text:
    MICHAEL C. BENGALA, M.D., Plaintiff and Appellant, v. CONSERVATIVE SAVINGS BANK, a/k/a Conservative Savings and Loan, Defendant and Respondent.
    No. 91-271.
    Submitted on briefs Aug. 29, 1991.
    Decided Sept. 24, 1991.
    250 Mont. 101.
    818 P.2d 371.

      Michael C. Bengala, pro se.
    Colleen E. Ambrose, Sullivan & Tabaracci, P.C., Missoula, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a bench trial and judgment in the Fourth Judicial District Court, Missoula County. Dr. Michael C. Bengala (Plaintiff/Appellant) appeals the trial court finding that Conservative Savings Bank of Omaha, Nebraska (Defendant/Respondent), did not commit actual or constructive fraud in leasing commercial property to the plaintiff and that the plaintiff improperly invoked the lessee’s remedies under § 70-26-203, MCA. We affirm.

Dr. Bengala (Bengala) entered into a three-year lease agreement with Conservative Savings Bank (the Bank) and the Randel Corporation. During negotiations for the leasehold, Bengala became aware that the office building lay in a flood plain. He was informed by the Bank through its agent and property manager (Ms. Lonnie Warner) that in 1980 the basement of the building had flooded, that a berm had been constructed to minimize the risk of future flooding and that in the previous three years no flooding had occurred.

Bengala took possession of the premises October 1, 1985. In February 1986, flooding occurred, the berm failed to protect the building, and floodwater entered Bengala’s office. Ms. Warner (Warner) responded to the flood by directing the installation of a sandbag dike and by bringing in pump trucks to remove flood water from the building. Damage to Bengala’s property in the office was prevented.

Warner told Bengala, on his inquiry, that the sandbag dike was temporary and that the Bank would take further action to prevent the threat of future flooding. An engineering firm was hired; however, construction of a berm that would protect the property was not possible because it entailed procuring an easement that the adjacent property owner was unwilling to provide. Throughout the remainder of the year, the Bank and the engineering firm attempted to develop alternative solutions. Meanwhile, the temporary sandbag dike, later fortified with dirt, remained.

In December 1986, Bengala withheld his rent in protest of the Bank’s inaction on installation of permanent flood protection. In January 1987, Bengala wrote the Bank that he was pursuing remedy for breach of contract in accordance with § 70-26-203, MCA (Failure of Lessor to Repair-Lessee’s Remedies), and that he intended to vacate. Bengala remained as a tenant but continued to withhold his rent.

In February 1987, Bengala sent a letter to Warner informing her that the sidewalks in front of the office had heaved upwards and created a dangerous hazard. Warner had warning signs placed next to the walk and contacted a contractor to inspect the problem. It was determined that the cause of the upheaval was frost. When the frost subsided, the sidewalk returned to its normal state and no repairs were made.

Twice, Bengala experienced problems with the sewer system. On both occasions, the Bank, through Warner, timely responded and restored the sewer to working order.

After refusing partial rent payments in April and May, the Bank gave Bengala notice to pay rent or quit. Bengala then initiated this action requesting the court rescind or revise the lease on the basis of misrepresentation and failure of the Bank to remedy the flood threat and the sidewalk problem. The Bank counterclaimed that Bengala be ordered to vacate, pay back rent and penalties, pay future rent (until the space is sublet), and pay all costs and reasonable attorney’s fees.

Ultimately, Bengala was found to have improperly invoked the remedies of § 70-26-203, MCA. The court ruled that no misrepresentations or other evidence of constructive fraud existed and, therefore, the lease was not revised or rescinded. Bengala was ordered to pay delinquent rent and late penalties up to the time that he actually vacated (August 1987). In addition, the Bank was awarded reasonable attorney’s fees. Bengala appeals from this order.

The issues for review are:

1) Did the District Court err by not finding that the Bank committed actual or constructive fraud?

2) Did the District Court err in finding that Bengala suffered no loss of enjoyment, loss of business profits, or loss of reputation as a result of the flooding?

3) Did the District Court err when it made no finding of fact in regards to an alleged conflict of interest between the Bank and the Randel Corporation?

Bengala asserts that the Bank committed actual fraud by concealing its inability to repair the flood control structure and by concealing that the sidewalk defect was a recurrent problem. Furthermore, Bengala asserts that the Bank committed constructive fraud and thereby breached a duty under the lease agreement when it failed to repair the flood control structure or the sidewalks.

Actual fraud as defined by § 28-2-405, MCA:

“... consists in any of the following acts committed by a party to the contract or with his connivance with intent to deceive another party thereto or to induce him to enter into the contract:
“(1) the suggestion as a fact of that which is not true by one who does not believe it to be true:
“(2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
“(3) the suppression of that which is true by one having knowledge or belief of the fact;
“(4) a promise made without any intention of performing it; or
“(5) any other act fitted to deceive.”

A prima facie case of actual fraud must include proof of a representation; its falsity; its materiality; the speaker’s knowledge of its falsity or ignorance of its truth; the speaker’s intent that it should be acted upon by the person and in the manner reasonably contemplated; the hearer’s ignorance of its falsity; the hearer’s reliance upon its truth; the right of the hearer to rely upon it; and the hearer’s consequent and proximate injury or damage. AVCO Financial Services v. Foreman-Donovan (1989), 237 Mont. 260, 772 P.2d 862.

Whether or not there has been fraud in any given case is a question of fact. AVCO Financial Services, 237 Mont. at 263, 722 P.2d 862. Review of questions of fact in a non-jury case are governed by Rule 52(a), M.R.Civ.P., which provides in part that:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
“[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” Steer, Inc. v. Department of Revenue of the State of Montana (Mont. 1990), [245 Mont. 407,] 803 P.2d 601, 47 St.Rep. 2199, citing Wage Appeal of Montana State Highway Patrol Officers v. Board of Personnel Appeals (1984), 208 Mont. 33, 676 P.2d 194.

Bengala argues that the Bank failed to provide evidence that it did not conceal its inability to repair. However, fraud can never be presumed but must be proven by a preponderance of the evidence by the party alleging the fraud. Batten v. Watts Cycle and Marine, (1989) 240 Mont. 113, 783 P.2d 378, cert. denied, _ U.S. _, 110 S.Ct. 1826, 108 L.Ed.2d 955, . Bengala had the burden of proving by a preponderance of the evidence the elements as elaborated in AVCO. The District Court finding that the evidence Bengala presented did not meet this burden is not clearly erroneous; therefore, we affirm.

Bengala contends that the Bank committed constructive fraud by failing to repair. He relies on § 28-2-406, MCA, which states in part that constructive fraud consists in:

“(1) any breach of duty which, without an actually fraudulent intent, gains advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; ...”

Bengala asserts that the Bank has breached the provision in the lease providing that:

“The lessor shall also maintain the roof, the foundations, exterior walls and structural members of the premises and sidewalks in good condition.”

Bengala contends that regardless of the Bank’s explanation for failing to do so, the lease obligated the Bank to make repairs to the flood control structure and the sidewalk and they have not. Allegedly, the Bank misled Bengala that the repairs would be made but have avoided doing so and thereby saved itself the cost of repair.

The evidence is clear that the Bank acted on the sidewalk problem and was attempting to resolve the flood problem. Bengala was not made aware of the Bank’s efforts until after he withheld his rent in protest. In essence, Bengala is asking the court to find an affirmative duty on the part of the Bank to provide progress reports of the repair project. Absence of these reports, Bengala contends, constitutes constructive fraud because it indicates concealment and/or misleading conduct on the part of the Bank. There is a failure of proof. The District Court’s ruling that the Bank did not commit constructive fraud was not clearly erroneous and therefore is affirmed.

Nonetheless, the court did find that once Bengala vacated the office building he was no longer liable for further rent payment. Although it is not clear, it appears that the court did find a sufficient breach of contract to support absolving Bengala from future payments on the lease. Whether or not the flood control structure is covered by the lease provision requiring repair, and the basis of the court’s decision to absolve Bengala from future rents was not cross-appealed by the respondent and is not before this Court.

The court ruled that Bengala improperly invoked the remedies of § 70-26-203, MCA, which states:

“If within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so,... the lessee may perform such repairs himself and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he is discharged from further payment of rent...”
“Dilapidation” that a landlord “ought” to repair “are those which significantly diminish the enjoyment of the premises or substantially interfere with the purposes for which the leased premises are intended.” Bunke, Inc. v. Johnson (1983), 205 Mont. 125, 666 P.2d 1234.

The record here establishes that the sidewalk settled back down and was no longer in immediate need of repair, that the sewer system functioned properly and that the Bank was making efforts to repair the flood control structure. Furthermore, Bengala did not repair the defects he complained of and deduct them from his rent, he did not vacate until August 1987 and he did not pay rent from December 1986 until he vacated.

The District Court ruled that the premises continued to be fit for use as an office. The court found that the sandbag dike, the problems with the sewer system and the sidewalk problem did not render the building unfit for its intended use. The record indicates not only that Bengala was not entitled to invoke lessee’s remedies pursuant to § 70-26-203, MCA, but also that the court correctly ruled that Ben-gala failed to properly invoke them. Because Bengala remained a tenant and the use of his leasehold was not substantially impaired, the court properly held Bengala liable pursuant to the lease agreement. Liability included rent payments from December to August, late payment penalties and reasonable attorney’s fees.

