text:
    In re the MARRIAGE OF LINDA S. REICH, Petitioner, Counter-Appellant and Respondent, and KEITH A. REICH, Respondent and Appellant.
    No. 86-76.
    Submitted on Briefs May 9, 1986.
    Decided June 20, 1986.
    720 P.2d 286.

      Kinnard & Woodward, Vernon E. Woodward, Billings, for respondent and appellant.
    English & Lee, Bruce E. Lee, Billings, for petitioner, counter-appellant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal of the property distribution in a dissolution of marriage entered by the Yellowstone County District Court. We affirm in part and remand in part.

The issues raised by the husband are:

(1) Did the District Court abuse its discretion in setting the value of certain corporate equipment at $40,000?

(2) Did the District Court err by awarding a corporate asset to the wife as part of the property division?

On cross appeal the wife raises these issues:

(3) Did the District Court err by awarding the wife less than one-half of the marital estate after specifically finding a 50/50 division was appropriate?

(4) Should husband be ordered to pay wife’s attorney fees incurred on appeal?

A hearing was held on the wife’s petition for dissolution of marriage in October 1985. At the time of the hearing the parties had not agreed on the disposition of their marital property. The District Court entered its findings and conclusions, and after motion by the wife and a hearing, those findings and conclusions were amended. The decree of dissolution was entered in December 1985. The District Court held in its original order that an equal division of the marital estate was appropriate. In its amended order, the court found that the parties’ net worth was $132,658.60. The court awarded the wife property with a total net value of $62,526.43. Among other property, the court awarded the husband his 100% interest in his business corporation, Reich Geophysical, Incorporated.

I

Did the District Court abuse its discretion in setting the value of certain corporate equipment at $40,000?

The husband challenges the District Court’s finding that: “The Petitioner submitted evidence reflecting that the value of [certain logging equipment] was $40,000.00 . . . .” He argues that there was no evidence that the value of the logging equipment, which is owned by his business corporation, is $40,000.

The husband testified that the logging equipment had a fair market value of between 30 and 40 percent of the original purchase price. His valuation of $28,350 was 35 percent of the original purchase price. The court received evidence that the equipment was carried on the corporate books at a value of $80,960.51. It further received into evidence a letter from Norwest Bank in which the value of the equipment was stated as $100,000. Also admitted into evidence was a certificate of insurance showing that the logging equipment was insured for $64,224.

It is true that there was no testimony before the District Court that the value of the logging equipment was exactly $40,000. However, this Court has held that a district court is free to find a value for marital property within the range of the evidence submitted. In re Marriage of Staudt (Mont. 1985), [216 Mont. 196,] 700 P.2d 175, 179, 42 St.Rep. 740, 744. We will not set aside a district court’s finding of fact unless the finding represents an abuse of discretion. Reese v. Reese (1979), 185 Mont. 52, 55, 604 P.2d 326, 328. We conclude that valuation of the logging equipment at $40,000 is supported by the evidence and is not an abuse of the District Court’s discretion.

II

Did the District Court err by awarding a corporate asset to the wife as part of the property division?

The husband contends that award of the 1981 Ford pickup truck to the wife was error because title to the truck was in Reich Geophysical, Inc. In the husband’s proposed findings, he suggested distributing the truck to the wife. He now cites Buxbaum v. Buxbaum (Mont. 1984), [214 Mont. 1,] 692 P.2d 411, 41 St.Rep. 2243, as authority that in a dissolution of marriage, a corporate asset should not be distributed to the wife who did not hold any shares in the corporation. Here the District Court recognized that the wife’s automobile was not reliable and that the husband had a car furnished to him by the corporation and that the corporation also had a 1981 Ford pickup. The District Court then apparently concluded that because the husband was the sole shareholder of the corporation he was able to cause the asset to be transferred, and it awarded the Ford pickup to the wife. It is technically true that the District Court did not have the power to order the distribution of corporate property where the corporation itself was not a party to the marital dissolution. However, our review of the record demonstrates that the District Court carefully reviewed all of the assets of the parties, including all of the various assets owned by the corporation, which in turn was owned solely by the husband. We conclude that there was a proper factual basis for the distribution of the pickup to the wife. However, we also recognize that the husband is technically correct as a matter of law.

We remand to the District Court with the following instructions: Within 30 days of the issuance of remittitur in this cause the husband shall file with the District Court his election to accept the distribution of the 1981 Ford pickup truck to the wife or in the alternative to accept a property substitution equal in value to the $7,500 assigned to the truck. Thereafter the District Court shall amend its property distribution to coincide with that election, if amendment is required.

III

Did the District Court err by awarding the wife less than one-half the marital estate after specifically finding a 50/50 division was appropriate?

