author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

text:
    DARRYL V. WELDELE, Claimant and Respondent, v. MEDLEY DEVELOPMENT, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 86-143.
    Submitted on Briefs Aug. 28, 1986.
    Decided June 25, 1987.
    738 P.2d 1281.
    Warden, Christiansen, Johnson & Berg, Stephen C. Berg, Kalispell, for defendant and appellant.
    Trieweiler Law Firm, Michael C. Prezeau, Whitefish, for claimant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The State Compensation Insurance Fund (State Fund) appeals a Workers’ Compensation Court order setting aside the full and final compromise settlement of respondent Darryl Weldele’s Workers’ Compensation claim.

We affirm.

The dispositive issue on appeal is whether a mutual mistake of material fact, at the time the compromise settlement was entered into, prevented the parties from effectively consenting to the agreement. The Workers’ Compensation Court found that there was and we agree.

In July, 1978, respondent suffered a work-related injury while working for Medley Development in Cascade County, Montana. The State Fund accepted liability for respondent’s injury and paid temporary total disability benefits to him. At the time of the injury, respondent experienced pain from the base of his neck down to his wrist and across his right shoulder and shoulder blade. Several days after the injury, respondent went to a hospital emergency room where he was examined by Dr. George Schemm. Dr. Schemm tested respondent at that time and later testified by deposition that the results of the test were consistent with carpal tunnel syndrome, which is a compression of a nerve in the wrist. Dr. Schemm also testified that he considered thoracic outlet syndrome as an explanation for respondent’s neck and arm pain but that he found no evidence of that problem at that time. Dr. Charles Jennings also examined respondent and found indications of carpal tunnel syndrome and rotator cuff syndrome, the latter being an inflammation of shoulder tendons. Dr. Jennings considered the possibility that respondent had thoracic outlet syndrome, but rejected that diagnosis. In August, 1978, Dr. Schemm operated on respondent to relieve respondent’s carpal tunnel syndrome.

In July, 1980, respondent, with counsel, petitioned the Workers’ Compensation Division for a lump-sum payment of $14,000 as a full and final compromise settlement of his claim. At that time, respondent was still experiencing severe discomfort with his right arm. Respondent testified that both Dr. Jennings and Dr. Schemm assured him prior to his petition that the carpal tunnel syndrome had been treated fairly successfully and that his continuing problems with the rotator cuff syndrome would very probably dissipate over time.

The State Fund claims examiner approved a full and final compromise settlement of respondent’s claim for $14,000. In August, 1980, the Workers’ Compensation Division formally approved the settlement. At that time, the claims examiner believed respondent’s injuries were a right rotator cuff tear, a healed carpal tunnel syndrome on the right side and some chronic pain.

Following the execution of the settlement agreement, respondent experienced increasing difficulties with pain and loss of feeling in his right shoulder and arm. Respondent saw a number of doctors in attempting to resolve his problems. Beginning in 1982, several doctors mentioned the possibility that respondent might be suffering from thoracic outlet syndrome. Generally, thoracic outlet syndrome is a compression of, or pressure on, certain nerves and/or arteries in the chest around the collarbone area which can have serious effects on the shoulders, arms and hands of the afflicted.

In 1982, Dr. Bonvallet diagnosed respondent as having symptoms of thoracic outlet syndrome on the right side. He performed an operation on respondent in November, 1982, to attempt to relieve the thoracic outlet syndrome. During the course of the operation, Dr. Bonvallet made objective findings consistent with that condition. He later testified that he thought that it was more probable than not that respondent’s 1978 work injury was the cause of the thoracic outlet syndrome symptoms. Initially, the operation was very successful in relieving respondent’s discomfort. Within two months, however, respondent’s symptoms had returned almost to the same degree. In October, 1983, respondent quit his job on the advice of his doctors and because of worsening symptoms. He has not been employed since then.

In January, 1985, Dr. Oreskovich diagnosed respondent as suffering from thoracic outlet syndrome on the left side. He testified by deposition that he thought respondent developed thoracic outlet syndrome because of the 1978 work-related injury. He stated that he knew that within a reasonable degree of medical certainty. Dr. Oreskovich also stated that thoracic outlet syndrome is difficult to diagnose. Dr. Bonvallet agreed with Dr. Oreskovich on this point and added that, in his experience, patients suffering from thoracic outlet syndrome are commonly misdiagnosed for three or four years. In June, 1985, Dr. Oreskovich operated on respondent and performed a first rib resection on the left side in an attempt to relieve the thoracic outlet syndrome. During the operation, this doctor also made objective findings confirming his diagnosis of thoracic outlet syndrome.

In May, 1985, respondent requested his case be reopened on the grounds that it had been settled due to a mutual mistake of a material fact. The allegedly mistaken fact was the nature, and extent, of respondent’s medical condition. The State Fund declined to reopen the case. The court held a hearing on respondent’s petition in October, 1985, and in January, 1986, the court issued its decision.

The court found that at the time of the settlement agreement both the respondent and the State Fund’s claims examiner, believed that respondent’s injuries were limited to a healed carpal tunnel syndrome and a rotator cuff problem. The court also found that respondent is suffering from thoracic outlet syndrome, which condition resulted from respondent’s 1978 work injury. The court ruled that both parties were operating under a mutual mistake of material fact in entering the settlement agreement. Therefore, the court held that respondent was entitled to reopen the settlement.

Generally, Section 39-71-204, MCA, limits the power of the Workers’ Compensation Court to amend a compromise settlement:

“Except as provided in 39-71-2908, the division of the workers’ compensation judge shall not have the power to rescind, alter, or amend any order approving a full and final compromise settlement of compensation.”

Section 39-71-204(2), MCA.

Under Section 39-71-2908, MCA, the Workers’ Compensation judge may, within ten days of the judge’s receipt of the order, disapprove an order allowing a full and final compromise settlement. “This Court has held in several cases that these statutes preclude reopening of [sic] Workers’ Compensation settlements.” Sollie v. Peavey Co. and Travelers Indemnity Co. (Mont. 1984), [212 Mont. 197,] 686 P.2d 920, 41 St.Rep. 1684.

However, in Kienas v. Peterson (Mont. 1980), 624 P.2d 1, 37 St.Rep. 1747, opinion on rehearing, 38 St.Rep. 320, this Court established that under ordinary contract law a full and final compromise settlement could be set aside if the parties to the agreement were operating under a mutual mistake of material fact. We said “a universally accepted tenet of contract law, statutory in our state, that consent to the contract is lacking if it is entered into through mutual mistake of a material fact by the parties.” Kienas, 38 St.Rep. at 321. It is welk settled that if there is no consent, there is no contract. Section 28-2-409, MCA, states that:

“Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in:
“(1) an unconscious ignorance or forgetfulness of fact, past or present, material to the contract; or
“(2) belief in the present existence of a thing material to the contract which does not exist or in the past existence of such a thing which has not existed.”

In Kienas, we allowed the claimant to reopen his full and final compromise settlement because neither party to the agreement realized that Kienas’ work-related injury could have aggravated or accelerated his prior condition of cerebral palsy.

Here, the Workers’ Compensation Court found there was a mutual mistake of fact. From the record before us we find there is more than sufficient evidence to support the finding by the lower court of mutual mistake by the parties. This case is similar to Kienas on that issue and we find that case to be controlling. Claimant Weldele and the appellant were mistaken as to the thoracic outlet syndrome. All doctors interviewed in this case testified that thoracic outlet syndrome is very difficult to diagnose. One specialist stated the syndrome is frequently misdiagnosed for three or four years. The doctors who treated the claimant for this syndrome believed the syndrome was caused by his 1978 accident. This syndrome is uniquely difficult to diagnose. The evidence shows an unconscious ignorance of a material fact on the part of both parties upon which the final settlement was based.

The need to fairly compensate the injured worker is the intent and the purpose of the Workers’ Compensation law. Kienas v. Peterson (Mont. 1980), 624 P.2d 1, 3, 37 St.Rep. 1751. We find the final compromise settlement was correctly set aside by the Workers’ Compensation Court.

We affirm the decision of the Workers’ Compensation Court.

MR. JUSTICES HARRISON, SHEEHY and WEBER concur.

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent.

In my view, the Kienas decision, which the majority found to be controlling, should not be used as authority in this case. In Kienas, the claimant, who was not represented by counsel, entered into a full and final compromise settlement for a payment of $4,040, where the claim involved potential payments in excess of $115,000. The Workers’ Compensation Court refused to set aside the settlement, and on appeal, this Court, finding the case to be unique, applied contract law and reversed and remanded, without discussing Section 39-71-204, and Section 39-71-2909, MCA, which limits the power of the Workers’ Compensation Court to rescind, alter, or amend an order approving a final compromise settlement. Upon rehearing Kienas, this Court considered Section 39-71-204, MCA and Section 39-71-2909, MCA, stating the following:

“Petitioner argues that the Workers’ Compensation Court had no power to alter or rescind a full and final compromise settlement agreement four years after the parties had executed the same. Section 39-71-204, MCA. However, in Kienas, the Workers’ Compensation Court did not set aside the agreement. This Court set aside the agreement. Our appellate power is not limited to Section 39-71-204 nor 39-71-2909, MCA. See section 3-2-204, MCA. (Emphasis added.)”

Kienas, 37 St.Rep. at 321.

In this case, the claimant was represented by a highly qualified, experienced attorney who presented the petition for full and final compromise settlement in July 1980, and obtained approval in August 1980. The request to reopen was not made until May 1985, more than four years after the order approving final compromise settlement.