In addition, the court did not find sufficient evidence to substantiate the claim that Bengala’s reputation was damaged or business profits lost. Bengala has been abundantly clear from before he entered the lease agreement that as a medical professional he places tremendous importance in maintaining a professional atmosphere. Bengala alleges that the flooding, the sidewalk and the sewer problems have all detracted from that atmosphere and consequently diminished his reputation and business profits. Bengala asserts that the court failed to appreciate the seriousness of the evidence he offered and erred in its ruling. The record does not support these claims. The District Court’s findings are not clearly erroneous and therefore must be affirmed.

Bengala makes one final claim regarding the relationship between the Bank and the Randel corporation. The adjacent property owner, a successor in interest to the Randel corporation (a co-lessor), would not grant the easement necessary to build the flood control structure. It appears that Bengala is attempting to argue that the Bank unduly influenced its co-lessor to default on the adjacent property knowing that the successor in interest (a Maryland bank) would refuse to grant the easement and thereby save the Bank the expense of repair.

There is no evidence on the record to substantiate such a tenuous claim. Bengala did not raise the issue of conflict of interest at trial. Its initial appearance is in his brief submitted to this Court. We will not consider an issue raised for the first time on appeal. Schaeffer v. Champion Home Builders Co. (1987), 229 Mont. 533, 747 P.2d 872, citing Rozel Corp. v. Department of Public Service Regulation (1987), 226 Mont. 237, 735 P.2d 282. The District Court did not err by failing to make a finding of fact that a conflict of interest existed.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, TRIEWEILER and GRAY concur.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE WEBER,

license: Public Domain

text:
    JONATHAN R. KOHNE, Plaintiff and Appellant, v. ROY YOST, a minor, and Roy Yost, Sr. as guardian ad litem for Roy Yost, a minor, Defendant and Respondent.
    No. 90-579.
    Submitted on briefs June 27, 1991.
    Decided Sept. 25, 1991.
    As Modified Oct. 4, 1991.
    250 Mont. 109.
    818 P.2d 360.

      James P. Harrington, Butte, for plaintiff and appellant.
    Gary L. Walton, Poore, Roth & Robinson, Butte, for defendant and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant, Jonathan R. Kohne, appeals from an order of the District Court, Second Judicial District, Silver Bow County, denying his motions for New Trial, or to Amend Judgment or to Set Aside Verdict and Judgment and for Judgment Not Withstanding Verdict.

We reverse.

Appellant raises several issues. However, we hold the following issue to be dispositive:

Whether statements made by defense counsel in closing argument admitting negligence constitute a judicial admission dispositive on the issue of negligence.

On June 17, 1988, appellant John Kohne, age 21, and respondent Roy Yost, Jr., age 13, engaged in a game of combat with B.B. guns. Initially, Kohne and Yost were to help Kohne’s mother move to a new residence. Bored with the task, Kohne and Yost decided to shoot B.B.s at some pop cans, an old jeep battery, and windows. The testimony is unclear as to who suggested the “combat” game between the two participants. However, they did establish three rules. They were not to pump the B.B. guns more than five times, they were not to shoot above the shoulders, and they were to say “ouch” when they were hit by a B.B. The game ensued for several minutes outside the home until Kohne’s sister arrived.

The combatants stopped playing and demonstrated their bruises to Kohne’s sister. She scolded her brother for playing with B.B. guns instead of packing boxes. After a few minutes, they went inside the house to the living room. Yost walked to the back bedroom, while Kohne and his sister continued to argue in the living room and kitchen.

After a few more minutes, Kohne walked through the kitchen towards the back bedroom of the house, where Yost was hiding with his B.B. gun. Kohne and his sister testified that as he approached the back bedroom, he was carrying boxes. Yost testified Kohne was carrying a B.B. gun. Yost was standing next to the bedroom door leading to the outside of the residence. John Kohne was standing next to the doorway leading from the kitchen to the bedroom. He saw Yost pointing the B.B. gun at him. The B.B. gun went off and shot Kohne in the lens of his left eye. Yost immediately apologized and stated he thought the safety was on. Kohne suffered extensive injuries to the eye, including permanent loss of the lens and permanent injury to the cornea and iris, as well as other physical and psychological damage.

Defense counsel originally claimed that Yost was firing in self-defense and that Kohne’s intentional and malicious conduct constituted battery. Plaintiff was granted a directed verdict on defendant’s counterclaim. At the close of all the evidence, defense counsel was allowed to amend his counterclaim to a negligence and comparative negligence theory.

During closing argument, defense counsel made the following admissions:

“It’s our position that your decision on Roy Yost’s negligence depends upon whether you find that Roy Yost was more negligent on the 17th of June than John Kohne.”

(Transcript, p. 473.)

“I submit to you that both of them are negligent. You’re not going to have a lot of trouble with that very first question of negligence because, you bet, playing the game in and of itself, they were negligent....”

(Transcript, pp. 478-479.)

“[Tjhrow both sides of the lawsuit out, no liability, none. And the way you get there is you find that John Kohne being an adult, 21 years old, he knew better, he should have known better and the moment that the game started, he should have stopped it. And so when the game starts, he’s more at fault, he’s not equally at fault, he’s more. He’s 55, 60, 75 percent at fault for this game because when the game started and when the game continued, John Kohne continued it.”

(Transcript, p. 492.)

“He was at fault because he played the game too, but he’s the 13-year-old boy and this man that started it all, he was more at fault.”

(Transcript, p. 497.)

The jury found no negligence on the part of either the defendant or plaintiff. Plaintiff’s counsel moved for judgment notwithstanding the verdict. The District Court denied the motion. Plaintiff’s counsel timely filed motions for a New Trial, or to Amend Judgment or to Set Aside Verdict and Judgment and for Judgment Not Withstanding Verdict on the basis, among other issues, that there was insufficient evidence to support the verdict, and that defense counsel made admissions in his closing argument that defendant was negligent. In a memorandum and order dated August 14,1990, the District Court denied plaintiff’s motions. It is from this order that plaintiff appeals.

Previously, we have held that counsel’s admissions are binding upon the client.

“A party may appear in person or by an attorney; but, when he appears by attorney, the latter while acting as such has control and management of the case, and his sayings and doings in the presence of the court concerning the trial of the cause are the same as though said and done by the party himself.”

State ex rel. Eden v. District Court (1939), 109 Mont. 263, 268, 95 P.2d 447, 449.

Judicial admissions are important because they have the effect of a confessory pleading. 9 Wigmore, Evidence, § 2588 (Chadbourn rev. 1981). A judicial admission is an express waiver made in court by a party or his attorney “conceding for the purposes of the trial the truth of some alleged fact.” Wigmore at § 2588. The main characteristic of a judicial admission is the conclusive effect upon the party making the admission. No further evidence can be introduced to prove, disprove, or contradict the admitted fact. Wigmore at § 2590.

Judicial admissions may occur at any point during the litigation process. They may arise during discovery, pleadings, opening statements, direct and cross-examination, as well as closing arguments. Lowe v. Kang (Ill.App.Ct. 1988), 167 Ill.App.3d 772, 118 Ill.Dec. 552, 555, 521 N.E.2d 1245, 1248. The district court must focus upon the statement itself, rather than on a certain stage of the litigation proceeding. Plaintiff’s counsel, at the time of hearing on his motion for a new trial, asked the court to rule that the admission in the final argument by defense counsel was a judicial admission of negligence. We note that a preferable procedure would have been for plaintiffs counsel to call that admission to the attention of the court and request the court to give modified instructions to the jury to reflect the admission of negligence.

To determine whether a statement is a judicial admission depends upon the circumstances of each case. Lowe, 118 Ill.Dec. at 555, 521 N.E. 2d at 1248. For a judicial admission to be binding, it must be an unequivocal statement of fact. Childs v. Franco (E.D.Penn. 1983), 563 F.Supp. 290, 292. The District Court should not consider statements of counsel’s conception of the legal theories of the case to be binding. Childs, 563 F.Supp. at 292.

Defense counsel contends he was only arguing an alternative legal theory and merely suggesting that the defendant was negligent. Defense counsel’s unequivocal statements, taken in full context with the rest of his closing argument, constituted judicial admissions on the issue of negligence binding his client. It is obvious from the record that defense counsel changed tactics in order to win a favorable comparative negligence verdict. He amended his counterclaim to establish negligence and comparative negligence theories. Defense counsel’s admissions reflect this change in legal position.

“It’s our position that your decision on Roy Yost’s negligence depends upon whether you find that Roy Yost was more negligent on the 17th of June than John Kohne.”

(Transcript, p. 473.)

“I submit to you that both of them are negligent. You are not going to have a lot of trouble with that very first question of negligence, because, you bet, playing the game in and of itself they were negligent

(Transcript, pp. 478-479, emphasis added.)

“And so when the game starts, he’s more at fault, he’s not equally at fault, he’s more. He’s 55, 60, 75 percent at fault for this game because when the game started and when the game continued, John Kohne continued it.”

