassabe. Moreover, the single purpose of Lassabe’s trip was to go to the site of his employment in a transportation mode furnished by the driller, all to the benefit of the employer.

We hold that Lassabe, as an employee of Simmons Drilling, was within the course and scope of his employment at the time of the January 23 accident.

The judgment of the Workers’ Compensation Court is reversed, and the case is remanded for further proceedings.

MR. JUSTICES HARRISON, HUNT and McDONOUGH concur.

MR. JUSTICE WEBER,

dissenting:

I disagree with the majority conclusion that Mr. Lassabe was injured within the course and scope of his employment. The majority refers to Simmons Drilling’s policy of having the driller round up his own crew and transport them to the rig in time for the next shift. It is true that Simmons Drilling paid the driller mileage for using his own car to transport the drill crew from Newcastle, Wyoming, to the drill site, which was classed as a remote site. We must distinguish that from the present trip. Here, the driller was returning from his seven-day sabbatical during which he did not work. Simmons Drilling did not pay anything to the driller for driving his own car from Shelby, Montana, to Newcastle, Wyoming, a distance of several hundred miles.

The general rule with regard to payment of travel expense or furnishing of a vehicle by the employer is summarized in 1 Larson, Workmen’s Compensation Law, Sections 16.31 at 4-181 and 4-200 (1985):

“However, in the majority of cases involving a deliberate and substantial payment for the expense of travel, or the provision of an automobile under the employee’s control, the journey is held to be in the course of employment. This result is usually correct, because when the subject of transportation is singled out for special consideration it is normally because the transportation involves a considerable distance, and therefore qualifies under the rule herein suggested: that employment should be deemed to include travel when the travel itself is a substantial part of the service performed.”

The numerous cases upon which Larson bases his conclusion cover situations where the employer pays a deliberate and substantial payment for the expense of travel or provides an automobile. Neither of these conditions is present here. The present case does not fit any of the recognized exceptions to the general rule which establishes that travel to and from work is not covered by workers’ compensation. The effect of the majority opinion is to create a new exception which could be placed under the general heading of “general benefit to employer.”

As authority for its conclusion, the majority cites Guarascio. That case is significantly different from the present case because Mr. Guarascio was to receive compensation for the time spent traveling to Butte. Guarascio, 374 P.2d at 86. There is no comparable arrangement in the present case. Travel or travel time which is paid for by the employer is distinct from ordinary travel time by any employee from his place of residence to his place of work. Because Mr. Lassabe was not compensated in any way for his travel time from Shelby, Montana, to Newcastle, Wyoming, the majority’s opinion raises many new questions.

For example, what decision should be reached if the driller himself had been injured in the accident? It seems clear to me that we could not find this was in the course of his employment because no payment was made by the employer to the driller for either travel time or travel expense. Certainly Mr. Lassabe should not have a greater right than the driller, an already existing employee.

The majority points out that the single purpose of Mr. Lassabe’s trip was to go to the site of his employment in a transportation mode furnished by the driller, all for the benefit of the employer. The mode of transportation was furnished by the driller; it was not furnished by the employer. Standing alone, benefit to the employer has never been a sufficient basis to hold that an employee was within the course and scope of his employment.

I would affirm the determination that Mr. Lassabe was not within the course of his employment at the time of the accident.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON concur in the foregoing dissent.


author: MR. JUSTICE SHEEHY

text:
    GEORGE L. STEVENS and Gertrude L. Stevens, Plaintiffs and Respondents, v. MICHAEL G. ABBOTT, d/b/a Michael’s Italian Restaurant, and James McQuade, Defendants and Appellants.
    No. 86-480.
    Submitted on Briefs Feb. 13, 1987.
    Decided Aug. 17, 1987.
    740 P.2d 1136.
    Michael G. Abbott, pro se.

      Sullivan & Baldassin, William R. Baldassin, Missoula, for plaintiffs and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal of an award of damages for breach of contract from the District Court, Fourth Judicial District, County of Missoula. We affirm the judgment of the District Court.

Respondents George and Gertrude Stevens entered into a conditional sales agreement for the sale, of their Missoula restaurant, Rodoni’s, to Michael G. Abbott, one of the appellants. The other appellant, James McQuade, personally guaranteed Abbott’s performance under the agreement. Under the terms of the agreement, the Stevens agreed to transfer title to the business, the lease of the premises and all personal property of the restaurant to Abbott when he had completed his payments.

The purchase price of the business was the assumption by Abbott of the following obligations:

“1. Seven Thousand One Hundred Ninety-one and 88/100 Dollars ($7,191.88) by the Buyer assuming an existing loan to the Missoula Bank of Montana, loan #14734, a copy of said Note is attached hereto as Exhibit “B”. The installment loan has an unpaid principal balance of Seven Thousand Dollars ($7,000.00). It is understood by the Buyer that the loan will be extended ninety (90) days and thereafter a monthly payment schedule to be determined.
“2. Seventy-two Thousand Six Hundred Ninety-five Thousand [sic] and 08/100 Dollars ($72,695.08) by the Buyer assuming an existing installment loan to the Missoula Bank of Montana, in its entirety and agreeing to pay it according to its terms. The installment loan is designated as loan #14553, a copy of which is attached as Exhibit “C”, and is payable in monthly installments of One Thousand Three Hundred Dollars ($1,300.00). The Buyer shall be responsible for each monthly installment payment commencing with the date of this agreement, said installment payments to be made directly to the Missoula Bank of Montana.
“3. Twenty-three Thousand Nine Hundred Twelve Dollars ($23,912.00), together with interest thereon or so much thereof as remains from time to time unpaid, at the rate of Ten percent (10%) per annum, payable in installments of Three Hundred Sixty-one and 07/100 Dollars ($361.07) per month, pursuant to the terms and conditions of an Agreement dated the 1st day of April, 1981, wherein PAMCO, INC., is Seller, and George L. Stevens and Gertrude L. Stevens, are Buyers, a copy of which is attached as Exhibit “E”. (Missoula Bank of Montana Escrow No. 1214).
“4. Eleven Thousand Sixty Dollars ($11,060.00), at the rate of Ten percent (10%) interest per annum, payable in installments of One Hundred Sixty-five Dollars ($165.00) per month, pursuant to the terms and conditions of an Agreement dated the 1st day of April, 1981, wherein PAMCO, INC., is Seller, and George L. Stevens and Gertrude L. Stevens, are Buyers, a copy of which is attached as Exhibit “E”, see paragraph 3. (Missoula Bank of Montana Escrow No. 1214A).
“5. Four Thousand Seven Hundred Twenty-seven Dollars ($4,727.00) at the rate of eight percent (8%) per annum, in equal monthly installments of Two Hundred Dollars ($200.00) per month, principal and interest included, pursuant to the terms and conditions of an Agreement dated the 3rd day of November, 1978, by and between Daniel T. Burns, Assignor, and George L. Stevens and Gertrude L. Stevens, Assignee, which Agreement was subsequently assigned by Assignor to James Rose and Florence Rose, a copy of which is attached as Exhibit “F”. (Montana Bank of South Missoula Escrow No. NONE).
“6. Four Thousand Seven Hundred Forty-six Dollars ($4,746.00), at the rate of eight percent (8%) per annum, in equal monthly installments of Two Hundred Dollars ($200.00) per month, principal and interest included, pursuant to the terms and conditions of a Commission Agreement dated the 4th day of October, 1978, by and between Daniel T. Burns and George L. Stevens and Gertrude L. Stevens, a copy of which is attached as Exhibit “G”. (Montana Bank of South Missoula Escrow No._).
“7. Buyer’s assuming the accounts payable of Rodoni’s incurred by Sellers up to the full sum of Five Thousand Five Hundred Dollars ($5,500.00). Buyer shall account to Sellers for payment of all accounts payable. In the event such accounts exceed the sum of Five Thousand Five Hundred Dollars ($5,500.00), Buyer shall notify Sellers, and Sellers shall make payment and be responsible for any such accounts in excess of that amount.
“8. Buyer agrees to pay all escrow charges associated with each of the above accounts.”