The Workers’ Compensation Court was created by the legislature and can only act within the jurisdictional limits established by the legislature. The majority here has, in my opinion, extended the Kienas doctrine by ignoring the jurisdictional limits of Section 39-71-2909, MCA, and this Court’s opinion on rehearing Kienas.

As an additional basis for dissent, I' note that Section 28-2-409, MCA, requires an unconscious ignorance of a past or present fact, material to the contract.

For application of that Section I quote the following:

“The courts have frequently stated, as a general principle of the law of mistake, that in order to support a claim for relief the mistake relied upon must have been as to a past or existing fact, and that future developments are matters of opinion only and mistakes as to such matters cannot be the basis for relief from a contract.
“This principle has frequently been invoked in cases where an attempt was made to avoid a release allegedly executed under a mutual mistake as to the nature and extent of the releasor’s injuries, the claim usually being made that the mistake was only as to the prognosis of known injuries, and so related only to opinion. This requirement that the mistake must have been as to an existing fact has also given rise in several jurisdictions to a rule that the mistake must have been as to an existing but unknown injury, and that no relief will be afforded because of a mistake as to the consequences or developments of an injury known to have existed at the time the release was executed. (Emphasis added.)”

Annot., 71 A.L.R.2d 82, 100 (1960).

In my opinion, this case should be reversed on the basis of Sollie v. Peavey Co. (Mont. 1984), [212 Mont. 197,] 686 P.2d 920, 41 St.Rep. 1684.

MR. CHIEF JUSTICE TURNAGE concurs in the foregoing dissent of MR. JUSTICE GULBRANDSON.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY

license: Public Domain

text:
    In re the MARRIAGE OF J.J.C., Petitioner and Appellant, and P.R.C., Respondent and Appellee.
    No. 86-239.
    Submitted on Briefs Jan. 29, 1987.
    Decided June 25, 1987.
    Rehearing Denied July 21, 1987.
    739 P.2d 465.

      Cotter & Cotter, Michael W. Cotter, Great Falls, Richard Lynn Ducote, New Orleans, La., for petitioner and appellant.
    Ryan & McAllister, Robert W. Heilig, Crowley, Haughey, Hanson, Toole & Dietrich; Bruce R. Toole, Moses Law Firm, Charles T. Moses, Billings, Paula Jampsa, Great Falls, for respondent and appellee.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal brought by both parties from a marital dissolution order of the Eighth Judicial District, Cascade County, awarding wife custody of the parties’ only child, child support and a $15,000 property settlement, while denying her request for attorneys’ fees. We affirm.

J.J.C. and P.R.C. were married in October, 1979. However, within a very short time, problems arose and by July, 1980, wife had moved out of the couple’s house and had returned to her home in Great Falls.

Wife was pregnant at the time of the separation and in August, 1980, gave birth to a son named J.C. This separation proved to be more or less final, and although the parties made many attempts at reconciliation and stayed at each other’s houses frequently, they never resumed their marital relationship. Husband filed for dissolution in May, 1981. Their last cohabitation was in January, 1983.

Wife was given temporary custody of J.C. until trial on the issues of child custody, child support and distribution of property could be had. However, in 1984, while the case was still pending, husband moved for temporary custody, claiming that J.C. had been sexually molested by a boyfriend of wife’s. A hearing was held on July 9, 1984, after which custody was transferred to husband. The District Court granted wife visitation rights, providing that she discontinue her relationship with the boyfriend. She did.

While the marriage was finally dissolved in the spring of 1985, the issues of child custody, child support and distribution of the marital property were not settled until after a trial held in October and November, 1985. In March, 1986, the District Court issued its formal decree, granting custody of J.C. to wife, awarding wife $275 child support per month and $15,000 cash in lieu of the division of the marital estate. The court refused wife’s request for attorney’s fees. Both parties now appeal.

The first issue raised by husband is whether the District Court erred in awarding custody of J.C. to wife. The second issue is raised by both husband and wife. Both claim the District Court erred in dividing the marital property. Additionally, wife claims the District Court erred in its determination regarding the amount of child support awarded, erred by failing to compel husband to make full financial disclosure, and erred by refusing to award P.R.C. attorney’s fees.

We will address the custody issue first. Husband asserts that the District Court abused its discretion by granting custody to wife in the face of evidence suggesting that J.C. was sexually abused while under wife’s care and may be at risk of further abuse. He also asserts that the court ignored evidence in making its findings of fact under sec. 40-4-212, MCA.

Section 40-4-212, states:

“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 parent 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.”

Husband concedes that the District Court made sufficient findings on the elements contained in Subsections 1, 2 and 4, but argues that it ignored evidence in making findings regarding Subsections 3 and 5. Husband asserts that the trial court did not consider all the available evidence when it considered Subsections 3 and 5. We disagree.

In support of his argument that the trial court ignored evidence that weighed to his advantage regarding wife’s mental health, husband points to the negative evidence available suggesting that she was hallucinatory and suffered from delusions. This Court notes that the trial court seriously considered this testimony, but that it weighed it against expert and character witnesses attesting to wife’s overall good mental health and emotional improvement. This is the role of the trial court. “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.” In Re Marriage of Obergfell (Mont. 1985), [218 Mont. 83,] 708 P.2d 561, 563, 42 St.Rep. 1414, 1417, see also In Re the Marriage of Nalivka (Mont. 1986), [222 Mont. 84,] 720 P.2d 683, 43 St.Rep. 1079.

In a parallel argument, husband asserts that the District Court ignored the evidence he presented that wife was ineffective in disciplining J.C. He maintains that this evidence is central to the court’s findings pertaining to Subsection 3, and that the District Court did not effectively address “the interaction and interrelationship of the child with his parent or parents ...”

It is clear to this Court that when the District Court weighed the evidence, it gave ample attention to the facts argued by husband. Nonetheless, custody was awarded to wife. The arguments presented to this Court do not suggest that the trial court erred. There is no clear showing that the trial court abused its discretion in concluding that custody go to wife. None of the factors of sec. 40-4-212 have been overlooked in reaching the conclusion. The trial court’s findings were sufficiently explicit and supported by substantial evidence. We affirm its decision.

Finally, husband points to evidence suggesting that wife’s boyfriend sexually abused J.C. and argues that the District Court failed to fully consider the implications of awarding the custody to wife. We disagree. The District Court found:

“Although never confirmed, the alleged perpetrator of the molestation was an acquaintance of Respondent. Upon learning of the molestation, Respondent immediately severed contact with the alleged perpetrator. There is no evidence to indicate that Respondent was in any way involved in the sexual molestation. In this regard, Dr. Krajacieh, the child’s psychologist, testified that he did not think that Respondent knew of, was present during, or participated in the sexual abuse of the child.”

This Court will not substitute its judgment for that of the trier of fact. In this case, the trial court is in the best position to observe the witnesses and acquire a feel for their credibility and character. The evidence presented in husband’s argument to this Court is the same as that presented to the trial court. Husband’s evidence does not outweigh the substantial credible evidence justifying the award of custody to wife.

The second issue, raised by both husband and wife, is whether the District Court erred in dividing the marital property. The District Court ordered husband to pay wife $15,000 over a two-year period. Husband had requested that wife be given nothing, arguing that she had contributed nothing to the marriage. Wife requested that she be given half of the net marital estate. The District Court explained its conclusion:

“Although the parties were married only a relatively short period of time before the Petition for Dissolution was filed and although [wife] did not contribute financially to the marriage, I do not conclude that [wife] is not entitled to anything as proposed by [husband]. The decision that [wife] quit her job was a joint one. It allowed the parties to be able to spend more time together and to travel. While it is true that the parties could have had children even if [wife] had not quit work, the fact is that [wife] did become pregnant shortly after the marriage, which was the intention of the parties. Because of this, I conclude that [wife] is entitled to something although certainly not half as requested by her. Because the parties did not acquire any property jointly and because of the nature of the property and the manner in which the issue was submitted, I conclude that the only equitable and reasonable way in which the property can be apportioned is for [husband] to make a cash payment to [wife] and I determine that under the circumstances of this case a reasonable amount would be $15,000 which could be paid over a period of 2 years. In addition [wife] should be entitled to keep the. various items of personal property which were given to her during the marriage and which she now has in her possession.”

Wife contends that the trial court did not properly assess her contribution to the estate, arguing that her contribution as a wife and mother should be given equal weight against husband’s monetary contribution for the purposes of dividing the marital property, even though husband provided the bulk of the marital estate. She cites Jacobson v. Jacobson (1979), 183 Mont. 517, 600 P.2d 1183, to support her proposition. We note that Jacobson concerns distribution of a family ranch after a 25 year marriage. The investment of ithe wife in that case is easily distinguished from the instant case, where the wife’s nonmonetary contributions were minimal and the marriage was short in duration.

“This Court’s function ... is not to substitute its judgment in place of the trier of facts but rather it is ‘confined to determine whether there is substantial credible evidence to support’ the findings of fact and conclusions of law. (Citations omitted.) Although conflicts may exist in the evidence presented, it is the duty and function of the trial judge to resolve such conflicts. His findings will not be disturbed on appeal where they are based on substantial though conflicting evidence. (Citations omitted.)”