(Transcript, p. 492, emphasis added.)

“He was at fault because he played the game too, but he’s the 13-year-old boy and this man that started it all, he was more at fault.” (Transcript, p. 497, emphasis added.)

Other than at the beginning of his closing argument, defense counsel failed to preface these admissions to the jury that the statements were only suggestions. Moreover, several times throughout the closing argument, defense counsel argues his client is negligent at least to some degree. Other uncontroverted evidence fails to support the jury’s verdict. Yost pointed the gun at Kohne. Yost admitted that he thought that the safety was on. Yost had considerable training in the safe use of guns by his father and a hunter safety program, and he admitted he did not follow that training when accidentally shooting Kohne.

We remand for a new trial.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, TRIEWEILER, GRAY and McDONOUGH concur.

JUSTICE WEBER,

dissenting:

The majority concluded that the attorney’s unequivocal statements in closing argument constituted a judicial admission of negligence by the defendant. As a result, the majority concluded that plaintiff deserved a new trial.

I will first review the following elements of the trial in the order in which they actually occurred: the pertinent instruction to the jury; the closing argument by defense counsel, which the majority concludes is an admission of negligence; and the jury verdict.

In this case Court’s Instruction No. 1 provided:

“You are the sole and exclusive judges of the facts. You must consider and weigh the testimony of all witnesses. You alone are to determine whether to believe any witnesses and the extent to which any witness should be believed. It is your responsibility to resolve any conflicts in the testimony which may arise during the course of the trial.
‘Your determination of the facts in this case must be based upon the evidence regardless of who presented it. Arguments, statements and remarks of attorneys are not evidence, and you should disregard any argument which is not supported by evidence. You have a right to consider all the evidence in the light of your own general knowledge, experience and common sense, and to take into account whether any particular evidence seems reasonable and probable. (Emphasis supplied.)”

I have concluded that it is necessary to set forth a more extended portion of the defense attorney’s argument which the majority has concluded constitutes an admission of negligence. The following is taken from the transcript commencing at page 471:

“Ladies and gentlemen, as you know, the closing argument is the time when the lawyers want to direct your attention to the evidence that’s been admitted in this trial so that you understand the theories of their cases. I hope that in this time that I have with you now that we have the chance to try and figure out what happened on June 17th, 1988.
“One thing I want you to keep in mind, however, is that as jurors in this case your function is to sift through all the facts in evidence that you’ve heard to this time and you make the decision as to what the facts were. I’m going to make some suggestions to you this morning about the facts based on the evidence that came in
“Initially, let’s talk about liability. Liability is what you must find before you ever get to the damages. You’ve seen Mr. Harrington and Mr. Kohne’s large chart here where they’ve asked you for damages, but before you ever get to that question, you have to decide that Roy Yost did something wrong that day, that he was negligent. We don’t dispute and we have never disputed that John Kohne was hurt on June 17th.... But what we’re telling you is before you get to that point of deciding damages, you have to first decide that Roy Yost is liable as a matter of law. And that’s going to be based on the facts as you determine them and the law that the Court gave you this morning.
“It’s our position that your decision on Roy Yost’s negligence depends upon whether you find that Roy Yost was more negligent on the 17th of June than John Kohne. Let’s look at those facts. We have a 21-year-old man invites a 13-year-old boy, a boy who has turned 13 six days before the accident, invites him over to his house — or to his mother’s former home to help him move .... Well, then if it’s wrong for Roy Yost at 13 to shoot guns at someone else, it’s wrong for John Kohne....
“So, the question becomes was Roy negligent for playing the game? Was John negligent for playing the game? I submit to you the Court instructed you on the definition of negligence. Negligence is the failure to use reasonable care. I submit to you that both of them are negligent. You’re not going to have a lot of trouble with that very first question of negligence because you bet, playing the game in and of itself, they were negligent, but did that negligence proximately cause some injury? I just think that two friends shooting at each other is unreasonable ....
“Roy admitted under questioning by Mr. Harrington very clearly, T did not intend to hurt him.’ And I’m sure he didn’t. He also said in his testimony, T didn’t even aim the gun.’ Is that negligence when the game is being played? Is that negligence? I submit to you that it’s not. He didn’t aim the gun because when he stuck his head out from behind the door, what does he see? John at the doorway with the pistol, it’s in his hand. How long is he out there, a minute, a second? Does he have time to know if it’s actually pointed at him? Who knows. That’s a fraction of a second that we’ll probably never be able to recreate. But he jumped out from behind the door, stuck the gun out and fired it. And I think that just like the rest of the game, Roy didn’t mean to hurt John when John got hurt, just like John didn’t mean to hurt Roy when he shot Roy in the chest and the shoulder
“And we respectfully ask you to go into the jury room, pick your foreman and decide there was no fault, greater fault, on Roy Yost. He was at fault because he played the game too, but he’s the 13-year-old boy and this man that started it all, he was more at fault. Thank you.”

The Special Verdict, as set forth in the court’s judgment, is as follows:

“1. Do you find that the defendant was negligent on June 17,1988? ANSWER: W
“6. Do you find that the plaintiff was negligent on June 17, 1988? ANSWER: No’ ”

Keeping in mind the court’s instruction that the jurors are the sole and exclusive judges of the facts and that arguments and statements of attorneys are not evidence and should be disregarded if not supported by the evidence, I will discuss the statements by counsel in the course of argument. I believe it essential to keep in mind that counsel did not suggest that only the defendant was negligent. His statements essentially set forth his contention that both the plaintiff and the defendant were negligent in playing the game of shooting B.B. guns at each other. I don’t see how that can be construed as an admission of negligence only on the part of the defendant. In addition, the majority has not considered the further conflict in the facts as presented by both sides — the plaintiff presented evidence to establish that the game of B.B. gun shooting was actually ended. If the jury accepted the plaintiff’s evidence, then the negligence in playing the game, as admitted, is irrelevant to the question of whether or not the defendant negligently shot the plaintiff after the game had terminated. The key is that the statements by counsel cannot be construed as an admission that the defendant’s negligence in playing the B.B. gun game was the proximate cause of the plaintiff’s injuries.

I further contend that the holding in the case of Brown by Brown v. Markve (1985), 216 Mont. 145, 700 P.2d 602, is contradictory to the majority holding, in this case. In part the Court stated in Brown:

“The court then concluded that this argument to the jury had the legal effect of an admission against interest which set the lower limits of the verdict at $30,000. No citation of legal authority is cited for that conclusion. In addition, the conclusion of the trial court contradicts its own Instruction No. 1 which in part stated as follows:
“ ‘Statements of counsel are not be regarded by you as evidence and you will disregard any such statements which are not supported by the evidence received upon this trial.’
“By his argument, the defense counsel obviously sought to encourage the jury to reach a lower verdict because of the presence of an admission of liability on the part of his client. However, that suggestion cannot be classed as evidence or an admission against interest which set a floor of $30,000 below which the jury could not go. The jury remained the finder of fact with the right to set the damages at $25,000 or such other figure as the jurors might conclude to be appropriate under the evidence.”

Brown, 216 Mont. at 147, 700 P.2d at 603. The instruction in the present case emphasizing that the jury is the trier of fact and is to disregard the statements of counsel is even broader than the above quoted instruction from Brown. In addition, as previously set forth, defense counsel prefaced his so-called admissions by explaining to the jury that they were the ultimate fact finders and stating that his arguments were suggestions.

I conclude that the effect of the majority opinion in its conclusion that the argument of defense counsel constitutes an admission which is binding, directly contradicts the law of the case, Court’s Instruction No. 1, and is inaccurate when all of the closing argument is considered. I would affirm the conclusion of the District Court upholding the verdict of the jury and denying plaintiff’s motion for a new trial.


author: JUSTICE McDONOUGH

text:
    IAN CHRISTOPHERSON, d/b/a OK Corral Bar, Plaintiff and Appellant, v. WHITE, INC., d/b/a White Refrigeration, et al., Defendant and Respondent. and ERMINDO and NELLIE ZAVARELLI, d/b/a OK Corral Bar, Plaintiffs and Appellants, v. WHITE, INC., d/b/a White Refrigeration, Defendant and Respondent.
    No. 91-187.
    Submitted on briefs Aug. 15, 1991.
    Decided Oct. 1, 1991.
    Rehearing Denied Oct. 19, 1991.
    250 Mont. 118.
    817 P.2d 1165.

      Alan J. Lemer, Kalispell, John B. Whiston, Rossbach & Whiston, Missoula, for plaintiff and appellant.
    Richard Ranney, Williams & Ranney, Missoula, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Ian Christopherson and Ermindo and Nellie Zavarelli, owners, appeal from an order of summary judgment granted by the District Court of the Fourth Judicial District, Missoula County, in favor of defendant White, Inc.

The sole issue on appeal is:

Whether the District Court erred in determining that no material evidence existed relative to a fire to support a finding of negligence or proximate cause on the part of White. We affirm.