Abbott was to make monthly payments of $2,061.07 to an escrow agent until the above obligations were paid.

Neither Abbott nor McQuade made the payments required on the above obligations. The Stevens served notices of default on both Abbott and McQuade in July, 1983, giving them 30 days to cure their default. Abbott failed to cure the default and McQuade refused to honor his guarantee in connection with the obligations. In November, 1983, the Stevens filed a complaint against Abbott and Mc-Quade for breach of contract and fraud, and sought compensatory and punitive damages.

Abbott and McQuade filed an answer and counterclaim, but never responded to the Stevens’ requests for discovery. In February, 1985, the Stevens filed a motion to compel discovery and impose sanctions. Abbott and McQuade were given until March 22, 1985 to respond to the Stevens’ interrogatories and requests for admission. When they failed to respond, the District Court held a hearing to impose sanctions upon them. As a result of the hearing, a default judgment was entered against Abbott and McQuade on the issue of liability, their counterclaims were dismissed, and the Stevens were awarded attorney fees. Abbott and McQuade appealed the default judgment to this Court in Stevens v. Abbott (Mont. 1986), [220 Mont. 61,] 712 P.2d 1347, 43 St.Rep. 173. We dismissed that appeal on the grounds that a default judgment entered on the issue of liability alone was not a final appealable order.

Trial was held on the issue of damages in April, 1986. By order of June 16, 1986, the District Court awarded judgment in favor of the Stevens in the amount of $174,201.41 plus interest at 10% per annum from the date of the judgment. Abbott and McQuade then filed a motion for new trial and for amendment of judgment, such motions being denied by the District Court on July 31, 1986. McQuade then filed a notice of appeal to this Court for himself pro se and on behalf of Michael G. Abbott. On April 16, 1987, we issued an order staying proceedings until Michael Abbott ratified the McQuade appeal and briefed his own case. Abbott has ratified McQuade’s notice of appeal by a brief filed May 14, 1987, and we now rule on whether the District Court’s award of damages was clearly in excess of those allowed by law.

The proper measure of damages for breach of contract is the amount which will compensate the aggrieved party for all detriment proximately caused by the breach, and all damages which would result from the breach in the ordinary course of things. Section 27-1-311, MCA. The purpose of the damages award in an action for breach of contract is to place the wronged party in as good a position as if the contract had been performed. Castillo v. Franks (Mont. 1984), [213 Mont. 232,] 690 P.2d 425, 430, 41 St.Rep. 2071, 2077.

In conclusions of law 7(a) through (s), the District Court listed the obligations which Abbott was to assume under the terms of the sales contract; the court also listed sums paid by the Stevens on outstanding accounts payable incurred by Abbott, such as power service, garbage service and advertising debts. These debts were clearly ascertainable and a direct result of Abbott’s breach of the sales contract. The court properly awarded the Stevens the amount spent in paying off the debts, as well as interest at 10% from the date of judgment. Section 25-9-205, MCA.

The District Court awarded the Stevens their attorney fees and costs incurred in prosecuting this lawsuit. The sales contract provided for an award of attorney fees to the party for any action to enforce the contract. Therefore the District Court was correct in awarding the Stevens their costs and attorney fees. The contract also provides for an award of attorney fees to the prevailing party on an appeal from a judgment from the District Court. We hold the Stevens are entitled to their costs and reasonable attorney fees on the appeal in this cause.

The judgment of the District Court is affirmed, and the case is remanded for determination of attorney fees and costs in taking this appeal. Let remittitur issue forthwith.

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


author: MR. JUSTICE McDONOUGH

text:
    RAY RASMUSSEN and Pauline Rasmussen, Plaintiffs and Appellants, v. LARRY C. BENNETT, Clifford Harden, Daniel P. James, Donald Whiting and Nelson Daves, Defendants and Respondents.
    No. 86-547.
    Submitted on Briefs June 11, 1987.
    Decided Aug. 17, 1987.
    741 P.2d 755.

      Hash, O’Brien & Bartlett, James C. Bartlett, Kalispell, for plaintiffs and appellants.
    Alexander & Baucus, John P. Paul, Great Falls, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiffs Ray and Pauline Rasmussen appeal the September 9, 1986, order of the Ninth Judicial District Court, Toole County, granting summary judgment in favor of defendants. We affirm.

Ray Rasmussen was a member of the Jehovah’s Witnesses Church. Ray and his wife, Violet, were associated with the Poison, Montana, congregation in 1967 and 1968. In the spring of 1968, Ray learned that Violet had committed adultery in 1967. In July of 1968, Ray forgave Violet for her act of adultery in accordance with Church doctrine.

In the spring of 1969, Ray learned that Violet had committed other acts of adultery prior to the time he forgave her. In 1969, it would appear the doctrine of Jehovah’s Witnesses, as determined by the Watchtower Bible and Tract Society, was that forgiveness of an act of adultery forgives all prior acts of adultery whether known or unknown. Such doctrine of Jehovah’s Witnesses further provides that a Church member is scripturally free to remarry only if his spouse commits adultery and is not forgiven. If a Church member remarries but is not scripturally free to do so he is considered to be living in adultery and may be expelled from the Church.

In June of 1969, Ray moved to Shelby and became associated with the Shelby congregation of Jehovah’s Witnesses. On July 8, 1969, Ray filed a petition for divorce in Liberty County, Montana, alleging mental cruelty on the part of Violet. During that same month, Ray met Pauline Ferris, and Ray began discussions with Church members regarding his scriptural freedom to remarry. On October 9, 1969, decree was entered by the District Court dissolving the marriage of Ray and Violet.

On October 10, 1969, defendant Donald Whiting, on behalf of the Poison congregation, wrote Ray a letter informing him there were doubts as to his scriptural freedom to remarry. Despite the doubts raised in the letter, Ray married Pauline on October 18, 1969. The marriage was performed by one of the defendants herein, Daniel James, who was a member of the Jehovah’s Witnesses Shelby congregational committee.

Following Ray’s remarriage, the Poison committee continued to investigate the “other” acts of adultery committed by Violet, Ray’s former wife. On December 30, 1969, Ray wrote the Poison committee informing them he had been told he was free to remarry and that there seemed to be a misunderstanding on the matter. In February of 1970, defendant Larry Bennett moved to Shelby to begin his duties as overseer of the Shelby congregation. Bennett questioned Ray’s scriptural freedom to remarry. The Shelby congregational committee wrote to the Watchtower Bible and Tract Society, the governing body of the Church, for guidance on the matter.