In re the Marriage of Gallinger & Weissman (Mont. 1986), [221 Mont. 463,] 719 P.2d 777, 780-781, 43 St.Rep. 976, 981; Marriage of Wessel (Mont. 1986), [220 Mont. 326,] 715 P.2d 45, 50, 43 St.Rep. 405, 411-412.

Both wife and husband have failed to show that the court’s evaluation of their contributions was arbitrary, without conscious judgment or beyond the bounds of reason. We find substantial evidence to support the District Court’s finding that wife made no contribution toward the acquisition or preservation of husband’s estate. We also hold that the District Court properly ordered the $15,000 payment to wife rather than force division of property in which she had only a brief interest. Further, we believe the District Court correctly refused husband’s argument that wife receive nothing; for in fact wife did leave her job to care for their child and contributed as a homemaker in their relatively brief period of cohabitation.

As part and parcel of her argument regarding distribution of the marital estate, wife argues that the District Court erred by failing to compel husband to make full financial disclosure. Wife presents insubstantial evidence detailing the specifics of her charge. Clearly, husband’s representations and inconsistencies over the amount of his estate were presented in full to the District Court. As we have stated before, the District Court’s judgment will not be altered without a showing of clear abuse of discretion. The test of discretion is whether the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason, resulting in substantial injustice. In re the Marriage of Gallinger & Weissman, supra. The District Court’s findings were sufficient to support its property division in this matter.

Wife further contends that the District Court acted arbitrarily in determining that J.C. had financial needs of approximately $450 per month, and that this justified a child support payment to her from husband of $275 per month. Wife argues that husband’s schedule of J.C.’s financial needs showed $1,044 per month while her assessment suggested the support of J.C. cost $630 per month.

The District Court found that if the marriage had not been dissolved, the child would have enjoyed a very good standard of living and determined his support costs to be $450 per month. The District Court made this assessment based on substantial evidence placed in the record by the parties relating to J.C.’s physical, medical and emotional needs. Again, there is nothing to suggest that the District Court erred in reaching the support figures.

Finally, wife argues that the trial court erred in failing to award her attorney’s fees. She asserts that husband’s conduct has been vexatious, harassing and unreasonable under the circumstances, directing this Court’s attention to matters not within the record on this appeal. She argues that husband’s activities have resulted in needless legal proceedings, again pointing in part to matters not within this record.

The awarding of attorney’s fees is governed by Section 40-4-110, MCA. The standard for reviewing a district court’s decision not to award attorney’s fees under Section 40-4-110 is whether the court abused its discretion in refusing to award such fees. In re Marriage of Nalivka (1986), [222 Mont. 84,] 720 P.2d at 688, 43 St.Rep. at 1085; In re Marriage of Gallinger & Weissman (Mont. 1986), [221 Mont. 463,] 719 P.2d 777, 43 St.Rep. 976. Wife argues that the trial court abused its discretion because it failed to state reasons for the denial. In the past, this lack of specificity would have constituted remandable error. However, this Court, in In re the Marriage of Gallinger & Weissman, specifically overruled that requirement, adopting instead the “abuse of discretion” standard for reviewing the District Court’s award of attorney’s fees.

In this case, we hold the trial court did not abuse its discretion in refusing to award the wife her attorney’s fees. The record indicates the court was well aware of the financial resources of both parties, and, although the wife was clearly not in as strong a financial position as the husband, the record indicates she still has sufficient financial resources to be responsible for her own attorney’s fees.

Affirmed.

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


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

text:
    ROBERT D. NELSON, Claimant-Appellant, v. ASARCO, Inc., Employer, Defendant & Respondent.
    No. 86-370.
    Submitted on Briefs March 5, 1987.
    Decided June 25, 1987.
    739 P.2d 943.

      Smith Law Firm, Robert J. Sewell, Jr., Helena, for claimant-appellant.
    Hughes, Kellner, Sullivan & Alke, Stuart L. Kellner, Helena, for employer, defendant & respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Robert Nelson appeals a July 14, 1986, decision of the Workers’ Compensation Court which denied Nelson’s claim for compensation benefits. We affirm.

Nelson presents two issues for our review:

1. Did substantial credible evidence support the Workers’ Compensation Court’s conclusion that Nelson failed to establish an injury arising out of and in the course of his employment?

2. Did substantial credible evidence support the Workers’ Compensation Court’s conclusion that Nelson failed to meet the sixty-day notice requirements of Section 39-71-603, MCA?

On February 10, 1979, at age fifty-two, Robert Nelson began working for ASARCO at its East Helena smelter. On April 25, 1982, Nelson was working the day shift at the smelter. Nelson alleges that while operating the front-end loader and moving ore bodies around the yard, he stepped down to remove a forty-to-fifty pound ore body from the bucket. Nelson claims that he momentarily lost his equilibrium, felt a sense of general weakness and lost sensation in his hands and arms. He testified that his foreman, Reuben Hagen, grabbed Nelson to prevent him from falling and asked if Nelson was all right. Nelson recovered and finished working his shift. Nelson did not work on April 26 and 27, 1982, due to a sickness reported as a cold.

On April 27, 1982, Nelson complained to Dr. Jerome Kremer of pain in his left knee. Nelson did not mention any pain in his shoulder, arm or hand. He returned to work on April 28, 1982, and worked regular shifts until May 24, 1982. On May 6, 1982, Nelson saw Dr. Kremer again, this time complaining of shoulder, arm and hand discomfort.

On May 19, 1982, both Dr. Kremer and Dr. David Bossier reexamined Nelson and diagnosed Nelson as having thoracic outlet syndrome. At no time did Nelson advise Dr. Kremer or Dr. Bossier that he had injured himself in an accident at the ASARCO smelter. On May 27, 1982, Dr. Bossier, assisted by Dr. Kremer, surgically resected Nelson’s first right rib to relieve the thoracic outlet syndrome. On June 17, 1982, Dr. Bossier, assisted by Dr. Kremer, surgically resected Nelson’s left first rib.

During the time between the two rib resections, Nelson claimed benefits under ASARCO’s health plan. Nelson was given a blank statement of claim form and advised how to complete it. One line of the claim form requested detailed information if an accident was involved. Nelson left this line blank. Nelson also failed to sign the claim form, but the office secretary signed the form so it could be processed. Between May 28, 1982, and February 24, 1983, under ASARCO’s health plan, Nelson received $6,475 in weekly benefits and $18,353 in medical benefits.

Dr. Kremer and Dr. Bossier continued to see Nelson until November 1982, at which time he was referred to Dr. George Schemm, a neurologist, for consultation regarding persistent complaints in Nelson’s upper extremities. On December 15, 1982, Dr. Schemm surgically performed a cervical láminectomy on Nelson to relieve cervical spondylosis.

On July 14, 1983, fifteen months after the alleged incident, Nelson filed a claim for workers’ compensation benefits. On August 4, 1983, ASARCO denied the claim. On October 10, 1985, the case was heard before an examiner, who determined that Nelson was not entitled to workers’ compensation benefits. On July 14, 1986, the Workers’ Compensation Court adopted the hearing examiner’s proposed findings and conclusions. Nelson appeals that decision.

Issue 1

Did substantial credible evidence support the Workers’ Compensation Court’s conclusion that Nelson failed to establish an injury arising out of and in the course of his employment?

The hearing examiner concluded that Nelson “has not carried the burden of proving that his alleged injury of April 25, 1982, was an injury arising out of and in the course of his employment as required by Sections 39-71-119(1) and 39-71-407, MCA.”

Section 39-71-119(1), MCA, defines an injury as “a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm ...”

Section 39-71-407, MCA, states: “Every insurer is liable for the payment of compensation ... to an employee of an employer it insures who receives an injury arising out of and in the course of his employment . . .”

Nelson contends that the most reasonable conclusion to be drawn, from all the facts and circumstances presented at trial, is that he suffered a compensable injury while on the job at ASARCO on April 25, 1982. Nelson asserts that the strain caused by moving the ore body out of the bucket is medically consistent with causing the onset of his symptoms, and that there is no medical evidence to the contrary.

ASARCO contends that neither Nelson nor anyone on his behalf gave ASARCO notice on April 25, 1982, or within sixty days thereafter, of the time and place where an accident had occurred, or the nature of any injury resulting from such accident. Furthermore, Nelson did not inform any of his three doctors that he incurred a work-related injury on April 25, 1982. ASARCO argues that Nelson, beyond his own testimony, presented no objective evidence indicating that he suffered any type of injury on April 25, 1982. Given Nelson’s evidence, ASARCO concludes that the Workers’ Compensation Court correctly determined that Nelson failed to meet his burden of proof in establishing a work-related injury.

When reviewing a decision of the Workers’ Compensation Court, we will not substitute our judgment for the trier of fact unless the decision was clearly erroneous. Although factual conflicts may exist, we will not disturb the court’s decision when it is supported by substantial credible evidence. Tenderholt v. Royal Insurance Company of America (Mont. 1985), [218 Mont. 523,] 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1795.

The burden was on Nelson to prove, by a preponderance of credible evidence, that a work-related incident was a contributing cause to his work-related injury. Dumont v. Wickens (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. In attempting to prove the incident, Nelson testified that his foreman, Reuben Hagen, helped Nelson regain his balance and that Hagen asked if Nelson was all right.

Nelson’s testimony conflicts directly with the testimony of Reuben Hagen, who stated that he and his wife were in New York City on April 25, 1982, and did not return to East Helena until 10:00 p.m. that day. Hagen’s testimony was supported by ASARCO pay slips, which showed Hagen on vacation on April 25, 1982.