In the early morning hours on August 19, 1986, a fire occurred at the O.K. Corral Bar in Missoula, Montana, causing extensive damage. In June of 1983, the Zavarellis hired White Refrigeration Inc. (White) to install a compressor and a dual pressure control switch that regulated the compressor. This equipment was already on hand, furnished by the Zavarellis, when White came on the job. Testimony indicated that White moved the compressor from the basement to a storage room that received the maximum amount of sun during the summer months. White was not called back for any repairs or modifications to the equipment after start up of the system in November of 1984.

John Zavarelli, the son of one the owners, testified on deposition that he did most of the electrical wiring on the job. A friend of his, who is a certified electrician, oversaw and inspected most of the electrical work. Zavarelli’s testimony indicated that White hooked up the wires between the switch and the compressor.

White’s employees, Paul Smith and Jack Baird, testified that they did not perform any electrical work on the job. They also testified that it was against union rules for refrigeration technicians to do electrical work.

Sid Pelson of Economy Refrigeration, who had done maintenance work on the equipment, conferred with Creighton Sayles, the fire investigator for Missoula County Rural Fire Department, on the night of the fire. Pelson testified that the wiring between the compressor and the control switch was not the source of a short circuit. He further testified that a short circuit occurred in the control unit itself.

Creighton Sayles testified that the contact points on the dual pressure control switch were the hottest part of the fire, indicating the switch was an ignition source. Although he could not definitely state it was the cause of the fire, the evidence indicated that the switch was the most probable cause. Testimony revealed that paper, cardboard boxes, and clothing were piled next to the compressor. If the contact points of the control switch were the source of ignition, sparks probably came into contact with these combustibles sitting adjacent to the compressor.

Christopherson and the Zavarellis filed a lawsuit alleging that White’s negligent installation of the refrigeration system was the proximate cause of the fire at the O.K. Corral Bar. The District Court granted summary judgment in favor of White. Christopherson and the Zavarellis appeal.

Christopherson and the Zavarellis maintain the District Court erred in granting summary judgment. We disagree.

Our scope of review is the same as the trial court and is a question of law. If as a matter of law no genuine issue of material fact exists, summary judgment is granted.

Summary judgment is proper under Rule 56(c), M.R.Civ.P., when the movant shows that there is no genuine issue as to any fact deemed material, in light of the substantive legal principles entitling the movant to judgment as a matter of law. All reasonable inferences must be drawn in favor of the party opposing the motion. In making its determination on whether to grant a motion for summary judgment, the court must consider the entire record. Smith v. Barrett (1990), 242 Mont. 37, 40, 788 P.2d 324, 326. There are no issues of material fact involved here.

Appellants propound three possible theories of negligence. One, that White was negligent in wiring the switch to the compressor. Two, that White was negligent in moving the compressor from the basement to the storage room. And three, that White was negligent in failing to inspect the points on the switch or warn the owners that these points could become pitted and weld together.

As to the wiring of the switch to the compressor, there is no evidence that the wiring caused the fire. Testimony of Creighton Sayles and Sid Pelson indicates the fire was caused not by the wiring but by the dual pressure control switch contact points.

The Zavarellis contend that White was responsible for the placement of the compressor in the upstairs storage room. Paul Smith, White’s installer, testified that he did not recall making the decision to move the compressor upstairs and that he probably would have advised against it. While a dispute exists on the placement of the compressor, it is not material. Again, the only evidence as to the cause of the fire was the points on the dual pressure control switch. Creighton Sayles testified that while the storage room was an unforgiving environment, the most probable cause of the fire was the dual pressure control switch.

Christopherson maintains that White was negligent in failing to either inspect the contact points on the dual pressure control switch or warn the owners that the contact points, if not properly cleaned and maintained, could pit, which would increase the propensity of the points to arc and weld together.

Jack Baird, White’s technician, testified that normal use and overamperage could cause the points to weld together. However, he testified that when this occurs, the compressor shuts down. He was not aware that it could be a fire hazard. There is no evidence by any qualified witness there was a duty on the part of White to inspect the points or to warn the owners.

The appellants maintain that summary judgment is not appropriate in negligence cases. Hendrickson v. Neiman (1983), 204 Mont. 367, 665 P.2d 219. In Hendrickson we said: “Ordinarily, issues of negligence are not susceptible to summary judgment and are better determined at trial.”Id., at 371, 665 P.2d at 222. However, upholding summary judgment in a negligence case is not inconsistent with our opinions.

In Brohman v. State (1988), 230 Mont. 198, 203, 749 P.2d 67, 70, we said:

“It is true that because of the peculiarly exclusive nature of the concept of negligence, it is the rare personal injury case which may be properly disposed of by summary judgment. (Citations omitted.) [T]he mistake should not be made of supposing that because summary judgment cannot normally be granted in a particular kind of case, the motion should not be granted in an unusual case of the kind in question where such procedure is in fact appropriate, citing Bland v. [Northfolk] & Southern Railway (4th Cir. 1969), 406 F.2d 863, 866.

There is no evidence to support Christopherson’s and Zavarellis’ claim there was negligence on the part of White and such negligence was the proximate cause of the fire.

Summary Judgment under Rule 56 (c), M.R.Civ.R, was properly granted.

Affirmed.

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


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY ALAN HAMM, Defendant and Appellant.
    No. 90-263 and 91-022.
    Submitted on briefs July 25, 1991.
    Decided September 10, 1991.
    250 Mont. 123.
    818 P.2d 830.

      Daniel Donovan, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen.,PaulD. Johnson, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Steven M. Hudspeth, Deputy County Atty., Great Falls, for plaintiff and respondent.
   JUSTICE WEBER

delivered the opinion of the Court.

A jury convicted the defendant, Timothy Allen Hamm (Hamm) of sexual intercourse without consent in the Eighth Judicial District, Cascade County. Pursuant to this conviction and a prior, unrelated conviction of sexual intercourse without consent, the trial court designated and sentenced Hamm as a persistent felony offender. From this conviction and sentence Hamm appeals. We affirm.

The following issues are raised on appeal.

1. Was the evidence sufficient to support the jury’s verdict of sexual intercourse without consent?

2. Did Hamm knowingly, voluntarily, and intelligently waive his right to testify at trial?

3. Did Hamm receive effective assistance of counsel?

4. Was the trial court correct in designating Hamm a persistent felony offender?

Hamm did not testify at the trial; however, he presented witnesses and stipulated that he had sexual intercourse with the victim, D.B. on March 19, 1989. The following facts summarize D.B.’s testimony including facts elicited from her during cross-examination. D.B. testified that the incident charged was the third in a trilogy of forced sexual encounters by Hamm on the victim.

The first rape occurred in October, 1988, while D.B. was watching the children of Hamm’s girlfriend. Assuming that Hamm arrived to pick-up the children D.B. let Hamm into the house. The children were sleeping in another part of the house, and D.B. and her son were sleeping on the couch when Hamm arrived. Hamm grabbed D.B. by the hair, and ordered her to undress. The commotion awoke D.B.’s son and Hamm ordered D.B. to carry the child into another room.

D.B. was frightened of Hamm. She attempted to fight Hamm away and pleaded for him to stop. Hamm turned D.B. away from him and penetrated her. While holding onto D.B.’s hair, Hamm pushed D.B. to her hands and knees and continued raping her. Hamm finally stopped when he realized that his girlfriend’s four-year-old child was in the kitchen observing the rape.

Afterwards, Hamm offered D.B. money if she would not tell his girlfriend of the rape. D.B. refused the money. She did not report this incident to the police; however, D.B. called the Mercy Home, for battered women. D.B. and her children remained at the Mercy Home for three weeks after the incident.

Approximately four months later, in February of 1989, Hamm came to D.B.’s house to apologize to her for the prior rape. She asked Hamm to leave. Hamm told her that he had nowhere to stay whereupon D.B. told him “if you leave me alone, you can stay.”

Hamm went upstairs to sleep and D.B. stayed downstairs on the couch. Sometime later Hamm awoke D.B. and told her to follow him upstairs. D.B. was frightened of Hamm and did not want him to “force her again.” D.B. had sex with Hamm, then went downstairs. D.B. had no phone, but she contacted her neighbor for assistance, and demanded that Hamm leave her house. D.B. did not report this incident to the police either.

The incident charged occurred, March 19,1989. At approximately 1:00 a.m., Hamm appeared at D.B.’s house and accused D.B. of reporting the prior rape to the police. Hamm made advances and when D.B. declined, Hamm accused D.B. of “leading him on.” He grabbed D.B. by the hair and pushed her up the stairs and onto the bed. Hamm ordered D.B. to undress.

Before D.B. had time to undress, Hamm forced his fingers into her vagina. D.B. cried, told Hamm that he was hurting her, and begged him to stop. Instead of stopping, Hamm pushed D.B. onto her stomach, penetrated her anus with his penis, pulled her onto her hands and knees and penetrated her vagina with his penis. Hamm asked D.B. if she enjoyed “forced sex.” Hamm continued raping and abusing D.B. for several hours.

At approximately 7:20 a.m., D.B. got away from Hamm. She went to her neighbor’s apartment, called the police and the Mercy Home, and then went to the hospital for a medical exam. The examining physician testified that he found a bruise on D.B.’s thigh and an abrasion in her vagina. The doctor concluded that force caused the abrasion.

Because Hamm was convicted of another rape on October 12,1989, the District Court sentenced Hamm as a persistent felony offender under § 46-18-501, MCA.