By letter dated March 12, 1970, the Watchtower Society responded to the inquiry and stated that Ray was not scripturally free to remarry and disfellowship appeared to be the proper course of action. On March 18, 1970, Ray and Pauline Rasmussen were disfellowshipped from the Jehovah’s Witnesses. At the next meeting of the Shelby congregation the congregation was informed that Ray and Pauline had been disfellowshipped for “conduct unbecoming Christians,” and that “We got the filth cleaned out of the congregation, now we will have God’s spirit.” Rasmussens were thereafter shunned by Church members in accordance with Church doctrine.

On November 26, 1971, Rasmussens filed a defamation suit alleging defendants had wrongfully disfellowshipped Rasmussens from the Jehovah’s Witnesses. The initial trial date of December 3, 1974, was vacated. The district judge was subsequently disqualified, plaintiffs’ original counsel withdrew, and the case did not proceed for several years. Defendants’ motion to dismiss for failure to prosecute was denied, and pre-trial conference finally was held on May 3, 1982.

The parties agreed to draft a letter to the Watchtower Society regarding the question: Would forgiveness of one act of adultery forgive all other acts of adultery, known or unknown, committed prior to the time of forgiveness? The Watchtower Society responded in the affirmative, that in 1969 the position of the Society was that an act of forgiveness for one act of adultery forgave all previous acts of adultery and the forgiving spouse was not scripturally free to remarry. Despite this response, Rasmussens proceeded with the litigation and requested a trial date.

Defendants filed a motion for summary judgment which was granted March 24, 1983. Rasmussens appealed and this Court reversed the summary judgment because the District Court granted the motion without having before it depositions of four defendants. Rasmussen v. Bennett (Mont. 1983), [207 Mont. 33,] 672 P.2d 278, 40 St.Rep. 1849. On remand the district judge recused himself from the case. Following assumption by the new district judge, defendants again moved for summary judgment. The District Court entered summary judgment in favor of defendants on September 9, 1986. Rasmussens appeal and raise the following issues:

(1) Whether defendants are liable under state law for libel and slander.

(2) Whether defendants can properly claim a privilege or a qualified privilege on religious grounds.

(3) Whether the defense of truth, based on religious grounds, is applicable.

(4) Whether there are material questions of fact precluding summary judgment.

Rasmussens contend defendants are liable under state law for defamation. The following statutes are applicable.

“27-1-802. Libel defined. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation.”
“27-1-803. Slander defined. Slander is a false and unprivileged publication other than libel which:
“(1) charges any person with crime or with having been indicted, convicted, or punished for crime;
“(2) imputes in him the present existence of an infectious, contagious, or loathsome disease;
“(3) tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit;
“(4) imputes to him impotence or want of chastity; or
“(5) by natural consequence causes actual damage.”
“27-1-804. What communications are privileged. A privileged publication is one made:
“(1) in the proper discharge of an official duty;
“(2) in any legislative or judicial proceeding or in any other official proceeding authorized by law;
“(3) in a communication without malice to a person interested therein by one who is also interested or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent or who is requested by the person interested to give the information;
“(4) by a fair and true report without malice for a judicial, legislative, or other public official proceeding or of anything said in the course thereof.”

Rasmussens assert that defendants’ statements that the Rasmussens were living in adultery and had been disfellowshipped for conduct unbecoming a Christian were defamatory. Defendants contend the communications were privileged and true according to Church doctrine.

First, we examine whether defendants’ communications were privileged. Whether or not the communication is privileged is a question for the court, not the jury, where the facts are not in dispute. Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580. Rasmussens claim the existence of factual disputes and that the District Court erred in finding defendants’ communications protected by privilege.

We find the defendants’ statements to be privileged under Section 27-1-804(3), MCA. It is firmly established that statements of church members made in the course of disciplinary or expulsion proceedings, in the absence of malice, are protected by a qualified privilege. 50 Am.Jur.2d, Libel and Slander, Section 209. There is no dispute here that the statements complained of were delivered at the Jehovah’s Witnesses congregational gathering in Shelby. The statements of disfellowship made by Churchleader Bennett were made to other Church members interested in the matter.

Rasmussens contend the congregational gathering included non-Church members thus the statements exceeded the scope of the privilege. We disagree. The incidental communication to non-Church members attending the service does not eliminate the privilege. See Redgate v. Roush (1900), 61 Kan. 480, 59 P. 1050. Having established a qualified privilege on the part of defendants, the burden is upon Rasmussens to show the privilege has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what was said. Law of Torts, 4th Ed., Prosser, Section 115, p. 796. Rasmusssens allege malice on the part of defendants. Rasmussens contend defendants told them it was permissible under Church doctrine for Rasmussens to remarry, but defendants later changed their minds.

Defendants point out that Rasmussen received a letter prior to his remarriage which expressed doubts as to his scriptural freedom to remarry. To prove malice, Rasmussens must show that defendants’ statements were made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Williams v. Pasma (1982), 202 Mont. 66, 656 P.2d 212; New York Times v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.

Rasmussens cite no evidence in this case which would raise a question of malice on the part of defendants. Defendants have asserted truth as a defense. Defendants disfellowshipped Rasmussens in accordance with Church doctrine. The Watchtower Society confirmed the fact that Ray Rasmussen was not scripturally free to remarry under the Jehovah’s Witnesses doctrine. Even though Rasmussens believe defendant Bennett was motivated by animosity toward Ray Rasmussen this does not raise a question of malice. Malice is defined in defamation actions as reckless disregard for the truth but such malice does not include hatred, personal spite, ill-will, or a desire to injure. Madison v. Yunker (1978), 180 Mont. 54, 67, 589 P.2d 126, 133.

Rasmussens contend defendants’ statements were defamatory under state law and this Court need not delve into the religious affairs of the Jehovah’s Witnesses. We disagree. Defendants’ statements were made within the congregation and were based on ecclesiastical doctrine. Defendants are guaranteed the free exercise of religion under the First Amendment of the United States Constitution and Article II, Section 5 of the Montana Constitution.

In Serbian Orthodox Diocese v. Milivojevich (1976), 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151, the Supreme Court found the Illinois Supreme Court had unconstitutionally interfered with the decisions of a hierarchical church in setting aside a bishop’s removal and defrockment as unconstitutional. The Court stated:

“Indeed, it is the essence of religious faith the ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. [Footnote omitted.]”

426 U.S. 714, 715, 96 S.Ct. 2382, 2383, 49 L.Ed.2d 166.

In the present case, this Court would be violating defendants’ right to free exercise of religion if we were to find defendants’ statements actionable under state defamation law. The record is clear that the hierarchical church, the Watchtower Society, determined that Ray Rasmussen was not scripturally free to remarry in 1969. It is not within this Court’s power to question the Watchtower Society’s determination.

We find summary judgment in favor of defendants to be proper. Even assuming each allegation by Rasmussens to be true, Rasmussens’ claim is barred by the free exercise of religion clause found in both the Federal Constitution and Montana Constitution.

The District Court is affirmed.

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


text:
    ROBERT H. BURKLAND and Betty M. Burkland, Plaintiffs and Appellants, v. ELECTRONIC REALTY ASSOCIATES, INC., Defendants and Respondents.
    No. 86-562.
    Submitted June 17, 1987.
    Decided Aug. 17, 1987.
    740 P.2d 1142.
    Nye & Meyer, Joan Meyer Nye argued, Billings, for plaintiffs and appellants.
    Crowley law Firm, William O. Bronson argued, Billings, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiffs Robert and Betty Burkland appeal the August 28, 1986, order of the Thirteenth Judicial District Court, County of Yellowstone, granting summary judgment in favor of defendant Electronic Realty Associates, Inc. We reverse.