In addition, Nelson’s conduct following the alleged incident did not indicate that an injury occurred. Nelson missed work on April 26 and 27, 1982, due to a cold, not an injury. He continued to work regular shifts through May 24, 1982, without any indication of an injury. Although Nelson underwent surgery on May 27 and June 17, 1982, he did not advise either physician about his alleged injury.

Nelson’s testimony was effectively rebutted by his doctors, who believed that the condition they were treating was unrelated to any trauma from Nelson’s occupation. Dr. Kremer testified about thoracic outlet syndrome in the following exchange:

“Q. Based on your past experience with these kinds of problems, do you have an opinion as to how they typically manifest themselves? By that, I mean, is it a sudden onset, or do they develop over time progressively?
“A. It’s a very gradual onset because the muscle doesn’t suddenly hypertrophy. It isn’t something that occurs overnight. It’s something that slowly builds up . . .”

Dr. Kremer also testified that Nelson’s alleged incident could not cause thoracic outlet syndrome:

“Q. Doctor, in your opinion, was Mr. Nelson’s scalenus anticus syndrome or thoracic outlet syndrome caused by his attempting to lift a 40-pound piece of ore off the ground at ASARCO within a month or two prior to your first examination?
“A. No. There’s no way that a single situation can cause that to happen.”

Furthermore, Dr. Bossier testified that thoracic outlet syndrome is a congenital problem. Dr. Bossier also testified that in his twenty-six years of medical practice, he has never seen a case of traumatic thoracic outlet syndrome and that Nelson had no evidence of trauma:

“Q. During that surgery, did you find anything that would be indicative of trauma that occurred recently or prior to surgery?
“A. No.”

Dr. Schemm testified that Nelson’s cervical condition arose gradually from a combination of factors:

“I think that his kind of problem is usually due to a combination of things, or abnormal problems. In other words, perhaps starting out with a narrow canal from earlier life, and then having, in addition, these wear and tear changes in the spinal canal and the joints of the spinal canal. However, individual trauma can accelerate that kind of process, or add to it.”

Dr. Schemm also testified that Nelson’s condition was consistent with the diagnosis of thoracic outlet syndrome, and that the condition existed for a considerable period of time prior to April 25, 1982.

In conclusion, we will accord deference to the Workers’ Compensation Court’s judgment as to the weight and credibility of conflicting evidence. Frost v. Anaconda Company (Mont. 1985), [216 Mont. 387,] 701 P.2d 987, 988, 42 St.Rep. 889, 891. In the instant case, the court reviewed all the pleadings, exhibits, depositions and testimony. As we held in Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 86-87, 580 P.2d 450, 453: “We cannot substitute out judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn that decision.”

We have repeatedly held that the claimant bears the burden of establishing a right to compensation. Gierke v. Billings Gazette (Mont. 1986), [224 Mont. 446,] 730 P.2d 1143, 1148, 43 St.Rep. 2322, 2329. Nelson has failed to prove that he suffered an injury on April 25,1982. We hold that the preponderance of substantial credible evidence fully supports the decision of the Workers’ Compensation Court. We affirm on this issue.

Issue 2

Did substantial credible evidence support the Workers’ Compensation Court’s conclusion that Nelson failed to meet the sixty-day notice requirements of Section 39-71-603, MCA?

Section 39-71-603, MCA, states:

“No claim to recover benefits under the Workers’ Compensation Act, for injuries not resulting in death, may be considered compensable unless, within 60 days after the occurrence of the accident which is claimed to have caused the injury, notice of the time and place where the accident occurred and the nature of the injury is given to the employer or the employer’s insurer by the injured employee or someone on the employee’s behalf. Actual knowledge of the accident and injury on the part of the employer ... is equivalent to notice. [Emphasis added.]”

The Workers Compensation Court adopted the conclusion of the hearing examiner, who stated:

“The claimant did not present by a preponderance of the credible evidence any proof that sufficient notice was given to the employer to satisfy the requirements of the statute. The evidence supported the conclusion that the employer had no notice of the alleged injury for almost 400 days after the incident. This far exceeds the 60-day statutory maximum and requires the denial of the claim. [Emphasis added.]”

Nelson contends that the claim period did not begin to run until Nelson had reason to recognize the serious nature of his problem. Nelson asserts that this recognition did not occur until November of 1982.

However, our review of the record shows that Nelson plainly understood the requirements and procedure for reporting an injury. He had properly reported two injuries to ASARCO within the preceding three years. Furthermore, Nelson was instructed on the differences between workers’ compensation and the ASARCO health plan at his employee orientation conference in 1979. Yet Nelson made no mention of his alleged injury to ASARCO for approximately one year after the alleged incident.

Nelson underwent two surgeries for thoracic outlet syndrome, but never told Dr. Bossier or Dr. Kremer about the alleged incident. Dr. Kremer testified: “This is one of the first questions you ask them, ‘How did it happen?’ Never was there a mention of it on the job or any kind of injury.” Dr. Schemm’s first knowledge of the incident occurred just prior to his deposition in December 1985, when Nelson’s attorney told Dr. Schemm that Nelson may have injured himself on April 25, 1982.

Nelson had ample opportunity to notify ASARCO and his physicians of his alleged injury. We fail to see how Nelson, through two surgeries and multiple medical visits, could possibly misunderstand the seriousness of his condition. His alleged injury on April 25, 1982, appears to be the product of inspiration, not recognition. We hold that Nelson failed to meet the notice requirements of Section 39-71-603, MCA.

We affirm the Workers’ Compensation Court on both issues.

MR. JUSTICE HARRISON and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

specially concurring:

I concur in the result.

MR. JUSTICE HUNT,

specially concurring:

Because claimant failed to give notice in 60 days as required by Section 39-71-603, MCA, I concur in the result.


author: MR. JUSTICE McDONOUGH

text:
    CHARLES MONTGOMERY, Plaintiff and Respondent, v. DARREL L. HUNT and Anthony E. Brown, Defendants and Appellants.
    No. 86-457.
    Submitted on Briefs May 7, 1987.
    Decided June 25, 1987.
    738 P.2d 887.

      Patrick F. Flaherty, Great Falls, for defendants and appellants.
    Donald L. Shaffer, Libby, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Darrel L. Hunt and Anthony E. Brown, defendants/appellants, appeal the judgment of the Nineteenth Judicial District Court awarding judgment to the plaintiff/respondent Charles A. Montgomery in the amount of $5,000 and denying Hunt and Brown’s motion to discharge or in the alternative quash the writ of attachment and dismissing the counter claim of Hunt and Brown. The issue presented to this Court by Hunt and Brown is whether the District Court erred in issuing the writ of attachment. We affirm.

Hunt and Brown borrowed $5,000 from Montgomery and executed and delivered a promissory note as evidence of the debt. The note was due December 27, 1985 and was not paid on the due date. This action was commenced upon the note on January 3,1986. Montgomery moved the court for a writ of attachment filing an affidavit of attachment, and an attachment bond. Hearing was held on the same date by the court and Montgomery was sworn and testified. The court thereupon on the same date, made written findings, conclusions and order for Writ of Attachment to issue to attach two all-terrain vehicles as requested in the affidavit of attachment. Hunt and Brown filed a counter claim February 10,1986, alleging damages in a sum in excess of $5,000 against Montgomery for breach of fiduciary duty, constructive fraud, creditor overreaching, wrongful attachment, and asked that their judgment be offset against the balance owed on the $5,000 note. In addition to the answer and counter claim, Hunt and Brown filed on the same date a motion to discharge or in the alternative to quash the writ of attachment.

A bench trial was had in the cause on June 30, 1986, and on July 22, 1986, the District Court handed down its findings which granted judgment to the plaintiff plus interest and costs of action, which judgment has now been paid, finding that attachment was proper and dismissing the defendants’ counter claim for lack of evidence.

Hunt and Brown in their brief allege the issues are:

1. Did the District Court err in issuing a writ of attachment when the note was secured by an alleged mortgage on real property?

2. Did the District Court err in ordering the issuance of the writ of attachment when the affidavit of attachment failed to show facts that the contract was not secured by any mortgage or lien upon real property and failed to state the actual value of the property to be attached both as required by Section 27-18-202, MCA?

3. Whether attachment statutes are to be strictly construed?

4. Did the District Court err in failing to return judgment for Hunt and Brown on their counterclaim for damages for wrongful attachment?

Hunt and Brown claim the following wording in the note herein grants to Montgomery a real estate mortgage covering lots 23, block 2, West Troy:

“This note is given in connection with a certain other note and mortgage executed by the undersigned to secure a loan of $5,000 on
1. LOT 23 BLOCK 2 WEST TROY.
2. 1985 HONDA ATV 250 SE (Big Red).
3. 1985 HONDA ATV 250 SX
4.1975 FORD 3/4 TON 4 x 4 ID. # TZ6YR X20471 AS SECURITY ON ABOVE CAPTION LOAN in the County of LINCOLN in the State of Montana;

Also described as collateral are two all terrain vehicles which were the subject to the attachment. There was no other note and mortgage as mentioned in the executed note. There is grave question as to whether or not this wording constitutes a hypothecation for real estate mortgage purposes. However, the parties do not dispute a security interest in the vehicles. The Uniform Commercial Code governs insofar as the personal property is concerned which states in Section 30-9-501(4), MCA, as follows:

“If the security agreement covers both real and personal property the secured party may proceed under this part as to the personal property or he may proceed as to both the real and the personal property in accordance with his rights and remedies in respect of the real property in which case the provisions of this part do not apply.” It appears that Montgomery did elect to proceed under the UCC and under the UCC Section 30-9-503, MCA, Montgomery as the secured party on the default had the right to take possession of the collateral and the alleged erroneous issuance of the writ of attachment to take possession of the collateral was harmless error.