Hamm appealed this sentence and conviction on April 18, 1990. This Court bifurcated Hamm’s appeal by holding some issues in abeyance and remanding the following issues to the District Court for post-conviction evidentiary hearings: (1) Did Hamm voluntarily waive his right to testify at trial; and (2) Did Hamm’s attorney effectively represent Hamm at the trial? The District Court found that Hamm knowingly and voluntarily waived his right to testify; and that Hamm’s attorney provided effective representation.

In this appeal, we have consolidated for our review issues relating to the trial and issues relating to the District Court’s post-conviction determinations.

I.

Was the evidence sufficient to support a verdict of guilty on the charge of sexual intercourse without consent?

Hamm stipulated that he had sexual intercourse with the victim on March 19, 1989. However, he contends that D.B. acquiesced and that the State’s evidence was insufficient to support a guilty verdict.

The State contends that this verdict should not be set aside for insufficient evidence. This Court in viewing the evidence in the light most favorable to the prosecution agrees with the State that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Krum (1989), 238 Mont. 359, 362, 777 P.2d 889, 891.

In order to sustain the conviction of sexual intercourse without consent, the State had to prove that Hamm compelled the victim “to submit by force or by threat of imminent ... bodily injury.” § 45-5-501, MCA. D.B.’s testimony demonstrated that Hamm used physical force to compel D.B. to perform sexual intercourse.

Hamm grabbed D.B. by her hair and forced her up the stairs. Hamm ordered her to undress and asked D.B. if she liked “forced sex.” Hamm repeatedly penetrated her while she cried and pleaded with him to stop. D.B.’s testimony was confirmed by her examining physician who testified that the abrasion discovered on the victim’s vagina after the rape indicated “some degree of force.”

These facts indicate that the jury had substantial evidence to support the conclusion that Hamm compelled D.B. to submit to sexual intercourse by force. Because a rational trier of fact could have found beyond a reasonable doubt the essential element of “without consent”, we hold that the State’s evidence supports Hamm’s conviction of sexual intercourse without consent.

II.

Did Hamm knowingly, voluntarily, and intelligently waive his right to testify at trial?

Defendant contends that he did not knowingly or voluntarily waive his right to testify in his own behalf, and that this Court should require the trial court to inform defendants on-the-record of their right to testify.

The State contends that this Court should uphold the findings and conclusions of the trial court which found that Hamm knowingly and voluntarily waived his right to testify. First, we agree with the State and conclude that the testimony presented during the post-conviction hearing shows that Hamm voluntarily waived his right to testify after conferring with his attorney.

At the post-conviction hearing Hamm’s attorney testified that during a recess, prior to the close of the defendant’s case-in-chief, he advised Hamm not to testify. Hamm’s attorney was afraid Hamm would lose “his cool” on the witness stand and open the door for the prosecutor to bring in evidence of his prior rape conviction. Counsel based his decision on Hamm’s testimony at his prior rape trial. Hamm’s attorney represented Hamm in both rape cases. After conferring with his mother, Hamm agreed with counsel that Hamm should not testify. Hamm admitted he was not surprised when the defense rested and he made no indication to the court or his attorney that he wanted to take the stand.

Because Hamm had exercised his right to testify at his prior rape trial, conferred with his mother after his attorney advised him not to testify, and failed to notify the court of his desire to testify, we agree with the trial court and hold that Hamm knowingly and voluntarily waived his right to testify at trial.

Next, we agree that criminal defendants have a constitutional right to testify under Art. II, § 24, Mont. Const. (1972). State v. Johnson (1986), 221 Mont. 503, 515, 719 P.2d 1248, 1256. To protect this right the defense urges this Court to adopt the procedural safeguards of an on-the-record colloquy by the trial judge to assure the criminal defendant has voluntarily, knowingly, and intentionally waived his right to testify. People v. Curtis (Colo. 1984), 681 P.2d 504, 515.

The State argues that this Court should adopt the majority position of United States v. Martinez (9th Cir. 1989), 883 F.2d 750, 760. In Martinez, the court stated:

“All circuit courts reaching the question have held that courts have no affirmative duty sua sponte to address a silent defendant and inquire whether he knowingly and intelligently waives the right to testify.
“By far the majority of states that have considered the question also have held that courts have no duty sua sponte to advise the defendant of his right to testify and establish on-the-record that this right was waived knowingly and intelligently. Waiver of this right is presumed from the defendant’s failure to testify or notify the court of his desire to do so.
“At least seven reasons have been given for this conclusion: First, the right to testify is seen as the kind of right that must be asserted in order to be recognized. Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afterthought after conviction. Third, by advising the defendant of his right to testify, the court could influence the defendant to waive his right not to testify, ‘thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.’ Fourth, a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment. Fifth, there is danger that the judge’s admonition would introduce error into the trial. Sixth, it is hard to say when the judge should appropriately advise the defendant — the judge does not know the defendant is not testifying until the defense rests, not an opportune moment to conduct a colloquy. Seventh, the judge should not interfere with defense strategy.
“For all these convergent reasons we join other circuits and the majority of states in concluding that the court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred. [Citations omitted.]”

Martinez, 833 F.2d at 760.

The defense also relies on Boyd v. United States (D.C.App. 1991), 586 A.2d 670. In Boyd, the court criticized the Martinez decision; however, it did not require that the trial court conduct an on-the-record inquiry to determine if the defendant knowingly and intelligently waived his right to testify. Boyd, 586 A.2d at 678.

We adopt the foregoing analysis of the Martinez court and conclude that the District Court had no duty to inform Hamm of his right to testify or receive an on-the-record waiver. We also conclude that Hamm waived this right by failing to testify and failing to notify the court that he wished to testify. Therefore we hold that the District Court correctly found that Hamm knowingly and voluntarily waived his right to testify.

III.

Did the defendant receive effective assistance of counsel?

Hamm contends that his defense counsel failed to adequately prepare for trial, failed to interview the State’s witnesses, failed to propose certain jury instructions, failed to investigate the reputation and character of the victim, and failed to call Hamm to testify on his own behalf.

The State argues that under State v. Kolberg (1990), 241 Mont. 105, 109, 785 P.2d 702, 704, Hamm received effective assistance of counsel. In Kolberg we stated:

“Ineffective assistance of counsel requires specific acts or omissions which prejudice defendant’s case and result in the denial of a fair trial... First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense .... To show prejudice, a defendant must show that, but for counsel’s unprofessional errors, there was reasonable probability that the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. (Emphasis added.) (Citations omitted.)”

Kolberg, 241 Mont. at 109, 785 P.2d at 704.

Evidence presented at the post-conviction hearings showed that Hamm’s attorney met with Hamm several times prior to trial, interviewed or obtained statements from all of the prosecution’s witnesses, including the victim, and presented four witnesses for the defense at the trial. Additionally, our review of the trial transcript demonstrates that Hamm’s attorney elicited favorable evidence from D.B. during an extensive cross examination of the victim. Finally, as previously discussed, counsel presented strategic reasons for advising Hamm not to testify.

Hamm did not offer evidence that his attorney’s preparation for trial or presentation of Hamm’s defense was deficient. Further Hamm fails to show prejudice to his defense or that counsel’s actions deprived him of a fair trial. We agree with the District Court and hold that Hamm received effective assistance of counsel.

IV.

Was it error for the District Court to sentence Hamm as a persistent felony offender?

Hamm’s prior felony conviction arose from the rape of another victim, S.A. on February 7, 1989. Hamm was charged and subsequently convicted of this rape on August 17, 1989. On March 19, 1989, while out on bail for the rape of S.A., Hamm raped D.B. On January 17,1990, the jury convicted Hamm of raping D.B. The court sentenced him as a persistent felony offender on February 20, 1990.

Defendant contends that § 46-18-501, MCA, the statute defining a persistent felony offender, does not apply because although he raped S.A. prior to raping D.B., the prior felony conviction of August 17, 1989 occurred after the date he committed the present felony, March 19, 1989.

In defining the persistent felony offender, the statute provides that:

“A ‘persistent felony offender’ is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if: ... less than 5 years have elapsed between the commission of the present offense and ... the previous felony conviction...”

Section 46-18-501, MCA.

This Court rejected a similar argument by the defense in State v. Williamson (1985), 218 Mont. 242, 707 P.2d 530. In that case the defendant was sentenced as a persistent felony offender even though the second offense was committed prior to the first felony conviction. Williamson explains:

“[§ 46-18-501] simply requires a past conviction and a sentencing on a subsequent one ... The prisoner argues that he has, under this statute, a sort of‘window of opportunity’. He can commit all manner of felonies between the time he commits his first felony and his conviction therefor and be immune from persistent felony designation because the five year clock doesn’t start running until after the first conviction. There is no evidence in the statute, or any place else, that the legislature intended to provide such an open season.”

Williamson, 218 Mont. at 246, 707 P.2d at 532-33.

Similarly, in this case we conclude that Hamm falls squarely within the persistent felony offender statute. First the statute requires that the offender have a previous felony conviction and that the offender is currently being sentenced for a second felony. In this case, Hamm meets both requirements because he was convicted of raping S.A. August 17, 1989, prior to his February 20,1990 sentencing in the current proceeding.