The basic issue in this case is whether the local franchisee, ERA Hannah, may be considered an ostensible agent of the franchisor, Electronic Realty Associates, Inc. (ERA, Inc.) Plaintiffs Robert and Betty Burkland purchased a home from defendants Scott and Carmen Mullen. At that time, Scott Mullen was an agent for ERA Hannah Real Estate in Billings, Montana. The sale of the Mullen home was transacted through ERA Hannah with Zane Johnson acting as the real estate broker.

After moving in, Burklands became sick from drinking the tap water which was supplied by a well on the property. The heating system broke down and had to be supplemented with wood heat. Burklands filed suit against Scott and Carmen Mullen, Elwood, Randall and Thomas Hannah d/b/a/ ERA Hannah Real Estate; and ERA, Inc. The suit alleged fraud, breach of fiduciary duty, breach of the duty of good faith and fair dealing, realtor malpractice and breach of implied warranty.

ERA, Inc. moved for summary judgment contending that there was no evidence of an agency relationship with ERA Hannah and that ERA, Inc. could not be held responsible for ERA Hannah’s actions as a matter of law. The affidavit of ERA, Inc. President E.R. Gresham included the following: 1) ERA, Inc. has no ownership interest in ERA Hannah; 2) ERA, Inc. exercises no control over the management and operations of ERA Hannah; 3) ERA Hannah is independently owned and operated and must display its licensed name ERA “Hannah” in all advertising; 4) ERA, Inc. does not share in the profits or losses of ERA Hannah but merely charges fixed fees for use of the ERA trademark and national marketing services; 5) ERA, Inc. is not a licensed real estate broker in Montana and had nothing to do with the sale to Burklands.

Burklands opposed summary judgment contending ERA Hannah’s relationship with ERA, Inc. raised questions of material fact regarding the existence of actual or apparent agency. Burklands argued that ERA, Inc. requires ERA Hannah to prominently display the national logo on all advertising and materials and that they had relied on the national reputation of ERA, Inc. in purchasing the Mullen’s home. Burklands did not notice the “independently owned and operated” disclaimer in ERA Hannah’s listing of the Mullen home nor was it explained to them.

The District Court entered summary judgment in favor of ERA, Inc. The court found no actual or apparent agency between ERA Hannah and ERA, Inc. The court determined that Burklands did not produce evidence in support of their claim that they reasonably believed ERA Hannah was an agent of ERA, Inc.

Burklands appeal and raise the following issue: Whether the District Court erred in finding no genuine issue of material fact as to the existence of ostensible agency between ERA Hannah and ERA, Inc.?

Section 28-10-103, MCA, provides:

“An agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when the principal intentionally or by want of ordinary care causes a third person to believe another to be his agent who is not really employed by him.”

Burklands contend they relied on ERA, Inc.’s reputation in deciding to purchase the Mullen home. Betty Burkland’s affidavit states in part:

“3. I responded to Scott Mullen’s ad on a house to rent. Mullen was an agent for ERA Hannah, and he persuaded us to buy their house right away. In making that investment we had faith in what the ERA Hannah representatives said, partly because we had seen TV advertising for ERA realties. We saw the big “ERA” name and ERA logo on ERA Hannah materials given to us. We trusted and relied on the reputation of that national name and company.
“4. No Defendant ever explained to me that there was a difference or separation between ERA Hannah and the ERA I had seen advertised on TV.
“5. I never noticed any small print in any advertisement stating that ERA was separate from ERA Hannah. No one ever called my attention to the print at any time. I was under the impression that ERA Hannah was responsible to or controlled by the ERA company I had seen advertised on TV.”

The membership agreement between ERA, Inc. and ERA Hannah contains goals for shared identity. ERA Hannah is required to prominently display the ERA, Inc. trademark, yet ERA Hannah must also hold itself out to be independently owned and operated. The District Court found that the disclaimer informed third parties of the franchise relationship, and that Burklands’ failure to read the disclaimer made their reliance on ERA, Inc.’s reputation unreasonable. Specifically, the court stated, “This evidence may prove that plaintiffs relied on ERA’s alleged ‘holding out’, but it does not prove that their reliance was reasonable.”

Our question is whether the district judge properly decided that the conduct of the plaintiffs was unreasonable in their failure to read the disclaimer and in their reliance upon ERA. The statements of contention of the parties give rise that an issue of fact does exist. ERA, Inc. contends, however, that its disclaimer was sufficient and that case law in Montana and other jurisdictions clearly shows this issue was properly determined by summary judgment.

In Elkins v. Husky Oil Company (1969), 153 Mont. 159, 455 P.2d 329, a fire at a Husky stated in Laurel caused the death of a patron. Husky Oil Company was named as a defendant in the wrongful death action under a theory of ostensible agency. Plaintiff raised the issue of ostensible agency based on the Husky signs at the station and the language on the back of a Richfield Oil Company credit card stating, “This card will also be honored at service stations of the following companies . . . Husky Oil Co.” This Court found these facts insufficient to raise a jury question as to ostensible agency. 153 Mont. at 168, 455 P.2d 333.

Burklands cite City of Delta Junction v. Mack Trucks, Inc. (Alaska 1983), 670 P.2d 1128, as persuasive authority. In City of Delta Junction, the plaintiff City purchased a customized fire truck from Alaska Mack, Inc., which was unsuitable for its intended use. In a suit for breach of contract, Mack Trucks, Inc., was named as a defendant under a theory of apparent agency. Alaska Mack was listed in various directories under the heading, “Mack Trucks” and its advertising made prominent use of the Mack logo. Alaska Mack displayed Mack truck brochures at its dealership, and did not post signs indicating its independent ownership. City officials testified that they believed they were dealing with Mack, Inc. and relied on Mack, Inc.’s reputation in entering the deal with Alaska Mack. The Alaska court held that the City’s reliance on the Mack tradename raised a jury question as to apparent agency between Alaska Mack and Mack, Inc. 670 P.2d at 1131.

In the present case, the affidavits of the plaintiffs establish that they did not read any disclaimer by ERA, Inc., they relied on the national TV advertising they had seen of ERA, the reputation of ERA, Inc., and they believed they were dealing with ERA, Inc., at the time of purchasing the home. The affidavit of ERA, Inc., established without contradiction that ERA, Inc., had no control over the selling real estate agent, that it did not share in the profits of that agent, and that it was not a licensed real estate agent in Montana and actually had nothing to do with the sale to the plaintiffs. The listing of the home in question contained the “independently owned and operated” disclaimer. Are these facts sufficient to raise a genuine issue of material fact as to the existence of ostensible agency? Rule 56(c), M.R.Civ.P., in pertinent part provides that a summary judgment shall be rendered if “there is no genuine issue as to any material fact.” We conclude that these facts do constitute a genuine issue of material fact. A key material fact is whether the disclaimer was sufficient to make the plaintiffs’ reliance on ERA, Inc., unreasonable. It is an issue to be determined by a trier of fact and, under these circumstances, is not appropriate for determination by the District Court. Summary judgment was not proper.

The District Court is reversed and this matter is remanded for proceedings consistent with this opinion.

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


text:
    In re the Matter of the PATERNITY OF C.G., a minor. STEVE WEBER, Petitioner and Respondent, v. PAUL VAN DE KOP, Intervenor and Appellant.
    No. 86-573.
    Submitted on Briefs April 16, 1987.
    Decided Aug. 17, 1987.
    740 P.2d 1139.