The same reasoning may be applied to the second error assigned by Hunt and Brown in this appeal.

Hunt and Brown’s third issue alleging that the attachment statutes are to be strictly construed also is not applicable to the facts here. As to the fourth issue which is contained in the conclusion of the appellants’ brief, did the court err in failing to return judgment for Hunt and Brown in their counterclaim for damages for wrongful attachment?

Even assuming that the writ of attachment was improperly obtained because the note was secured by a mortgage of real property and for failure of the affidavit to state facts as required in said Section 27-18-202, MCA, and assuming that the hearing on the issuance of the writ of attachment and the sworn testimony of Montgomery did not cure the defects in the affidavit and no further oral motions were made to amend the affidavit of attachment as allowed by Section 27-18-713, MCA, Hunt and Brown’s counterclaim must fail. This is not a counterclaim and third party complaint on an attachment bond as provided by Section 27-18-204, MCA. The surety was originally named as a third party defendant but was not served and later was dropped as a party. Such action on the attachment bond, cannot be brought in the attachment action but can only be brought after “defendant recovers judgment” in the attachment action or when “the court finally decides that the plaintiff was not entitled to an attachment.” See Yellowstone Livestock Commission v. Dupuis (1958), 133 Mont. 454, 325 P.2d 691. The counterclaim is then premised upon the common law notions of malicious prosecution or abuse of process, which is a suit in tort. To recover on such a suit, two elements must be present and proved, malice and want of probable cause.

The record is entirely devoid of any proof in support of Hart and Brown’s counterclaim relative to fiduciary relationship between the parties or of any constructive fraud or creditor overreaching on the part of Montgomery, and in fact the record does show that Montgomery did act in good faith in bringing the action and attempting the attachment and had probable cause. The court found the debt was owed to Montgomery by Hunt and Brown; that Montgomery was told that he could not have possession of the all-terrain vehicles when he asked for them after the debt became due and unpaid; and that plaintiff was informed by Hunt that Hunt and Brown were going to sell such vehicles. This action on their part would convert the tangible attachable property to cash which would then be practically unreachable by Montgomery.

Hunt and Brown failed to prove any malice (actual or legal) on the part of Montgomery. Proof of malice (actual or legal) and want of probable cause are two essential elements of an action for wrongful attachment in tort. Attachment and Garnishment, Section 596, 6 Am.Jr.2nd. Brown v. Guaranty Estates Corporation, (1954), 239 N.C. 595, 80 S.E.2d 645, Ray v. City Bank and Trust Co. (DC Ohio 1973), 358 F.Supp. 630. The District Court is affirmed.

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


author: MR. JUSTICE HARRISON

text:
    A. KENDRICK SMITH, Max A. Hansen and W.G. Gilbert, Jr., Plaintiffs, Counter-Defendants and Respondents, v. CLINTON J. HOWERY and Jacqueline J. Howery, Defendants, Counter-Claimants and Appellants.
    No. 86-501.
    Submitted on Briefs April 17, 1987.
    Decided June 25, 1987.
    738 P.2d 502.

      Robert T. Cummins, Helena, for defendants, counter-claimants and appellants.
    Schultz, Davis & Warren, Carl M. Davis, Dillon, Garlington, Lohn & Robinson, Sherman V. Lohn, Missoula, for plaintiffs, counter-defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a summary judgment granted plaintiffs by the District Court of the Fifth Judicial District in and for Beaverhead County. We affirm.

This appeal is but the latest in a series of actions arising from a condemnation proceeding initiated in 1979. In February of 1979, the State of Montana filed in Beaverhead County an action to condemn .76 of an acre of property belonging to Clinton and Jacqueline Howery. The State and the Howerys had been unable to agree on compensation so the suit was filed and the Howerys hired to represent them attorneys Kendrick Smith, Max Hansen and W. G. Gilbert, Jr. (hereinafter “Attorneys”). The Howerys eventually obtained a jury award in the amount of $243,475.00, a judgment affirmed by this Court in State By and Through the Dept. of Highways v. Howery (1983), 204 Mont. 417, 664 P.2d 1387.

Following that appeal, the Howerys and the Attorneys began negotiations to settle the issue of attorneys’ fees. The Attorneys had undertaken this case upon a contingent fee arrangement, but the parties were in dispute whether the Attorneys were entitled to their proportional share of the pre- and post-judgment interest, costs and other fees recovered in addition to the judgment award.

After the parties were unable to reach an agreement, the Attorneys filed a complaint on July 26, 1983, alleging breach of contract and seeking payment for services rendered. An amended complaint was filed the next day.

On October 24, 1983, the District Court granted the Attorneys permission to file a second amended complaint. That complaint added a second count alleging a breach by the Howerys of the implied covenant of good faith and fair dealing.

The Howerys responded with an answer, counterclaim and demand for jury trial. It is this counterclaim which is the subject of the present appeal. In it, the Howerys alleged the Attorneys breached the fiduciary duty owed their clients, breached the implied covenant of good faith and fair dealing and committed fraud.

On January 16, 1984, the Attorneys filed a motion for summary judgment on Count I of their second amended complaint which the District Court granted on May 14, 1984. The court found the terms of the fee contract clear, certain and unambiguous and the amount due the Attorneys fixed and not ambiguous in any way. We upheld that summary judgment in Smith v. Howery (Mont. 1985), [217 Mont. 23,] 701 P.2d 1381, 42 St.Rep. 995. (Smith I). We too found the fee contract “clear and unambiguous.” Smith I, 701 P.2d at 1383.

The Attorneys next filed a motion for summary judgment on the Howery’s counterclaim. The District Court granted this motion on August 25, 1986. Following a Rule 54(b), M.R.Civ.P., certification, the Howerys filed this appeal contesting this summary judgment.

A motion for summary judgment should be granted

“if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Rule 56(c), M.R.Civ.P.

As noted, the Howerys base their counterclaim on three legal theories: violation of the fiduciary relationship, breach of the implied covenant of good faith and fair dealing and fraud. However, it appears that all these theories are based upon the same factual allegation — the alleged failure of the Attorneys to advise the Howerys that the written contingent fee contract included a proportionate amount of any interest awarded on the judgment. We agree with the District Court’s conclusion that any such failure would be insufficient in law to support any of the claims made by the Howerys.

The Howerys further argue that their affidavit filed in opposition to the Attorneys’ motion for summary judgment in this case raises a genuine issue as to material facts. We note that this affidavit is nearly identical to the Howerys’ affidavit filed in Smith I which was found insufficient to establish any material fact issue requiring trial. While we recognize that the two affidavits were filed in conjunction with two separate and distinct legal claims, we again find that the affidavit does not establish any material factual issue.

Finally, the Howerys argue there cannot be summary judgment in any case containing an allegation of fraud. Citing Section 28-2-404, MCA, and numerous state cases, the Howerys note that actual fraud is a question of fact and contend that summary judgment is therefore inappropriate.

In Campbell v. Campbell (Mont. 1986), [223 Mont. 129,] 725 P.2d 207, 209, 43 St.Rep. 1584, 1587, we determined the invalidity of any such inference by stating:

“Section 28-2-404, MCA, states: ‘Fraud is either actual or constructive. Actual fraud is always a question of fact.’ This statute does not preclude summary judgment where there is no evidence supporting a claim of fraud. [Citation omitted.] Under Rule 56(c), Mont.R.Civ.P., summary judgment was appropriate in this case.”

As noted, the only factual issues claimed are insufficient to support the allegations of fraud.

The summary judgment issued by the District Court to the Attorneys is therefore affirmed.

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

      . Following the District Court’s order granting summary judgment on the issues raised by the counterclaim, the Attorneys moved to dismiss Count II of their second amended complaint. The District Court dismissed this count on October 21, 1986.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    MOUNTAIN VIEW EDUCATION ASSOCIATION, Plaintiff and Respondent, v. MOUNTAIN VIEW SCHOOL, Department of Institutions, State of Montana, Defendant and Appellant, and Department of Administration, State Personnel Division.
    No. 86-521.
    Submitted on Briefs Feb. 26, 1987.
    Decided June 26, 1987.
    738 P.2d 1288.

      Nick Rotering, Dept, of Institutions, Helena, Kathleen F. Holden, Dept, of Administration, Helena, for defendants and appellant.
    Hilley & Loring, Emilie Loring, Great Falls, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Mountain View School and the Departments of Administration and Institutions appeal an order issued by the District Court of the First Judicial District Court, Lewis and Clark County, holding that individuals employed to teach at Mountain View School are not “schoolteachers” under Section 2-18-601(2), MCA, and are therefore entitled to benefits provided for other state employees under Title 2, Ch. 18, Part 6, MCA. We affirm.

The single issue raised in this case is whether the faculty employed by the State at Mountain View School are “schoolteachers” under Section 2-18-601(2) and are therefore excluded from the state employee benefit provisions of Section 2-18-600, et seq., MCA.

Mountain View School is a state correctional facility for juveniles established by the Department of Institutions. The Mountain View Education Association (MVEA) is the bargaining representative for the nonsupervisory teachers employed at Mountain View. The teachers at Mountain View do not receive the leave time benefits provided state employees in Section 2-18-601, et seq. because the definition of employee in Section 2-18-601(2) specifically excludes “schoolteachers.”