Next, the statute requires that the defendant commit the prior felony and the current felony for which he is being sentenced on a different occasion. In this case the offenses occurred on different occasions. The rapes occurred six weeks apart and involved different victims.

Finally, the statute requires that the commission of the present offense be within five years of the previous felony conviction. In this case Hamm committed the present offense on March 19, 1989. On August 17,1989 he was convicted of the prior felony. March 19,1989 to August 17,1989 is clearly within the five year statutory period. We hold that the court acted properly when it sentenced Hamm as a persistent felony offender.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES McDONOUGH, TRIEWEILER and GRAY concur.


author: JUSTICE GRAY JUSTICE HUNT,

text:
    DIRK WALDEN, Plaintiff and Appellant, v. THE STATE OF MONTANA, and The Montana State Highway Department, Defendants and Respondents.
    No. 90-322.
    Submitted on briefs May 10, 1991.
    Decided Oct. 2, 1991.
    Rehearing Denied Oct. 31, 1991.
    250 Mont. 132.
    818 P.2d. 1190.

      Patrick F. Flaherty, Flaherty & Winner, and Dennis Patrick Conner, Great Falls, for plaintiff and appellant.
    MarcRacicot, Atty. Gen., Norman C. Peterson, and Lynn M. Grant, Asst. Attys. Gen., Helena, and Max Davis, Cure, Borer & Davis, Great Falls, for defendants and respondents.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Dirk Walden, appeals from the final judgment entered by the Eighth Judicial District Court, Cascade County. The jury found, by special verdict, that the respondent’s negligence was not a legal cause of the appellant’s injuries. The appellant requests a new trial. We affirm.

The appellant raises the following issues on appeal:

1. Whether the District Court improperly instructed the jury on the State’s duty to maintain its highways.

2. Whether the District Court erred in giving Jury Instruction No. 39 regarding practicability and cost of highway repair.

3. Whether the District Court erred in refusing the appellant’s challenge for cause of a prospective juror.

4. Whether the appellant was denied a fair trial as a result of the District Court’s rulings on the evidence concerning the appellant’s failure to wear a helmet.

5. Whether the District Court erred in allowing certain testimony of the State’s witness concerning bicycle helmets.

On July 20,1987, Walden suffered a serious head injury as a result of a bicycle accident. The accident occurred on the northbound entrance ramp to U.S. Interstate 15 near Great Falls.

Interstate 15 is a divided highway running north and south through Great Falls. The portion of the highway on which the accident occurred is located south of Great Falls on Gore Hill. Near the top of the hill, there is an overpass with an exit ramp allowing southbound traffic to exit the interstate and an entrance ramp allowing northbound traffic to enter the interstate. The entrance ramp descends down Gore Hill a distance of approximately 2,150 feet at a 5 percent grade before it merges with the northbound travel lanes of the interstate.

The interstate was constructed in 1967. The entrance ramps, exit ramps, and shoulders are made of asphalt; the travel lanes consist of concrete slabs 15 feet long, 8 inches deep and 1 lane wide. Where the non-bonding asphalt and concrete meet, a longitudinal “seam” exists.

The concrete is originally poured in one piece. After the concrete sets, “contraction” cuts 3 inches deep are made across the width of the lanes every 15 feet. The cuts serve to control the cracking of the concrete. When the concrete expands and contracts with temperature change, it cracks along the weakened cuts, as intended, forming the individual slabs.

The highway, therefore, is no longer a single structure, and each slab can move independently of the adjoining slab. Heavy truck traffic and natural forces, such as heat, cold, and moisture create “slab faulting.” Slab faulting is the difference in concrete slab elevation that is formed by the shifting of the individual slabs in relation to one another. The movement of the slabs compresses the subgrade material underneath and causes the formation of air pockets. Water eventually fills these pockets and when a heavy vehicle drives over the slab, it exerts inordinate pressure on this water, forcing it to escape. Following the path of least resistance, the water is forced with tremendous energy out of both the contraction cracks between the slabs and the longitudinal seam between the concrete and the asphalt shoulder. In addition to the slab faulting, heavy traffic actually compacts the asphalt on the ramps and shoulders.

The result is that the transitional seam between the asphalt and the concrete spreads apart slightly, and, at various points, the concrete edge will be higher than the asphalt. This was the condition of the seam between the asphalt entrance ramp and the concrete travel lane where Walden had his accident.

On the day of the accident two friends, John Huotte and Andrew Flaherty, were bike riding near Walden’s home in Great Falls and stopped for a visit. Walden decided to join Huotte and Flaherty on the bike ride. The three men hiked to Tenth Avenue South and then decided to proceed up Gore Hill. They hiked single file on the asphalt shoulder of Interstate 15 and up the southbound exit ramp to the top of Gore Hill. After resting at the top of the exit ramp they crossed the overpass and proceeded down the northbound entrance ramp.

Walden was wearing specially designed cycling shoes that he had strapped on to his pedals before starting down the ramp. Huotte was in the lead, followed by Walden and then Flaherty. Testimony at the trial indicated that Walden and Flaherty were “drafting.” Drafting is a technique used by cyclists whereby a cyclist tries to ride in the vacuum created behind the cyclist in front of him or her, in order to generate a greater speed with less resistance.

Huotte and Flaherty agreed that the speed of the three bikes as they neared the bottom of the hill was about 30 miles per hour. Huotte also testified that he could hear Walden pedaling behind him as they approached the end of the entrance ramp.

Walden and Flaherty were traveling slightly faster than Huotte and moved out to Huotte’s left in order to pass him. At the same time, Huotte began to move to his left so that he could get farther away from the guard rail and the debris lying on the shoulder to his right.

The three bikes were virtually side by side as they came to the end of the entrance ramp, and Walden and Flaherty were forced to cross the transitional seam between the asphalt shoulder and the concrete travel lane. Flaherty successfully maneuvered his bike over the seam. Walden’s tires slipped into the seam causing him to lose control of his bike. Walden fell, striking his head; he slid down the highway with his bike for about 70 feet and was still strapped into his pedals when he came to a stop.

The first issue on appeal is whether the District Court improperly Instructed the jury on the State’s duty to maintain its highways. Walden contends that the District Court erred in refusing to instruct the jury on his theory of the case. It is the appellant’s theory that the State has a duty to maintain its highways so that they are reasonably safe for bicyclists. To support this theory, the appellant offered Plaintiff’s Proposed Jury Instruction Nos. 21 and 51. The District Court refused these instructions and instead gave Instruction No. 30 which was patterned after this Court’s holding in Buck v. State (1986), 222 Mont. 423, 723 P.2d 210. Instruction No. 30 was identical to Plaintiff’s Proposed Instruction No. 21, except that it omitted the specific reference to bicyclists and made general reference to “persons and vehicles.” Plaintiff’s Proposed Instruction No. 21 read in part:

“Although the State is not an insurer of one who uses the highways, it is under a duty to keep its highways in a reasonably safe condition for ordinary use thereof, including use by bicyclists. The State’s duty extends to the paved portion of the roadway, and to the shoulders and the adjacent parts thereof.
“It is the further duty of the State to construct and maintain its highways so that no latent nor hidden defect or trap thereon constitutes an unreasonable danger to persons and vehicles, including bicyclists.”

Instruction No. 30 omitted the emphasized portions.

All the given instructions must be read as a whole in determining whether the giving of certain jury instructions constitutes reversible error. If the given instructions, when viewed in their entirety, state the correct law applicable to the case, there is no reversible error. Jacobsen v. State (1989), 236 Mont. 91, 769 P.2d 694.

The appellant contends that the jury was left to speculate about whether the State has a duty to maintain its highways, where bicycle travel is permitted, in a reasonably safe condition for bicyclists. The appellant insists that the State has such a duty and must make certain the interstate is reasonably safe for bicycles, not just “normal” vehicles.

The question for this Court is whether the instructions given to the jury correctly stated the applicable law. The instructions provided:

‘You are instructed that Interstate 15 North and South Great Falls was at all times a public highway. [Instruction No. 10.]
‘You are instructed that under Montana law a bicycle is defined as a vehicle and that Dirk Walden had the right to be riding his bicycle on Interstate 15 at the time of his accident.
“While the State of Montana Department of Highways may by rule prohibit bicycles from being used on interstates or public highways, the State adopted no such rule prohibiting bicycle use on Interstate 15. [Instruction No. 11.]
‘You are instructed that a person operating a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any other vehicle.” [Instruction No. 12.]

When these instructions are read with Instruction No. 30, no room for speculation exists as to whether the duty to maintain the highways extends to bicyclists. The State’s duty is as stated in Instruction No. 30, to maintain its highways “in a reasonably safe condition for ordinary use thereof.” This duty extends to bicyclists if they are permitted on a specified highway. The jury was properly instructed on this rule of law. Whether or not the State breached this duty and whether or not any such breach was the cause of Walden’s injuries were questions for the jury to decide.

The State’s duties with regard to the design, construction, and maintenance of Montana’s highways apply equally to all permitted users, regardless of the user’s status. In other words, automobilists, motorcyclists, bicyclists, pedestrians, and any other permitted users all are entitled to highways that are reasonably safe for ordinary use. Whether or not a given set of circumstances comprises “ordinary use” is a determination to be made by the jury.