      Matteucci & Falcon, Daniel L. Falcon, Great Falls, for intervenor and appellant.
    Lynch & Best, Elizabeth A. Best, Great Falls, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Paul Van De Kop appeals a Teton County District Court order awarding the custody of C.G., an infant, to his natural father, Steve Weber. We restate appellant’s issues as (1) whether the District Court applied the correct test in determining the question of custody; and (2) whether the court properly concluded that the best interest of the child would be served by awarding custody to the natural father. We affirm.

In June 1985, R.G. gave birth to a son, C.G. Tragically, R.G. died of cancer in July 1986. Both Steve Weber and Paul Van De Kop were involved with R.G. prior to the birth of C.G.

Steve Weber met R.G. sometime in 1983. They considered marriage but eventually, in October 1984, Steve broke off the relationship because of R.G.’s alleged relationships with two other men, one of whom was appellant Paul Van De Kop. Steve is approximately twenty-nine years old, single and has a residence in Fort Collins, Colorado. He works as a surveyor for Western Geophysical Company and is required to travel extensively in his job. In late 1984, Steve learned that R.G. was pregnant but he refused to marry her despite her apparent desire to do so.

In November 1984, appellant and R.G. became close companions. R.G. told Paul, and he believed, that he was the father of the child. In February 1985, R.G. advised Steve that she had cancer. They stayed in almost daily contact and Steve accompanied R.G. to the Mayo Clinic in Rochester, Minnesota for treatment. In the spring of 1985, they again lived together for a time but Steve eventually left, apparently to return to work.

After giving birth to C.G. in June 1985, R.G. had major surgery for cancer in August 1985. When the cancer reoccurred in November 1985, Paul quit his job and moved into R.G.’s home to care for her and the child. Paul is thirty-two years old, single, has worked in the oilfield and lives in the Cut Bank, Montana area.

When R.G. died in July 1986, Paul knew that the child’s birth certificate listed no one as C.G.’s father. Shortly after R.G.’s death, Paul learned that in January 1986 Steve had filed a petition for determination of paternity with the Teton County District Court. In August 1986, Paul moved to intervene in the paternity suit. He has lived with and taken care of the child since R.G.’s death. Each of the two men apparently sincerely believed that he was the child’s father.

In November 1986, the District Court held a hearing on the custody of the child. Paternity of the child was not at issue at the hearing, appellant Van De Kop having conceded that blood tests conclusively proved that he was not the father. The District Court later found that Steve Weber was the natural father and that finding has not been challenged on appeal. The court heard extensive evidence as to the character and parenting skills of each man. Andree Deligdisch, a clinical social worker, testified that Paul had an excellent relationship with the infant. Monte Kuka, a clinical psychologist, performed a psychological evaluation of Paul. Kuka testified that Paul was very good at taking care of C.G. and that Paul’s and C.G.’s relationship was very close and meaningful.

Patty Jacobs, a social worker for Teton County, prepared a Home and Family Assessment of Steve Weber pursuant to court order. Jacobs met with Weber several times and she testified that she saw no reason why he would not be a fit and able parent. Jacobs also testified that she had examined a psychological evaluation of Weber which revealed no mental problems that would interfere with his ability to be a parent.

Steve Weber’s brother, Jim, with whom Steve lives, testified that Steve takes his parental obligations very seriously and that Steve is an upstanding, decent person. Steve’s father testified in a like vein.

Steve Weber testified at length and stated, among other things, that he attempted to voluntarily pay child support to R.G. but that she returned most of it. Steve also stated that, if he receives custody, he intends to take six months to a year off his job and devote that time to C.G. and he intends to secure employment permitting him to stay at home more than his current job allows.

The District Court heard other evidence criticizing, or tending to denigrate, Steve Weber’s character and parenting abilities. The court apparently rejected such evidence because, in December 1986, it awarded custody of the child to Steve Weber. Paul Van De Kop appeals.

The first issue is whether the court applied the correct test in determining the issue of custody. Appellant correctly points out that the court relied in part upon an inappropriate case, Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 575, in reaching its decision. The Doney case arose from a custody battle between the natural father and the natural mother’s sister. The natural father had granted temporary custody of the children to the sister after the natural mother’s death. This Court addressed the Montana statutes then in effect and stated:

“A judicial hearing and finding of dependency and neglect under Title 10, Chapter 13, R.C.M. 1947, or judicial finding of willful abandonment or willful nonsupport under Section 61-205, R.C.M. 1947, are the exclusive means by which a natural parent may be involuntarily deprived of custody of his children. In the absence of such showing, the natural parent is legally entitled to the custody of his minor children. Section 61-105, R.C.M. 1947. (Emphasis added.)”

Doney, 570 P.2d at 577. The stringent standard set forth in Doney has been substantially modified in some circumstances, as pointed out in Brost v. Glasgow (Mont. 1982), 200 Mont. 194, 651 P.2d 32, 39 St.Rep. 1679. Section 40-4-221, MCA, was enacted after the Doney case and it changes the test to be used to determine custody in this situation. The Brost case involved a custody fight between the natural father and the maternal grandmother. The lower court granted custody to the grandmother and we held,

“that in custody hearings resulting after the death of the custodial parent as provided for in Section 40-4-221, MCA, it is not error for the District Court to apply the ‘best interest of the child’ test in determining custody between the natural father and the maternal grandmother.”

Brost, 651 P.2d at 34. The natural father in Brost cited the Doney case in arguing “that if a non-parent wants to acquire custody, he must proceed under far more stringent standards for intervention.” Brost, 651 P.2d at 34. We refused to require those stricter standards.

Appellant intervened in this case under Section 40-4-221, MCA, which, as in Brost, provides for custody hearings after the custodial parent dies. That statute provides:

“(1) Upon the death of a parent granted custody of a child, custody shall pass to the noncustodial parent unless one or more parties named in Subsection (2) request a custody hearing. The noncustodial parent shall be a party in any proceeding brought under this section.
“(2) Upon the death of a parent granted custody of a child, any of the following parties may request a custody hearing and seek custody of the child:
“(a) the noncustodial natural parent;
“(b) the surviving spouse of the deceased custodial parent;
“(c) a person nominated by the will of the deceased custodial parent;
“(d) any person nominated by the child if the child is at least 12 years old;
“(e) any other person if that person has actual physical control over the child;
“(f) any other party whom, upon showing of good cause, the court permits to intervene as an interested party.
“(3) The hearing and determination of custody shall be governed by this part. [Emphasis added.]”

Appellant qualified as an intervenor under sub (e), as a person having actual physical control of the child. The last line of that statute is dispositive of this issue. “[T]his part,” as mentioned in the statute, is Part 2 of Chapter 4 of Title 40, MCA, and it provides, at Section 40-4-212, MCA, only one test for custody where the custodial parent dies and there is an intervenor under the statute. Section 40-4-212, MCA, provides:

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
“(1) the wishes of the child’s paretit or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community; and
“(5) the mental and physical health of all individuals involved.”