In March, 1985, the MVEA filed a motion for declaratory judgment seeking to have the teachers they represent declared entitled to the state employee benefits provided in Section 2-18-601, et seq. The parties stipulated the legal issues and the facts necessary to decide it. On August 13, 1986, the District Court declared that the teachers ■ were entitled to the benefits. The State Departments of Administration and Institutions appeal.

Chapter 18 of Title 2 concerns state employee classification, compensation and benefits. Part 6 involves leave time. The statute in issue is definitional, stating:

“Employee’ means any person employed by an agency except elected state, county, and city officials, schoolteachers, and persons contracted as independent contractors or hired under personal services contracts. (Emphasis added.)”

Section 2-18-601(2), MCA.

It is the State’s position that this language excludes Mountain View faculty from the scope of the state employee leave plan. The State argues that when the term schoolteacher is interpreted in its plain and ordinary meaning, as it should be since it is not statutorily defined, Mountain View faculty are explicitly excluded because they, like other schoolteachers, teach school. The State cites Sections 1-2-106 and -107 in support of their argument. Section 1-2-106 states:

“Words and phrases used in the statutes of Montana are construed according to the context and the approved usage of the language, but technical words and phrases and such others as have acquired a peculiar and appropriate meaning in law or are defined in Chapter 1, part 2, as amended, are to be construed according to such peculiar and appropriate meaning or definition.”

The State’s point is that “schoolteacher” is not defined in Chapter 1 and it is not a technical term, hence it must be construed according to its plain and ordinary meaning. The State then cites Webster’s New World Dictionary defining schoolteacher as “one who teaches in a school” and teacher as “one who teaches, especially as a profession.”

While it is true that the word “schoolteacher” itself is not defined anywhere in the code, the word “teacher” is, in the title on Education, Title 20. Section 20-1-101(20), MCA, states:

“ ‘Teacher’ means any person, except a district superintendent, who holds a valid Montana teacher certificate that has been issued by the superintendent of public instruction under the provisions of this title and the policies adopted by the board of public education and who is employed by a district as a member of its instructional, supervisory, or administrative staff . . . (Emphasis added.)”

The prefatory sentence to the various definitions, including “teacher,” found in Section 20-1-101 is “as used in this title, unless the context clearly indicates otherwise, the following definitions apply:” Although such a preface might be considered as limiting the definition of “teacher” only to those covered in Title 20, it is clear that if the teachers at Mountain View are indeed teachers as defined by this statute, then they are covered in Title 20. They cannot meet the definition, however, because they are not employed by a school district. In consequence we hold that despite the prefatory statement in Section 20-1-101, a “teacher” must meet the definition in that section for the state laws defining teachers to apply to employees of Mountain View. We are buttressed in this holding by the language of Section 1-2-107:

“Whenever the meaning of a word or phrase is defined in any part of this code, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears.”

Both parties rely on Rippey v. Flathead Valley Community College (Mont. 1984), [210 Mont. 396,] 682 P.2d 1363, 41 St.Rep. 1117 to support their opposite conclusions. In Rippey, the issue was whether community college faculty were schoolteachers, and therefore excluded from the state employee’s entitlement to compensation for accumulated sick leave. This Court examined the definition of teacher given in Section 20-1-101(20) and held that “the plain and ordinary meaning” of schoolteacher did not include community college faculty members, because of the relationship between the Board of Regents and Montana’s community colleges. The Court noted that the factor distinguishing community college faculty from schoolteachers is that the faculty are “ultimately answerable” to the Board of Regents. This Court recognizes a similar distinction in the statutory language that “teachers” are “employed by a [school] district.” The faculty at Mountain View are not employed by a school district. Their school is administered by the State Departments of Institutions and Administrations. The MVEA relied on this distinction to support their position. The State relied on the Rippey Court’s use of the phrase “plain and ordinary meaning” in an out of context fashion to support theirs.

We uphold the District Court’s application of the distinction drawn in Rippey. The instructors at Mountain View are not employed by a school district. Instead, they are state-employees subject to the direction of the Departments of Administration and Institutions. As state employees they do not fall within the statutory definition of “teachers” under Section 20-1-101(20), MCA. Hence they are entitled to leave benefits provided for other state employees under Title 2, Chapter 18, Part 6, MCA.

Affirmed.

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

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

In my view, the majority, by interpreting the phrase “school teachers” to include, only those teachers employed by a school district has done violence to the separation of powers doctrine.

The Thirty-first Legislative Assembly added the words “or school teachers” in Section 7, Chapter 131, Laws 1949. Chapter 131 is entitled in pertinent part “An Act Relating To Annual Vacation Leave for State, County, and City Employees . . .,” and Section 7, after amendment, states: “The term ‘employee’ as used herein, does not refer to or include elected state, county, or city officials, or school teachers.”

By its very heading, the act could not be construed as providing vacation leave for school teachers employed by a school district. It could, however, prior to amendment, be construed as providing vacation leave for a school teacher employed by the state, county, or city. In my opinion, the addition of the words “or school teachers” in the exclusion section must be given some effect, whereas the majority opinion treats those words as nonexistent.

Section 53-30-207, MCA, applicable to Mountain View and Pine Hills Schools, requires that:

“The academic and vocational curricula in facilities containing academic and vocational training shall include such academic and vocational subjects as are taught in the public schools of the state and shall conform to the standards set by the board of public education.”

The teachers employed at the two state schools are required to be certified in the same manner as all teachers employed in the public schools of the state, and are represented by the Mountain View Education Association, affiliated with the Montana Education Association. The Collective Bargaining Agreement between the State of Montana and the Mountain View Education Association provides for 185 work days per teacher work year and specifically covers employee benefits as follows: Sick leave, family sick leave, maternity leave, jury duty, military leave, leave for public office, professional staff development, training, leave of absence, and paid release time for mediation and fact finding. The detailed arbitration provisions declare that no arbitrator shall have the power to add to, detract from, or modify the terms of the agreement.

To define the words “school teacher” to exclude any certified teacher who is employed by an agency other than a school district is, in my opinion, a denigration of the collective bargaining process.


author: MR. JUSTICE WEBER

text:
    HOLLY McCLAIN, et al., Plaintiffs and Appellants, v. NERCO, INC., and Spring Creek Coal Company, Defendants and Respondents. DANIEL MARTINI, Plaintiff and Appellant, v. NERCO, INC., and Spring Creek Coal Company, Defendants and Respondents. JAY ELLIS, Plaintiff and Appellant, v. NERCO, INC., and Spring Creek Coal Company, Defendants and Respondents.
    No. 87-12.
    Submitted June 4, 1987.
    Decided June 26, 1987.
    738 P.2d 1285.
    Nye & Meyer, Jerrold Nye argued, Billings, for plaintiffs and appellants.

      Murphy, Robinson, Heckathorn & Phillips, C. Eugene Phillips, Kalispell, Stoel, Rives, Boley, Fraser & Wyse, Pamela L. Jacklin argued, Portland, Or., for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Sixty-five coal miners sued NERCO, Inc. (NERCO) and Spring Creek Coal Company (Spring Creek) on several theories evolving from the miners’ job termination. The parties settled all claims except those embodied in a fourth amended complaint. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment to NERCO and Spring Creek on the fourth amended complaint. Plaintiffs appealed. We affirm.

The issue is whether the District Court erred in granting summary judgment to NERCO and Spring Creek on the plaintiffs’ fourth amended complaint.

Spring Creek Coal Company, located near Decker, Montana, mined and sold coal to a Houston company called Utility Fuels, Inc. (UFI). UFI resells the coal to Houston Lighting and Power Company (HL&P) and its sister company, Houston Industries, Inc. (HI). UFI, HL&P, and HI will be collectively referred to as “the Houston group”.

While the Spring Creek Mine was being developed, Spring Creek and the Houston group entered into a long-term contract under which Spring Creek agreed to provide approximately 500,000 tons of coal per month to the Houston group for 25 years. Spring Creek first delivered coal to the Houston group in 1980. By 1981, the Houston group claimed they had significant operational problems in burning the coal-because of the high sodium content in the coal’s ash.

During 1981 and 1982, Spring Creek and the Houston group negotiated two amendments to the coal supply agreement. The amendments permitted the Houston group to temporarily take delivery of substantially reduced quantities of coal in exchange for paying Spring Creek a “shortfall” fee for each ton not accepted. Spring Creek reduced its coal production substantially during the first half of 1982 to approximately 175,000 tons per month, but retained its existing work force.

On July 15, 1982, the Houston group filed a lawsuit against Spring Creek and NERCO to reduce permanently the amount of coal UFI had to accept to 175,000 tons per month. At the same time, the Houston group notified Spring Creek that their alleged inability to burn Spring Creek coal constituted a “force majeure” under the contract.

On July 21, 1982, NERCO, Spring Creek, and the Houston group met. Negotiations indicated settlement could be reached if Spring Creek would allow the Houston group to reduce the quantities of coal it would accept. On July 23, 1982, Spring Creek implemented a reduction in force (RIF), reducing its work force by half. The plaintiffs were terminated on this day. On July 28, 1982, NERCO, Spring Creek, and the Houston group signed an Interim Agreement which provided for a continuation of the earlier agreed 175,000 tons a month, for temporary settlement of their dispute, and for dismissal without prejudice of the Houston group lawsuit.