The appellant points to a guide published by the American Association of State Highway and Transportation Officials (AASHTO) and the Federal-Aid Highway Program Manual as authority for his argument that the State owes a greater duty to maintain highways for bicycle traffic than the jury instructions reflected. The appellant interprets this literature as mandating that full consideration be given to safely accommodating pedestrian and bicycle traffic on all federal-aid highway projects. However, giving “full consideration” does not translate into a mandatory duty to bicyclists by the State greater than that upon which the jury was instructed.

The AASHTO guide provides guidelines, not strict standards, for the construction and design of bicycle routes. Furthermore, the purpose of the guide is to “provide information on the development of new facilities to enhance and encourage safe bicycle travel.” Nowhere does the guide require the duty to bicyclists that is suggested by the appellant. Likewise, the Department of Transportation Manual does not mandate a State duty to maintain its highways for bicyclists. The literature simply provides guidance for enhancing the safety of motor vehicle and non-motor vehicle traffic by planning for the potential conflict of the two types of traffic.

As we stated in Jacobsen, 236 Mont. 91, 769 P.2d 694, a party assigning error to the giving of jury instructions must show prejudice in order to prevail. The appellant has failed to show how the District Court’s failure to give his Proposed Instruction Nos. 21 and 51 has adversely affected his substantial rights. The jury was properly instructed on the applicable law, and Walden was not denied instruction on his theory of the case. The omitted language making specific reference to bicyclists was appropriately covered by the other instructions.

The second issue raised by the appellant is whether the District Corut erred in giving Jury Instruction No. 39 regarding the practicability and cost of highway repair. The instruction read as follows:

“A public entity is not liable for injury caused by a dangerous condition of its property of which it had actual or constructive notice if it establishes that the action taken to protect against the risk of injury created by the condition or the failure to take such action was reasonable.
“In determining whether it was reasonable, you shall consider the time and opportunity the defendant had to take action and weight [sic] the probability and gravity of potential injury to persons the defendant should have foreseen might be injured against the practicability and cost of protecting against the risk of such injury.” [Instruction No. 39; emphasis added.]

The appellant argues that this instruction provides the State a financial feasibility defense. We disagree. The instruction assists the jury in evaluating the “reasonableness” of the State’s actions. The financial feasibility defense would provide the State with a total escape from liability for failing to properly maintain the highways, based solely on a lack of sufficient finances. This defense has been rejected by our Court “when cost is the State’s sole excuse for its failure to construct or maintain properly.” Townsend v. State (1987), 227 Mont. 206, 210, 738 P.2d 1274, 1277. In this case, the District Court also gave the jury the instruction from Townsend clearly negating the financial feasibility defense. It provided:

“If you find that Defendant State of Montana was negligent in planning, construction, signing or maintaining the highway in question, you may not excuse the State’s negligence on the ground that proper maintenance or lack of [sic] sufficient employees was beyond the financial means of the State of Montana. Lack of adequate funds or an adequate number of employees is not a factor in the duty of the State to plan, construct, sign or maintain its highways in a reasonably safe condition.” [Instruction No. 27; emphasis added.]

The appellant argues that Instruction Nos. 39 and 27 contradict each other and leave the jury to consider a financial feasibility defense. We do not agree. As this Court stated in Modrell v. State (1978), 179 Mont. 498, 501, 587 P.2d 405, 406:

“[R]eliance on cost as the sole and determining factor would be tantamount to assertion of a financial feasibility defense and therefore impermissible. However, where cost is but one among many factors affecting the State’s choice of a particular method of construction or maintenance, it is relevant evidence on the reasonableness of the alterative taken.”

The appellant’s assertion that the State was provided a financial feasibility defense is without merit. The State was entitled to present evidence to the jury regarding the reasonableness of its actions.

The third issue is whether the District Court erred in refusing the appellant’s challenge for cause of a prospective juror. The prospective juror in question expressed his opinion of lawsuits as cases where somebody is “trying to get a quick buck.” He expressed concern regarding the effect of too many lawsuits on the economy of the nation and the State of Montana. He stated that, “I would definitely make it harder on [the appellant] than I would on the State, I’m sure.” Counsel for the State attempted to rehabilitate him by inquiring whether he would be able to set his preconceived opinions aside and follow the court’s instructions. The prospective juror responded, “Yes, I think I could do that.” During the voir dire examination, he also stated, in response to an inquiry from the State’s counsel, that he thought the State of Montana should be liable for its negligent acts if its negligent acts cause injury to a person. The District Court denied the appellant’s challenge for cause and the appellant subsequently used one of his peremptory challenges to remove the prospective juror.

The appellant contends that the prospective juror showed an unqualified opinion or belief as to the merits of the action and that the District Court should have excused him for cause under § 25-7-223(6), MCA. He argues that the court’s refusal to excuse the prospective juror for cause was prejudicial error in that he was compelled to waste one of his peremptory challenges.

The right to peremptory challenges is a substantial right, but not every case of the forced use of a peremptory challenge is grounds for reversal. Abernathy v. Eline Oil Field Services, Inc. (1982), 200 Mont. 205, 216, 650 P.2d 772, 778. In the past, this Court’s practice, in considering the trial court’s refusal to dismiss a prospective juror for cause, has been to reverse only when there is shown an abuse of discretion on the part of the trial court. Abernathy, 200 Mont. at 214, 650 P.2d at 777; Mahan v. Farmers Union Cent. Exchange (1989), 235 Mont. 410, 417, 768 P.2d 850, 855; Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 7, 713 P.2d 527, 531. It is appropriate at this time to clarify our standard of review.

Rule 47(a), M.R.Civ.P., states as follows:

“Examination of jurors. The court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision. The court may supplement the examination by such further inquiry as it deems proper. Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of a challenge.” [Emphasis added.] Under Rule 47(a), whether a prospective juror holds a preconceived opinion as to the merits of the case or is biased or prejudiced against one of the parties is a factual question to be tried by the trial court. Thus, in reviewing the trial court’s decision to deny a challenge for cause, this Court is reviewing a factual determination made by the trial court.

Rule 52(a), M.R.Civ.P, provides that:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

Rule 52(a) itself refers only to findings of fact specially found in actions tried without a jury or with an advisory jury. We have stated that the findings of fact required by Rule 52(a) are “nothing more than a recordation of the essential and determining facts upon which the District Court rest[s] its conclusions of law and without which the District Court’s judgment would lack support.” In re the Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936, 938. Factual determinations made by the trial court when entertaining a challenge for cause do not fall squarely within the scope of Rule 52(a). However, because factual determinations are being made by the trial court, the “clearly erroneous” standard contained within the rule is the most appropriate standard for reviewing the trial court’s decision to deny a challenge for cause. Therefore, in reviewing the trial court’s refusal to excuse the prospective juror for cause, we will reverse only where it is shown that the court’s findings are clearly erroneous.

In applying the clearly erroneous standard to the trial court’s findings, our function is not to decide the factual issues de novo. We will not substitute our judgment for that of the trial court absent a showing that the court’s findings are clearly erroneous, even where there is evidence in the record to support contrary findings. Dennis v. Tomahawk Services, Inc. (1989), 235 Mont. 378, 379, 767 P.2d 346, 347. This is especially true when findings are based on determinations regarding the credibility of witnesses or, as in this case, the credibility of the prospective juror. In such a situation, the trial court must be afforded wide latitude in making its findings because the trial court is in a better position than this Court to determine whether the prospective juror is able to serve impartially. Only the trial court has the opportunity of seeing the prospective juror, hearing the testimony, and noting the manner and demeanor of the prospective juror and the inflections in his or her voice, all of which bear heavily on the determination of credibility.

Turning to the particular facts of this case, our review of the “cold record” indicates that certain statements made by the prospective juror, standing alone, could support a finding of bias or prejudice. However, the prospective juror also stated that he thought he could lay his opinions aside and follow the trial court’s instructions. The trial court had the opportunity to observe the prospective juror and to listen to his testimony, and, based on its observations of his manner, demeanor, and tone of voice, found that he could serve impartially. We cannot conclude that the trial court’s finding was clearly erroneous; thus, we find no clear error on the part of the trial court.

The fourth issue raised by the appellant is whether he was denied a fair trial as a result of the District Court’s rulings on the bicycle helmet issue.

The District Court denied Walden’s motion in limine requesting that the State be precluded from presenting evidence that Walden was not wearing a helmet or that such nonuse of a helmet caused the accident. At the conclusion of the evidence, Walden moved for a directed verdict on the issue of helmet nonuse. This motion was also denied.

The appellant argues that the District Court’s denial of his motions in limine and for a directed verdict unfairly allowed the jury to conclude that the State’s negligence was not the cause of the appellant’s injuries. We disagree.