The transcript and court order show that the court did not solely consider the best interest of the child test. The court also cited the Doney decision and apparently felt that appellant, to gain custody, must show that the natural father was unfit. However, the court went on to apply the best interest of the child test and stated:

“The Court considering all factors such as the interaction and interrelationship of [C.G.] with his natural parent, his siblings, and others who have already significantly affected his life, finds as a matter of law, that it is in the best interests of [C.G.] to be with his natural father, there being no substantial proof that he would be unfit. Further, to delay [C.G.’s] transfer for an indefinite period of time to the custody of his natural father perhaps would not be in [C.G.’s] best interests.”

Thus, while initially the court applied the wrong standard (from Doney), ultimately the court applied the best interest of the child test. Therefore, we hold that the court did not commit reversible error in determining custody of the child.

The second issue is whether the court properly awarded custody to the father under the best interest of the child test. The standard of review is clear.

“The responsibility of deciding custody is a delicate one which is lodged with the district court. The judge hearing oral testimony in such a controversy has a superior advantage in determining the same, and his decision ought not to be disturbed except on a clear showing of abuse of discretion. [Citing cases.]”

In Re Marriage of Nalivka (Mont. 1986), [222 Mont. 84,] 720 P.2d 683, 686, 43 St.Rep. 1079, 1083, quoting In Re Marriage of Obergfell (Mont. 1985) [218 Mont. 83,] 708 P.2d 561, 563, 42 St. Rep. 1414, 1417. We do not find that the court abused its discretion in awarding custody to the natural father. The court made several findings establishing the apparent good character and good intentions of respondent. The court concluded that it would be in the child’s best interest to be with his natural father. That conclusion is not impermissible. The Commissioners’ Note to Section 40-4-212, MCA (the best interest test) states, in part:

“The five factors mentioned specifically are those most commonly relied upon in the appellate opinions; but the language of the section makes it clear that the judge need not be limited to the factors specified. Although none of the familiar presumptions developed by the case law are mentioned here, the language of the section is consistent with preserving such rules of thumb. The preference for the mother as custodian of young children when all things are equal, for example, is simply a shorthand method of expressing the best interest of children — and this section enjoins judges to decide custody cases according to that general standard. The same analysis is appropriate to the other common presumptions: a parent is usually preferred to a non-parent; the existing custodian is usually preferred to any new custodian because of the interest in assuring continuity for the child; preference is usually given to the custodian chosen by agreement of the parents.” (Emphasis added.)

In sum, the court did not abuse its discretion in finding that, in this situation, the parent was generally preferred to the non-parent, given the evidence of the parent’s good character.

Lastly, we note appellant’s assertion that the court should have appointed counsel to represent the interests of C.G. Appellant does not assert, and we do not find in the record, that the court was requested to appoint counsel. Therefore, we find no error in the refusal to appoint counsel for C.G.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROSEANNE MARIE MURRAY, Defendant and Appellant.
    No. 86-335.
    Submitted May 1, 1987.
    Decided Aug. 18, 1987.
    Rehearing Denied Sept. 10, 1987.
    741 P.2d 759.

      Morrison, Hauge, Ober, Young & Melcher, Robert Morrison argued, Havre, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Marc Racicot argued, Asst. Atty. Gen., Helena, Donald A. Ranstrom, Blaine Co. Atty., Chinook, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Roseanne Murray appeals her Blaine County District Court conviction for deliberate homicide. She raises three issues on appeal: (1) whether the District Court erred in refusing to declare a mistrial because of juror misconduct; (2) whether the defendant received the effective assistance of counsel where the State allegedly failed to file timely notice of witnesses; and (3) whether the court erred in allowing evidence of the defendant’s prior disciplinary acts toward her foster daughter, the victim of the homicide. We affirm.

In September 1985, the defendant and her husband had five children living with them in their home near Chinook, Montana. T.H., the victim, was a 29 month old foster daughter of the Murrays. L.F. and F.F., who were then approximately nine and eight years old respectively, were also foster daughters and were half sisters of T.H. A., an adopted daughter, was then three years old and J., almost six months old at that time, had recently been placed for adoption with the Murrays.

On September 26, 1985, the defendant called Dr. James Beggs in Chinook at approximately 3:05 p.m. and reported that T.H. had stopped breathing. Dr. Beggs and an ambulance crew went to the Murray house to assist the child. The ambulance transported T.H. to the Northern Montana Hospital in Havre. She died later that evening. The county coroner listed the cause of death as internal injuries with associated bleeding, infection and shock. The autopsy of T.H. showed multiple bruises, abrasions and internal injuries. For purposes of this appeal, we need not recite the horrible specifics of the injuries nor all of the circumstantial evidence pointing to the defendant as the perpetrator. Police arrested the defendant and the State charged her with deliberate homicide.

The Blaine County District Court scheduled defendant’s trial for April 7, 1986. On March 28, 1986, ten days prior to trial, the State gave notice of its intent to possibly call twelve additional witnesses. The defendant moved to continue the trial date or, in the alternative, to deny the prosecution the right to call the additional witnesses. Ultimately the defense appeared to acquiesce in the court’s decision not to continue the trial and to allow the State to call some of the additional witnesses.

On April 2, 1986, the State filed notice of its intent to introduce evidence of prior acts of violence of discipline toward T.H. At the omnibus hearing in January 1986, the State had indicated it would not rely on evidence of past acts. In response to the April notice, the defense moved (1) to quash the State’s notice of intent to introduce evidence; (2) in limine, to prevent the State from introducing evidence of the defendant’s prior acts; and (3) for more specific information on the date, conduct and relevance of defendant’s prior acts. The court ruled against the defense on all three aspects of its motion and allowed the State to introduce evidence of the defendant’s prior disciplinary acts.

The case went to trial on April 7, 1986. Evidence at trial revealed that (1) F.F., L.F. and T.H. may have been abused, sexually and otherwise, prior to living with the Murrays; (2) that the two older children acted in violent and sexually inappropriate ways toward the younger children; and (3) that F.F. was especially violent towards T.H. Defendant’s testimony implied that T.H. may have been fatally injured by her nine year old half sister, F.F. Eventually, the jury convicted the defendant of deliberate homicide. The court sentenced defendant to fifty years in prison and designated her a nondangerous offender for parole purposes. This appeal followed.

The first issue is whether the court erred in refusing to declare a mistrial because of juror misconduct. Defendant complains about the alleged misconduct of two jurors. After the trial had commenced, juror Schaeffer was seen entering the local office of the state Social and Rehabilitative Services (SRS). At that point, evidence had already shown that SRS was involved peripherally in the case. The judge admonished the jury as a whole to avoid SRS personnel and the SRS office. Later, the defense produced evidence that Schaeffer, during the course of a conversation with his wife, mentioned the names of the Murrays and of some of the children while he was in a restaurant. Schaeffer denied that he discussed the case in public with anyone.

The most serious misconduct was that of juror McCoy. While the trial was in progress and after there had been evidence of sexual abuse of the children, juror McCoy made several phone calls attempting to contact Mr. Ranstrom, the Blaine County Attorney who assisted with the prosecution of defendant. Juror McCoy refused to identify herself and Ranstrom initially refused to talk with her for that reason. On her third call to Ranstrom’s office, McCoy left an anonymous message quoting a newspaper article that “[e]ven criminal court cases involving sexual abuse charges are closed to the public .. . “ Still without knowing McCoy’s identity, Ranstrom returned her call to explain that the evidence of sexual abuse was properly admissible in a public trial in this instance. McCoy replied that she still didn’t like it (apparently referring to the evidence of sexual abuse). Ranstrom stated that he didn’t like it and that the victims and “perpetrators” probably didn’t like it either. Ranstrom later ascertained that the caller was juror McCoy and he informed the court and defense counsel of what had transpired. The article to which juror McCoy referred had appeared some months before in the Chinook, Montana, newspaper. The article talked of the sexual abuse of children in general terms and quoted several people, including one of the prosecutors of this case, on the problems of sexual abuse cases. The article made no mention of the instant case.