On February 10, 1983, Spring Creek and the Houston group executed their first agreement in principle which provided for the sale to the Houston group of substitute coal from an unaffiliated mine until NERCO developed its Antelope Mine. This agreement eliminated the need for a workforce sufficient to produce 500,000 tons of coal per month because it provided that the Houston group would continue to pay for only 175,000 tons of coal per month from the Spring Creek mine. At the time the record on summary judgment had closed, Spring Creek and the Houston group had not reached a final resolution of their dispute despite further negotiations.

After their job termination the plaintiffs filed their complaint containing a number of different theories. After settlement was reached on all other issues, a fourth amended complaint was filed which alleged Spring Creek had assured plaintiffs of job security based upon the long-term coal contract and then engaged in a conspiracy with NERCO and the Houston group under which a sham lawsuit was brought in order to create a ground for the termination of plaintiffs’ employment.

Did the District Court err in granting summary judgment to NERCO and Spring Creek on the plaintiffs’ fourth amended complaint?

First, we must address and dispose of the contention made by plaintiffs’ attorney during oral argument that two claims had been preserved and pled in the fourth amended complaint. Although neither the fourth amended complaint nor the agreed statement of record on appeal addressed the manifestations of job security theory, plaintiffs’ counsel argued orally that this theory had not been previously settled and had been preserved. We disagree.

A settlement was reached of all claims except the conspiracy claim. Since the plaintiffs would not agree to a settlement of that claim, the parties agreed that a fourth amended complaint would be filed dismissing all claims except the conspiracy claim.

Accordingly, the fourth amended complaint was filed. The caption to that complaint provided in pertinent part:

“NOW COME the plaintiffs ... to dismiss with prejudice all claims, factual theories and legal theories upon which relief could be granted, except for the plaintiffs’ claim for breach of covenant of good faith and fair dealing in employment based upon factual theories of conspiracy pleaded below ... By this Amendment the plaintiffs are effectuating the partial settlement reached in the above-captioned matters December 15, 1985, and in doing so Plaintiffs waive any and all issues of appeal as to matters set forth or which could have been set forth in any complaint filed in connection with the above-captioned matters except the Fourth Amended Complaint. (Emphasis added.)”

The complaint went on to outline one claim for relief:

“11. In accord with the statements of fact and belief set forth above, plaintiffs contend that the workforce reduction was not motivated by economic concerns resulting from a legitimate dispute between Spring Creek and the Houston group. Rather, plaintiffs state that defendants NERCO, Inc. and Spring Creek Coal Company have breached their duty of good faith and fair dealing in their employment relationship with plaintiffs by creating the appearance of a dispute requiring a production cutback at the Spring Creek Coal Mine in a scheme to wrongfully deprive plaintiffs of their employment.”

We also considered the agreed statement of record on appeal which the parties offered, as well as the settlement agreement between the parties. Both the agreed statement and the settlement agreement demonstrated that only the conspiracy claim was being asserted on appeal.

We conclude that plaintiffs’ attempt to make the job manifestation claim is not supported by the record. Clearly the job manifestation claim was settled and forever waived by the plaintiffs. Therefore, we will consider only the breach of covenant of good faith and fair dealing claim based upon the alleged conspiracy.

Essentially, the fourth amended complaint alleges that NERCO and Spring Creek conspired with the Houston group to create the appearance of a dispute requiring a coal production cutback and the termination of plaintiffs’ jobs. Plaintiffs contend that a conspiracy is demonstrated by comparing the dates of the following events:

July 15, 1982 - The Houston group filed its lawsuit against NERCO/Spring Creek;

July 21, 1982 - NERCO/Spring Creek negotiate with the Houston group;

July 23, 1982 - Spring Creek layed off plaintiffs;

July 28, 1982 - NERCO/Spring Creek and the Houston group sign Interim Agreement.

Plaintiffs assert that the timing of the foregoing events demonstrates conspiracy on the part of NERCO/Spring Creek and a breach of their duty of good faith and fair dealing.

The question is whether there is any evidence which supports the plaintiffs’ conspiracy theory so that summary judgment was improper. After a careful review of the record, we conclude plaintiffs have not presented any evidence of a conspiracy. There is no genuine issue of material fact. Spring Creek and NERCO are entitled to judgment as a matter of law.

Several factors lead us to this conclusion. First, notwithstanding extensive depositions by the plaintiffs of Spring Creek and NERCO officers, as well as extensive interrogatories, plaintiffs have failed to present any positive evidence of a conspiracy between the Houston group and NERCO/Spring Creek. Plaintiffs’ argument is limited to the timing of the job dismissals in relationship to the filing and subsequent dismissal of the Houston group lawsuit. We conclude that the timing of such actions in and of itself is not sufficient to constitute any evidence of conspiracy. Second, NERCO/Spring Creek presented positive evidence that the Spring Creek mine was facing severe economic times because the Houston group, its principal customer, filed the lawsuit to permanently reduce the coal it had to accept and also gave notice of force majeure as a basis for contract cancellation. The unrebutted affidavits of the chief executive officer for NERCO and Spring Creek as well as the vice president and chief financial officer of NERCO and Spring Creek, establish that the result of the Houston group’s refusal to take or pay for contract quantities of coal was potentially devastating for NERCO/Spring Creek. The record contains credit agreements between NERCO and various lenders, letters from NERCO to lenders outlining the status of NERCO’s financing after the filing of the lawsuit, and internal documents regarding NERCO’s tenuous financial position because of the lawsuit and possible loss of the Houston group’s contract. We con-elude that the record establishes that Spring Creek was under extreme financial pressure to reach an immediate agreement resolving the lawsuit in order to keep from losing its multi-million dollar line of credit. Third, the controversy between the Houston group and NERCO/Spring Creek still has not reached a final resolution, which tends to negate plaintiffs’ theory that a conspiracy existed in 1982.

Plaintiffs have failed to raise an issue of ultimate fact. We affirm the District Court.

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


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

text:
    STATE OF MONTANA, ex rel., DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Plaintiff and Appellant, v. THOMAS GREEN, d/b/a Green’s Salvage, Defendant and Respondent.
    No. 86-453.
    Submitted on Briefs March 12, 1987.
    Decided June 29, 1987.
    739 P.2d 469.

      Katherine J. Orr, Dept, of Health, Helena, for appellant.
    Thomas Green, pro se.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The State of Montana ex rel. Department of Health and Environmental Sciences appeals an order in favor of Green’s Salvage on a charge of failure to obtain a license for Green’s motor vehicle wrecking facility and for failure to shield the facility from public view.

We reverse and remand.

There appear to be three main issues on appeal. They are:

1. Did the trial court err in finding that Green’s Salvage business was not within “public view” and that certain portions of the junk yard are exempt from shielding requirements?

2. Did the trial court err when it failed to find a violation by defendant of a separate statute requiring him to obtain a license to operate or does defendant have an inalienable right to acquire junk vehicle property without a license and without shielding?

3. Does defendant’s practice of not purchasing junk cars from insurance companies make a license unnecessary?

The defendant, Thomas Green, owns and operates a motor vehicle wrecking facility approximately 3 miles west of Wolf Point, Montana. From the record we have before us it appears that Green collected some junk cars but did not begin to significantly accumulate junk vehicles until 1978. At present the facility contains approximately 1,200 junk vehicles covering 35 acres of land. Green’s is one of the largest junk vehicle yards in the State.

The yard complained of is situated at a lower elevation than and approximately 4,000 feet to the south of U.S. Highway 2, a main access road into Wolf Point for interstate traffic from the west. It also sits to the north of and in close proximity to ’the Bureau of Indian Affairs Highway Route One, the so-called “Indian Highway,” which angles around the junk vehicle yard to the west, south, and east sides of the facility. Both U.S. Highway 2 and the “Indian Highway” are paved public roads.

The Department contends that the wrecking facility should be shielded around its entire perimeter since the facility can be seen from both of the public roads from various directions. Green has been operating without a license for his motor vehicle wrecking facility since he began his operation. He submitted various license applications over the years but each application was found to be incomplete or contain unworkable solutions to the shielding requirement. In 1985, Green sent the required $50.00 fee to obtain his license which was also denied because the plan for shielding his facility was incomplete and inadequate.

Since 1982, Department employees, Larry Mitchell and John Geach, charged with implementing the Motor Vehicle Recycling and Disposal Act and Junk Yards Along Roads Act, worked with Green to help him come into compliance by assessing Green’s yard on four different occasions and by providing detailed compliance advice.

They worked with Green for several years but he did not complete any of his various plans for complying with the shielding requirements. From letters dated September 30, 1982, June 15, 1983, April 3, 1985, and July 31, 1985, Green was advised that he was operating without a license and needed to obtain one. In the letters of October 19, 1982, June 15, 1983, April 3, 1985, and July 31, 1985, Green was advised that his application was incomplete or inadequate.

The Department appeals the judgment for Green which found his facility was not within public view from U.S. Highway 2; that the facility could not be considered to be an eyesore; and that Green need not obtain a license. There is some confusion in the record because the trial court appears to base its decision at least in part on the visual inspection of the premises. However, subsequent to entry of these findings, in its order of October 20, 1986, the Court agreed to limit the record to oral and written evidence not including the visual inspection since the court reporter did not prepare a verbatim transcript of the testimony given during the visual inspection by car. We look to the record as it was submitted to this Court.