This issue is raised by the wife on cross appeal. She points out that in its original findings of fact and conclusions of law the court awarded her approximately one-half of the marital estate. The total net worth of the parties was set at $117,658.60 and the wife was awarded net assets valued at $58,776.43. The court’s original findings and conclusions, however, were later amended to include in the marital estate the uncontested values of the 1981 Ford pickup and of a 1980 Datsun 280 ZX. Titles to both of these vehicles were held by the husband’s business corporation but they were erroneously left out of calculation of the net worth of the corporation. The court amended its findings and conclusions to increase the parties’ total net worth to $132,658.60. However, it increased the wife’s award by only $3,750, so that the total assets awarded to her were $62,526.43. She argues that she is entitled to another $3,750 in net assets so that she receives half of the net marital estate. We recognize that in concluding that the estate should be divided 50/50, the District Court may not have concluded that a precise mathematical division was required. We do not wish to take the place of the District Court in making this decision. We therefore remand this issue to the District Court for further consideration and for an amendment to its property division, if it concludes that such an amendment is appropriate.

IV

Should husband be ordered to pay wife’s attorney fees incurred on appeal?

The wife argues that husband’s appeal is not well taken and borders on being frivolous. She therefore requests that the court award her her attorney fees on appeal. The wife cites no authority in support of this request and we note that the parties were each ordered to pay their own attorney fees in the action before the District Court. Additionally, husband has made a valid legal argument in his second issue. We conclude that the husband should not be ordered to pay wife’s attorney fees on appeal.

Affirmed in part and remanded to the District Court for modifications as required by this Opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, SHEEHY and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    RICHARD PAYNE and Shirley Payne, Plaintiffs and Appellants, v. SAFECO INSURANCE COMPANIES OF AMERICA, Defendant and Respondent.
    No. 86-89.
    Submitted on Briefs May 15, 1986.
    Decided June 24, 1986.
    720 P.2d 1197.
    Knuchel & McGregor, Karl Knuchel, Livingston, for plaintiffs and appellants.
    Landoe, Brown, Planalp, Kommers & Johnstone, Gene I. Brown, Bozeman, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Richard and Shirley Payne held a homeowners insurance policy with Safeco Insurance Companies of America (Safeco). They appeal the summary judgment of the District Court for Park County that their Safeco policy did not cover fire damage to several antique vehicles. We affirm.

The issue is whether the District Court correctly determined that the Paynes’ insurance policy clearly and unambiguously excludes the antique cars from coverage.

The Paynes own several antique vehicles, only one of which is licensed for road use. In March 1984, the garage containing the antique vehicles burned, damaging the vehicles. The Paynes insurance policy provided:

“This coverage excludes:... 2. motorized vehicles, except such vehicles pertaining to the service of the premises and not licensed for road use.”

Safeco denied coverage for damage to the vehicles based on this provision.

The Paynes filed a complaint against Safeco alleging failure to pay under the policy, bad faith, and breach of contract. Safeco filed a motion for summary judgment based on the above provision. The trial judge granted Safeco’s motion for summary judgment, stating that the language of the policy was plain, clear, and unambiguous, that no further discovery would change the terms of the insurance contract, and that Safeco’s denial of the Paynes’ claim could not be considered as bad faith.

The Paynes contend that a reasonable person could read the exclusionary provision as excluding coverage for motorized vehicles except for two types, 1) vehicles which were used to service the premises, or 2) vehicles which were unlicensed for road use. They argue that since the policy provision is ambiguous, it must be construed against the insurer. They cite Truck Ins. Exchange v. Woldstad (Mont. 1984), [212 Mont. 418,] 687 P.2d 1022, 41 St.Rep. 1750. In that case, the Court stated, “[i]t is the rule of construction in Montana that language of limitation or exclusion must be clear and unequivocal; otherwise, the policy will be strictly construed in favor of the insured.” Truck Ins., 687 P.2d at 1024-25.

The above rule is set forth in our statutes. Section 28-3-303, MCA, provides the general rule:

“Writing generally to determine intention. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.”

Section 28-3-206, MCA, sets forth the exception for ambiguity:

“Uncertainty to be resolved against party causing it. In cases of uncertainty . . . the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist We conclude that the insurance policy clause at issue here is within the general rule. The grammatical structure of the clause is such that both “pertaining to the use of the premises” and “not licensed for road use” modify the same word, “vehicles.” If the clause was meant to include two exceptions to the coverage exclusion, it would properly be written either with a disjunctive ‘or’ between the exceptions, or as: “vehicles pertaining to the service of the premises and vehicles not licensed for road use . . . .” As it is written, the policy clearly and unambiguously covers only those vehicles which meet both of the requirements set forth in the provision.