McCoy’s actions violated the instructions given by the court at the start of the trial. The court had instructed, among other things, that the jurors should not talk about this case with anyone; that the jurors could not talk with any of the witnesses or attorneys involved in the case; that the jurors must not consult any books, encyclopedias or any other source of information, unless the judge authorized them to do so, and that the jurors should not read about the case in the newspapers.

The defense moved for a mistrial, complaining mainly about juror McCoy but also about juror Schaeffer. The court denied the motion.

“The ruling of the District Court on a motion for mistrial is not to be lightly disturbed. As we stated in Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316:

“ ‘We hold that once the District Court has considered the matter, however it is raised, whether on a question for mistrial or motion for a new trial this court will not lightly disturb that ruling. To overthrow it this court must be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court’s ruling.’ 148 Mont. at 343, 420 P.2d at 317-18.”

State v. Counts (Mont. 1984), 679 P.2d 1245, 1248, 41 St.Rep. 681, 686.

In Counts, the defendant moved for a mistrial because of the possibility Of juror misconduct. We stated,

“In this state, if jury misconduct is shown tending to injure the defendant, prejudice to defendant is presumed. However, this presumption is not absolute and may be rebutted by testimony of the juror showing facts which prove that prejudice or injury did not occur.” [Citation omitted.]

Counts, 679 P.2d at 1248.

Here, juror McCoy testified (1) that she called prosecutor Ranstrom to ask why the evidence of sexual abuse was not heard in closed hearings; (2) that she found the newspaper article accidentally; (3) that, prior to the close of evidence, she had not formed or expressed any opinion as to the guilt or innocence of the defendant; (4) that she was not prejudiced either for or against the defendant; and (5) that she could be a fair and impartial juror. Juror Schaefer testified that he did not discuss the case in public at a restaurant and that he had not formed an opinion as to guilt or innocence prior to jury deliberations. Prosecutor Ranstrom also testified that the phone conversation with juror McCoy was basically limited to the propriety of allowing sexual abuse evidence in hearings open to the public. Lastly, we note that the newspaper article was general in nature and made no mention of the instant case.

Arguably, the jury misconduct tends to injure the defendant and, therefore, prejudice should be presumed. However, we find that the District Court could properly conclude that there was sufficient evidence to rebut any presumption. We affirm the denial of the motion for mistrial because there is not clear and convincing evidence of the error of the court’s ruling.

The second issue is whether the defendant received the effective assistance of counsel where the State allegedly failed to give timely notice of witnesses. Appellant relies on State v. Sotelo (Mont. 1984), [209 Mont. 86,] 679 P.2d 779, 782, 41 St.Rep. 568, 571, wherein this Court stated that where counsel “has not been afforded sufficient time to prepare a defense, the accused’s specific rights have been violated and his general right to a fair trial has been denied.”

Ten days before trial, the State gave notice of its intent to possibly call twelve additional witnesses. After the defendant’s objection, the State agreed not to call five of those witnesses and pointed out that the defense had already endorsed two of those witnesses. The court held a conference call on the addition of witnesses and, at that time, defense counsel stated, “I would say that my complaint is primarily to [L.F.].” The State suggested that, “If L.F. was withdrawn then and only used in possible rebuttal, then you wouldn’t have a problem. Am I incorrect?” The defense counsel replied, “I would say that if she is withdrawn that we probably could do it, yes . . .” Thereafter, the prosecutor filed a letter stating that the prosecution would not call L.F. as a witness and, therefore, the trial would go on as scheduled. The above-cited transcript of the conference call demonstrates that the defense appeared to acquiesce in the decision not to continue the trial date. The defense complains now of the prejudice resulting from the late addition of witness Córtese.

In State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 924, 41 St.Rep. 1293, 1299, this Court stated, “[i]t is discretionary with the District Court to allow additional witnesses . . .” In Lid-dell, the lower court allowed the prosecution to endorse an additional witness on the day of trial. The defense did not ask the court for a continuance and had interviewed the witness prior to trial. We found no error in adding the new witness.

Here, the State listed the new witnesses ten days before trial. Moreover, the defense appeared to acquiesce in the decision not to continue the trial. Therefore, we find that the court did not abuse its discretion in allowing the new witnesses.

The last issue is whether the court erred in allowing the State to introduce evidence of defendant’s prior disciplinary acts toward the victim. The State introduced evidence that, on dates prior to T.H.’s death, the defendant (1) picked T.H. up by one arm and one leg while the child was sleeping and moved her a short distance; (2) disciplined T.H. by slapping her fingers and telling her not to cry; (3) tied T.H.’s hands to the bed at night so the child would not scratch her genitals; (4) made T.H. wear a dirty diaper all evening; (5) kicked T.H. to wake her up and kicked her butt up the stairs; (6) would not allow other people to pick up or hold T.H., saying the child had been previously abused; and (7) caused T.H. to drink vinegar from a bottle to break her habit of using an infant’s bottle.

Rule 404(b), M.R.Evid., provides:

“Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this Court set forth substantive and procedural guidelines for application of the Rule 404(b), M.R.Evid., exception. The procedural guidelines are that:

“(a) Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced. The procedures set forth in Section 46-18-503, MCA should serve as guidelines for the form and content of such notice. Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.
“(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any oifense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

State v. Brown (Mont. 1984), [209 Mont. 502,] 680 P.2d 582, 584, 41 St.Rep. 852, 814-855, quoting Just, 184 Mont, at 274, 602 P.2d at 957. In Just, this Court also established a four element test for the admissibility of evidence of other crimes or acts in criminal prosecutions. Those elements are (1) similarity of crimes or acts; (2) nearness in time; (3) tendency to establish a common scheme or system; and (4) the probative value of the evidence must not be substantially outweighed by the prejudice to the defendant.

Defendant first argues that the State’s “notice of intent to introduce evidence” of prior acts was not timely made. We disagree. The State served notice to the defendant on April 1, 1986, six days prior to the April 7 trial date. Shortly after the Just decision this Court decided State v. Case (Mont. 1980), [190 Mont. 450,] 621 P.2d 1066, 37 St.Rep. 2056, wherein we elaborated on the procedural guidelines for the introduction of prior crimes or acts evidence. We stated,

“First, the State must provide written notice to the defendant, before the case is called for trial, that the evidence is to be- produced.” (Emphasis added.)

Case, 621 P.2d at 1071. We find that the State’s notice was timely.

The defense also complains that the State’s notice did not describe with sufficient specificity the prior acts of defendant. The notice describes evidence of prior acts as revealed by the statements of the defendant and six other witnesses, “copies of which have previously been provided to defense counsel.” The defense acknowledged receiving the six witnesses’ statements well before trial and that they had interviewed each of those witnesses. We find that the defense was apprised with sufficient specificity of the evidence to be introduced.

The final issue is whether the prior acts evidence wets admissible under the four part test enunciated in Just. The court found that all four parts of the Just test were satisfied. Initially, we note that

“[w]hile failure of questioned evidence to meet only one element of the Just test is not sufficient to refuse its admission, a decision to admit the evidence should not be made lightly. The four factors must be considered together.”