The Department first argues the lower court erred in finding Green’s Salvage business was not in “public view.” It claims that the preponderance of the evidence shows that the defendant’s business was within public view.

In a Preliminary Environmental Review dated July 1, 1985 the Department stated “[t]his facility is visible from two public roads; U.S. Highway 2 to the north and the Indian Highway to the east, south and west. All sides of this facility must be properly shielded from public view.”

U.S. Highway 2

The trial court order stated that by driving down U.S. Highway 2:

“Commencing where 6th Avenue North intersects with U. S. Highway No. 2, you go West on Highway No. 2 for 1.9 miles before Green’s Salvage can be noticed. Then for a distance of 3.2 miles the salvage yard can be noticed, then for a distance of .6 miles it is out of view and then can be noticed again for a short distance of .2 of a mile . . . The facility could be noticed but not within ‘public view’ as contemplated by ARM 16.14.202(1).”

Section 16.14.202(1) of the Administrative Rules of Montana states:

“All junk vehicles, motor vehicle wrecking facilities, and county motor vehicle graveyards are required to be shielded from public view. Public view is any point six feet above the surface of the center of any public road from which the wrecking facility and junk vehicles can be seen.”

Department employees Mitchell and Geach on a number of occasions viewed Green’s Salvage from U.S. Highway 2. Both have testified that Green’s Salvage is in public view from U.S. Highway 2.

Green neither admits nor denies that his facility can be seen from U.S. Highway 2. He testified that he failed to obtain a license because of certain individual property rights guaranteed by the Constitution and not because of the cost of shielding his facility. The defendant gave the following written response to an interrogatory posed by the Department:

“INTERROGATORY NO.12: (a) Please state whether it is your position that your facility cannot be seen from Highway 2. (b) If you admit that your facility can be seen from any point on Highway 2, please describe whether you believe it should be shielded to some degree, (c) If you object to a shield from public view from Highway 2, please state the basis for your objection.
“ANSWER NO.12: (a) What can be seen is not always comprehended and what is sometimes seen and comprehended is not always seen. At night, during blizzards and due to heatfy fog my business cannot always be seen from Highway 2. (b) I do not believe shielding is necessary, neither do the approximately 2,500 people that signed the petition, (c) Prejudice on the part of the State of Montana over my choice of property to acquire and possess.
In the judge’s chambers prior to trial, the Department contends Green described that all but 50 cars can be seen from U.S. Highway 2.
The “Indian Highway”
The transcript does not disclose what the Indian Highway is, but a letter to the Solid Waste Bureau from the United States Department of the Interior attached to the Appellant’s brief indicates that it is a public road built with federal funds and “in accordance with 25 Code of Federal Regulations, Part 170.8, free public use is required.”

From the record it appears that the Green facility can be publicly viewed from the Indian Highway as claimed by the Department.

However, the lower court concluded:

“In addition the court finds that the Indian Highway was built after the wrecking facility and the law does not apply to the Indian Highway, and therefore that is not a consideration before the Court. If a person were offended by traveling the Indian Highway and driving by the facility, they could detour North approximately two miles on oil to Highway No. 2 and avoid passing by the facility without increasing the miles traveled to Wolf Point.”

If the evidence preponderates against a trial court’s finding, this Court may review the record to evaluate the evidence and make independent findings of fact. Hagfeldt v. Mahaffey (1978), 176 Mont. 16, 575 P.2d 915. Such a review of the record is proper in this case for the purposes of determining if it preponderates against the trial court’s findings.

The testimony of the witnesses and the court’s order found that the facility could be seen from both the Indian Highway and U.S. Highway 2. It is of no consequence to the enforcement of the Motor Vehicle Recycling and Disposal Act and the Junk Yards Along Roads Act, that a person might have to have a certain eyesight acuity to identify it as a junk yard, that a particular highway was built after the wrecking facility was started, or that a particular highway was thought to be an unnecessary road. These factors are not relevant here.

The applicable laws were in effect since 1967 and apply to Green’s business which substantially began in 1978. A review of the record discloses the preponderance of the evidence indicates defendant’s facility is in public view. It is one of the largest facilities in the State. Defendant has known of the laws mandating shielding compliance for several years and has not brought his facility into compliance at any time during the growth and expansion of his business.

Defendant is not immune from the shielding regulations and is required to bring his facility into compliance with the applicable laws and regulations.

The second issue raised by Department is whether the trial court erred when it failed to find a violation of Section 75-10-511, MCA, the separate statute requiring defendant to obtain a license to operate his motor vehicle wrecking facility. The trial court found that defendant was eligible to receive a license from the Department upon payment of the statutory fee because the shielding requirements did not apply to the defendant.

As we have found in the previous issue, the shielding requirements do apply to the defendant’s facility.

These requirements are only one aspect of operating a motor vehicle wrecking facility within the mandates of the law. Section 75-10-511, MCA, states that any person operating a motor vehicle wrecking facility must obtain a license. It states:

“(1) A person may not conduct, maintain, or operate a motor vehicle wrecking facility . . . without a license issued by the department.
“(3) An annual fee of $50 shall be paid to the department for the license . . .
“(6) The license expires on December 31 of the year issued.”

The specific requirements for obtaining a license are set out in Section 14.201, Administrative Rules of Montana which provides:

“(1) Application for license to operate a motor vehicle wrecking facility shall be made on forms furnished by the department . . .
“(a) All the information requested on the application form must be completed before the department can act on the application.
“(2) When the completed application is received, the department is to approve the site location before a license will be issued.
“(3) Before an application will be approved and a license to operate will be issued, the facility must be in compliance with the shielding requirements of ARM 16.14.202.”

Defendant contends he has an inalienable right to acquire junk vehicles on his property without a license. While it is true that he does have certain constitutional rights to acquire and possess real and personal property, these property rights must be balanced with the rights of the public which the Department is mandated to protect.

This question of balance was addressed in State of Montana v. Cecil Bernhard (1977), 173 Mont. 464, 568 P.2d 136 as follows:

“Article II, Section 3, 1972 Montana Constitution declares that the right to a ‘clean and healthful environment’ is an inalienable right of a citizen of this state. Consistent with this statement and the case cited, we hold that a legislative purpose to preserve or enhance aesthetic values is a sufficient basis for the state’s exercise of its police power in 69-6802 now Section 75-10-511(1), MCA.”

In sum, defendant’s contention has been previously answered by this Court. It is clear that the Department correctly required the facility to obtain a license to operate whether or not it was exempt from shielding requirements.

We reverse the trial court on this issue and hold defendant must obtain a license to operate his facility in keeping with the applicable statutes.

The third issue is closely related to the licensing issue above. It is essentially a pro se cross claim by respondent who questions whether his practice of not purchasing junk cars from insurance companies makes a license unnecessary. Section 75-10-520, MCA, provides:

“An insurance company settling an insurance claim on a damaged motor vehicle as a total loss less salvage may dispose of the motor vehicle at a motor vehicle wrecking facility only if it is licensed under the provisions of 75-10-511.”

This statute and the licensing statutes are separate and independent requirements within the Motor Vehicle Recycling and Disposal Act which may be independently enforced. Respondent may not therefore use the fact that he does not purchase junk vehicles from insurance companies as a reason for not obtaining a valid license. A license is still required to operate his motor vehicle wrecking facility.

The respondent has failed to comply with the licensing requirements. He is subject to the provisions of the Act to be determined by the trial court pursuant to Sections 75-20-541 and 75-10-542, MCA.

Reversed and remanded.

MR. JUSTICES HARRISON, SHEEHY, WEBER and McDON-OUGH concur.

MR. CHIEF JUSTICE TURNAGE,

dissenting:

Appellant contends that he has a constitutional right to operate his motor vehicle wrecking facility without the statutorily-required license. This contention is not correct.

Section 75-10-501(7), MCA, is the statutory basis for appellant’s problem and provides:

“ ‘Public view’ means any point 6 feet above the surface of the center of a public road from which junk vehicles can be seen.”

I have some concern that this definition meets the constitutional test of due process when analyzed with the statutory purpose of beautification of the state. The statute is vague in that it offers no rational guide as to what public view may require, whether a pervasive intrusion upon the public view or a fleeting glimpse from a high point on the public road.

District Judge James Sorte applied common sense when he ruled that the Green facility was not within public view from U. S. Highway No. 2 as contemplated by the statute. A person may have been able to espy the vehicles from Highway 2; however, to have one’s aesthetic senses offended thereby would require a bent for automotive voyeurism. Apparently, the over 2000 residents of Roosevelt County who signed a petition in support of Green’s facility had no complaint.

The gravel country road referred to as the “Indian Road” apparently affords a better view of the facility and places it within the technical grasp of the rule and statute. However, in light of the purpose of the statute to enhance beauty, this may well be a de mini-mus intrusion on regulation.

Judge Sorte has wisely forecast the result that will surely follow in the event of a closure of the Green facility. The approximate 1200 vehicles located there, or their successors, would be strung out across Roosevelt County, probably resting on knolls and prairie dog mounds in clear public view.

The solution, not to be taken as a precedent, would be to affirm the District Court. This would be an application of judicial common sense and in the best interests of the citizens of Roosevelt County.

The claim of appellant that he has a constitutional right to operate the facility without a license is rejected.

In all events, the parties to this cause are encouraged to continue to work out a rational solution.

MR. JUSTICE GULBRANDSON concurs in the dissent of MR. CHIEF JUSTICE TURNAGE.