Montana law does not require bicyclists to wear helmets; thus, the failure to wear a helmet ordinarily does not constitute negligence. Our decision in Kopischke v. First Continental Corp. (1980), 187 Mont. 471, 610 P.2d 668, that negligence could not be predicated upon the failure to wear a seat belt at a time when seat belt use was not required, is instructive in this regard. The issue in Kopischke was whether the trial court erred in not allowing the defendant to introduce a seatbelt defense. We affirmed the trial court, holding that where the plaintiff could not have anticipated the defendant’s negligence in causing the accident, the plaintiff’s lack of use of a seat belt was not admissible to show negligence or reduce damages. Under Kopischke, the evidence concerning the appellant’s failure to wear a helmet was not admissible as to negligence. It was not admitted for that purpose. Here, the District Court specifically instructed the jury that the appellant’s failure to wear a helmet was not a legal cause of the accident and did not constitute negligence.

The evidence also was not admissible on the question of damages under our holding in Kopischke. Thus, the District Court erred in admitting the evidence. In rendering its verdict in this case, however, the jury determined that any negligence of the State was not a legal cause of the appellant’s injury; it never reached the question of damages. Thus, any error on the issue of helmet nonuse was harmless, and the appellant was not denied his right to a fair trial.

The final issue raised is whether the District Court erred in allowing the testimony of Professor Curtis Shirer.

Walden testified in his deposition that he had taken a bicycle safety class at Montana State University. Professor Shirer was the instructor and was called by the State to describe the course material.

The appellant objected to much of Shirer’s testimony on the grounds that it was expert opinion testimony. The State’s response was that Shirer was a fact witness and was “not going to offer in any way his opinion.”

Specifically, Walden objects to four items of Shirer’s testimony. Shirer testified that in his course: he taught the absolute necessity of wearing a helmet when bicycle riding; he told his students that the effect of falling off a bike without a helmet on is much like taking a cantaloupe and tossing it into the air and letting it hit the ground; he gave examples to his students of friends of his that have had helmets save their lives in bicycle accidents; and he told his students of studies that indicate 75 percent of all bicycle fatalities are head injuries.

This testimony was offered as a description of course material Walden had taken at college. If, as asserted by the State, Shirer was a fact witness testifying only about what he taught in the bicycle course, then the State must present connecting facts to show that Shirer taught Walden the material in order to establish the relevancy of the testimony. Rules 104(b), 401, M.R.Evid. The testimony indicated, however, that Shirer did not remember Walden; nor did he recognize Walden after he was pointed out in the courtroom. Furthermore, Shirer testified that some of the material may have been taught in optional classes that Walden had not attended. Under these circumstances, the testimony was not relevant under Rule 401, M.R.Evid., and, therefore, was not admissible under Rule 402, M.R.Evid.

In any event, a nonexpert witness is generally limited to testifying to matters of fact. Estate of Smith (1988), 230 Mont. 140, 749 P.2d 512. Shirer’s testimony had very little factual substance. Shirer’s reference to tossing a cantaloupe into the air and watching it hit the ground is not factual testimony. Simply because this is material Shirer lectured on in his classes does not make it factual testimony. The thrust of the testimony was not the fact that he taught this material, but rather the material itself; and this material was, to a large extent, Shirer’s opinion. A lay witness’ opinion must be helpful to a clear understanding of his testimony or the determination of a fact in issue. Rule 701, M.R.Evid. The descriptive picture painted by Shirer’s testimony failed to serve either of these purposes.

For these reasons, we find the District Court erred in allowing Shirer to testify to the extent he did. The error did not prejudice the appellant, however, since the evidence went only to the question of damages and the jury decided the case solely on the question of liability.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, MCDONOUGH, and WEBER concur.

JUSTICE HUNT,

dissenting:

I dissent from the majority’s opinion and would remand this case to the District Court for a new trial. The majority opinion considered five issues on appeal. I would reverse on Issues II, III, and V.

ISSUE II

Appellant contends the District Court’s offering, over objection, of Jury Instruction No. 39, regarding the practicability and cost of highway construction and maintenance, constituted reversible error. I agree.

The instruction at issue read as follows:

“A public entity is not liable for injury caused by a dangerous condition of its property of which it had actual or constructive notice if it establishes that the action taken to protect against the risk of injury created by the condition or the failure to take such action was reasonable.
“In determining whether it was reasonable, you shall consider the time and opportunity the defendant had to take action and weight [sic] the probability and gravity of potential injury to persons the defendant should have foreseen might be injured against the practicability and cost of protecting against the risk of such injury.” [Emphasis added.]

In essence, this instruction provides the State with a financial feasibility defense. This Court has previously held such a defense is not available to the State. State ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201. Byorth indicated that such a defense was never available to a private party and should not be available to the State. The financial feasibility defense has been before this Court on two occasions subsequent to Byorth. Modrell v. State (1978), 179 Mont. 498, 587 P.2d 405; Townsend v. State (1987), 227 Mont. 206, 738 P.2d 1274. In both decisions, this Court reaffirmed the Byorth holding. The following instruction, which was given in the present case as Instruction No. 27, was approved of by this Court in both Modrell and Townsend:

“If you find that Defendant State of Montana was negligent in planning, construction, signing or maintaining the highway in question, you may not excuse the State’s negligence on the ground that proper maintenance or lack of sufficient employees was beyond the financial means of the State of Montana. Lack of adequate funds or an adequate number of employees is not a factor in the duty of the State to plan, construct, sign or maintain its highways in a reasonably safe condition.” [Emphasis added.]

Neither Modrell nor Townsend dealt with ajury instruction similar to Instruction No. 39. However, in both cases, the issue of a financial feasibility defense was raised at trial, contrary to our holding in Byorth. First in Modrell, then in Townsend, this Court apparently approved the introduction of evidence concerning the financial feasibility of various alternative courses of action by the State. The Court indicated that although Byorth was still the law in Montana, cost could be considered in the jury’s determination of the reasonableness of the State’s action in constructing and maintaining its highways. It was this language upon which the District Court understandably based its decision to give the respondents’ requested instruction concerning cost and practicability, resulting in the clearly contradictory instructions before the jury. Thus, the jury was told on the one hand that cost or financial feasibility was not a defense to any negligence by the State, while at the same time they were instructed to consider cost in determining if the State’s actions were reasonable, i.e., negligent or not negligent. As Justice John C. Sheehy correctly pointed out in his dissent in Modrell:

“I am also of the opinion that there is an irreconcilable conflict between the holding in the majority opinion and our holding in the Byorth case. In Byorth, this Court stated if the State failed to discharge its duty to construct reasonably safe highways, and that failure resulted in injury, the State was liable ‘regardless of [its] personal financial priorities.’ 572 P.2d at 203. Yet here we are stating that financial priorities are a ‘factor’ in determining negligence. Thus we now accord the State what was condemned in Byorth, ‘a defense a private party never had.’ ” 572 P.2d at 203.

Modrell, 587 P.2d at 410.

Faced with these contradictory instructions given by the trial court, there was no way for the jury to determine if cost was or was not a proper factor for their consideration in determining if the State was negligent. I am persuaded this Court’s original analysis set forth in Byorth was correct and that financial feasibility should not be a factor in determining whether the State planned, constructed, or maintained its highways in a negligent manner.

ISSUE III

The third issue considered by the majority concerned the District Court’s refusal of appellant’s challenge for cause of a prospective juror. I accept the majority’s decision that the proper standard of review in this situation should be a clearly erroneous standard. However, even when reviewing the trial court’s decision under this standard, which requires this Court to defer to the decision below unless clearly erroneous, I would reverse on this issue.

The Montana Constitution, art. II, § 26, guarantees the right to a jury trial, and, as we have previously stated, “[c]oncomitant with that right is the right to a fair and impartial jury.” Mahan v. Farmers Union Central Exchange (1989), 235 Mont. 410, 418, 768 P.2d 850, 855. A prospective juror who has demonstrated “an unqualified opinion or belief as to the merits of the action ...” is subject to a challenge for cause. Section 25-7-223(6), MCA. Additionally, the statute provides that a challenge for cause is proper in light of statements by the prospective juror “evincing enmity against or bias in favor of either party.” Section 25-7-223(7), MCA.

The statements made by the prospective juror in this case clearly fall within the statutory criteria for excluding a juror for cause. Even after attempted rehabilitation, the juror was only able to say that he thought he could be impartial and follow the law. This is clearly insufficient. After appellant’s challenge for cause, the prospective juror continued to demonstrate enmity against appellant’s action and bias in favor of the State. Appellant was entitled to have this juror dismissed for cause in light of the juror’s candid admissions of an unqualified opinion and belief as to the merits of the action. Appellant was forced to use a peremptory challenge to disqualify the juror. Appellant used all of his peremptory challenges.

The majority correctly points out that it is reversible error when the trial court, in an abuse of discretion, fails to properly dismiss a juror for cause. Abernathy v. Eline Oil Field Services, Inc. (1982), 200 Mont. 205, 216, 650 P.2d. 772, 778. This principle is unaffected by the majority’s adoption of the clearly erroneous standard in place of the abuse of discretion standard. I would reverse on this issue.

ISSUE V

I agree with the majority’s analysis of the testimony offered by respondents’ witness, Shirer, inasmuch as the majority found the testimony was error. However, the testimony in question was extremely prejudicial, and I would, therefore, reverse and remand for a new trial.

JUSTICE TRIEWEILER concurs with the foregoing dissent of JUSTICE HUNT.