State v. T.W. (Mont. 1986), [220 Mont. 280,] 715 P.2d 428, 430, 43 St.Rep. 368, 371. The first element is the similarity of the prior acts to the crime charged. We fail to see how certain of the prior acts cited above (such as causing T.H. to drink vinegar from a bottle and making her wear a dirty diaper for one evening) can be considered similar to the violence which resulted in the child’s death. Other acts arguably display a harsh disciplinary attitude which foreshadows, and is minimally similar to, the fatal violence. We find that the similarity requirement is not clearly met in this case.

The second guideline, nearness in time, is clearly met in this case. All of the events occurred within one year of T.H.’s death.

Under the third Just guideline, we find that the disputed evidence does tend to establish a common scheme, plan, or system, i.e., a system of unusually harsh discipline of the child. In State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357, 39 St.Rep. 989, four members of a church sect were convicted of deliberate homicide in the death, by disciplinary beatings, of the son of two of the defendants. The trial court allowed evidence of prior acts of violence against the victim and other children committed by members of the church other than the defendants. We ruled that the evidence was properly admissible, stating,

“Evidence of the acts by church members other than defendants, and acts by the defendants against children other than the victim, show the common design toward disciplining children by beatings arising out of the church policy. It ties these defendants to that policy by showing the similarity of methods and discipline practiced by church leaders and these defendants.
“The evidence at issue here provides proof of these defendants’ motive for inflicting the punishment on the victim and the plan and intent behind the treatment of him.”

Powers, 645 P.2d at 1363. Here, the evidence of prior acts arguably showed the defendant’s motive (discipline) in inflicting the injuries which resulted in T.H.’s death and showed a system of excessively harsh discipline.

We also find that the fourth Just element is met here. In the unique circumstances of this case, where the prosecution had to rely heavily on circumstantial and indirect evidence because of the nature of the crime, the probative value of the disputed evidence was not substantially outweighed by the prejudice to the defendant. Given that the last three elements of the Just formula are present, we hold that the disputed evidence was properly admissible.

We further hold that the disputed evidence was also admissible under State v. Sigler (Mont. 1984), [210 Mont. 248,] 688 P.2d 749, 41 St.Rep. 1039, independent of Rule 404(b) and the Just formula. Sigler was convicted of beating a nineteen month old child to death. In Sigler, we condoned the introduction of evidence of Sigler’s previous violent disciplinary acts, including “hard spankings,” cigarette burns, slapping and kicking the child. We held that the evidence was admissible under Just and upon other, independent grounds. We stated:

“Evidence of other crimes, wrongs or acts is an exception to the general rule that evidence of a person’s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. Rule 404 M.R.Evid. A trait of character is to be distinguished from habit. ‘A habit is a person’s regular response to a repeated specific situation.’ Rule 406, M.R.Evid. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
“ ‘Character may be thought of as the sum of one’s habits though doubtless it is more than this. But unquestionably the uniformity of one’s response to habit is far greater than the consistency with which one’s conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act, surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it.’ McCormick on Evidence Section 162, at 341.
‘'Under Rule 406, M.R.Evid., the acts habitually performed by Sigler in response to his perceived need for discipline of the child were admissible. As a matter of habit, his discipline of the child was excessively harsh.” (Emphasis added.)

Sigler, 688 P.2d at 752-753. The disputed evidence here was also admissible under Rule 406, M.R.Evid., as tending to show the defendant’s habitually excessive discipline of the child.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY and HUNT and HON. JOSEPH B. GARY, District Judge, sitting in place of former justice, MR. JUSTICE MORRISON.


text:
    In re the MARRIAGE OF WERNER W. BULTMAN, Petitioner and Respondent, and TERESA V. BULTMAN, Respondent and Appellant.
    No. 87-94.
    Submitted on Briefs June 18, 1987.
    Decided Aug. 18, 1987.
    740 P.2d 1145.
    James J. Masar, Deer Lodge, for respondent and appellant.
    Deirdre Caughlin, Butte, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The wife appeals a property distribution order of the Silver Bow County District Court. The issues on appeal are:

(1) whether the District Court erred in dividing the wife’s stock inheritance equally between the parties; and

(2) Whether the District Court improperly referred to marital misconduct in its findings. We affirm.

The parties married in 1948 and a decree of dissolution of marriage was entered in 1986. The husband was a carpenter and the wife taught school. Both parties are now retired. During the marriage, the husband inherited real property from his family on which the family home and a shop was constructed, and the wife inherited stock from her family. The parties separated at the time the husband was placed in the Galen State Hospital. The husband was not allowed to return to the family home and he is currently residing in Butte, Montana. The wife remained in the family home and controlled the parties’ assets until the property division hearing. The husband lived on his social security disability payments while he was away from home. We note that the husband’s monthly income was $166 short of his expenses. The court decided that the parties’ real property should be sold and the proceeds divided equally with the provision that until the family home was sold, the wife could continue to occupy the home. The court further decided that the parties’ liquid assets, including the stock, should likewise be divided equally.

The first issue is whether the District Court erred in dividing the wife’s stock inheritance equally between the parties. A district court has far-reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of discretion is shown. In Re Marriage of Kaasa (1979), 181 Mont. 28, 22, 591 P.2d 1110, 1113. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In Re Marriage of Obergfell (Mont. 1985), [218 Mont. 83,] 708 P.2d 561, 563, 42 St.Rep. 1414, 1417-1418.

Section 40-4-202, MCA, states in part:

“[t]he court. . . may . . . equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.” (Emphasis added.)

The statute also states that in the apportionment process the court shall consider the sources of income. Section 40-4-202, MCA, is of necessity a flexible statute which vests a good deal of discretion in the district court. Given the infinite varieties of factual situations presented by both parties to dissolution proceedings, trial judges must enjoy the latitude to address each case individually with an eye to its unique circumstances. In Re Marriage of Hundtoft (Mont. 1987], [225 Mont. 242,] 732 P.2d 401, 402, 44 St.Rep. 204, 205.

The wife argues that the stock gifted to her by her family during the marriage should not be equally divided between the parties since the husband did not add to its value during the marriage. We again emphasize that Section 40-4-202, MCA, authorizes the trial court dividing the marital estate to consider the sources of income and all property and assets, however and whenever acquired. The facts here reveal that the assets were commingled and held jointly and that all property, including the stock, was acquired during the marriage. Following the statute, the court noted that the stock (worth $34,400), was inherited from the wife’s family and the real property (worth $92,570) was inherited from the husband’s family. We believe the court considered each party’s contribution to the marital estate and correctly exercised its discretion under Section 40-4-202, MCA. We see no reason to disturb the ruling on this issue.

The second issue is whether the District Court improperly referred to marital misconduct in its findings. Section 40-4-202, MCA, prevents a court from considering marital misconduct in property division proceedings. The wife cites as evidence the court’s reference to the husband’s placement in Galen Hospital by the wife and the fact that the husband was not permitted to return to the family home, nor was he entitled to access to the parties’ liquid assets until the property division hearing. We do not believe this is improper comment on marital misconduct. To the contrary, these findings help to explain the court’s decision to order the sale of the family home and divide the proceeds equally in the interests of both parties.

Affirmed.

MR. JUSTICES HARRISON, WEBER, SHEEHY and McDONOUGH concur.