There have been no allegations that the antique vehicles in any way pertained to the service of the premises. We therefore affirm the District Court’s conclusion that, as a matter of law, the Safeco insurance policy did not provide coverage for damage to the Paynes’ antique vehicles.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    GALLATIN COUNTY, State of Montana, By and Through its BOARD OF COUNTY COMMISSIONERS, Joy I. Nash, Chairman, Wilbur Visser, Jane Jelinski, Members, Plaintiff and Respondent, v. RICHARD McCLUE, Defendant, Third Party Plaintiff and Appellant, v. GARY W. PRINGLE, as Clerk and Recorder of Gallatin County, Montana and as Election Administrator, Third Party Defendant and Respondent.
    No. 85-441.
    Submitted April 21, 1986.
    Decided June 25, 1986.
    721 P.2d 338.

      Nash, Wellcome, Frost, Guenther & Zimmer, Page Wellcome argued, Bozeman, for defendant, third party plaintiff and appellant.
    A. Michael Salvagni, Co. Atty., Thomas R, Anacker argued, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, Richard McClue, appeals from the order of the District Court, Eighteenth Judicial District, County of Gallatin, enjoining him from taking the office of Gallatin County surveyor, dismissing his counterclaim for writ of mandamus and petition for writ of mandamus, declaring the office of Gallatin County surveyor vacant, and awarding respondents their costs and attorney fees for their defense of the counterclaim for writ of mandamus.

On November 6, 1984, a general election was held in Gallatin County, Montana. The office of county surveyor was listed on the ballot, but there were no candidates listed for the surveyor office. McClue received the highest number of write-in votes for the office of county surveyor. On November 21, 1984, the Board of County Canvassers certified McClue as the person having the highest number of votes for the office.

On November 23, 1984, Gary Pringle, the Gallatin County Clerk and Recorder and election administrator, orally notified McClue of the results of the election. On November 26, 1984, Pringle issued a certificate of election to McClue and later delivered the certificate of election to him.

On December 31, 1984, respondent, Gallatin County Board of County Commissioners, filed a complaint for permanent injunction against McClue. A temporary restraining order and order to show cause were issued restraining McClue from taking the oath of office and taking the office of Gallatin County surveyor. On January 4, 1985, a show cause hearing on the temporary restraining order was held in open court. After the hearing, the District Court issued an order granting a preliminary injunction.

On April 29, 1985, a hearing was held on McClue’s writ of mandamus. McClue testified at the hearing that he was a resident of Bozeman, Montana, and a seismic surveyor. He also testified that he is not a licensed professional engineer, but that he had served in the U.S. Army for three years as a surveyor and did construction and topographic surveying. McClue also spent eight months surveying with the Montana Highway Department and a year and a half with Sage Engineers in Billings doing general surveying work including subdivisions. For the three and a half years prior to his election he had been involved in oil exploration. McClue detailed his education as five months pre-engineering in Billings and a Bachelor of Science degree in mechanical engineering technology from Montana State University. The record of this case also discloses that at least ten other county surveyors currently holding office do not meet the qualifications of Section 7-4-2801, MCA.

Prior to being amended in 1985, Section 7-4-2801, MCA (1983) provided for the qualifications for the office of county surveyor as follows:

“[1] A county surveyor shall be a professional engineer, not less than 22 years of age, who shall have been in active practice of his profession for at least 3 years and who shall have had responsible charge of work as a principal or assistant for at least one year. Graduation from a school of engineering shall be considered as equivalent to 2 years of active practice.”

The District Court found McClue was not a professional engineer and had not been duly registered and licensed as a professional engineer by the Board of Professional Engineers and Land Surveyors for the State of Montana. The District Court also determined that Section 7-4-2801, MCA, is constitutional under the 1972 Montana Constitution. Accordingly, the District Court enjoined McClue from taking office, dismissed his petition for writ of mandamus, ordered the office of Gallatin County surveyor vacant, and awarded costs and attorney fees to Gallatin County and Gary Pringle.

McClue raises one issue for our review: whether the District Court was correct in concluding that McClue, the person duly elected as county surveyor of Gallatin County, is prevented from holding the office because he is not a licensed professional engineer in Montana.

McClue contends that Section 7-4-2801, MCA, which was enacted by the Montana legislature as Section 1, Ch. 50, Laws of Montana (1919), and re-enacted as Section 4835, R.C.M. (1921), Section 4835, R.C.M. (1935), and Section 16-3301, R.C.M. (1947), is unconstitutional under the 1889 Montana Constitution, Art. IX, Section 11. Gallatin County, however, contends that Section 7-4-2801, MCA is constitutional both under the provisions of our 1889 Constitution as amended and the 1972 Montana Constitution. To understand the parties’ respective arguments, a history of the pertinent constitutional and statutory provisions is necessary.

Art. IX, Section 11, of the 1889 Montana Constitution provided: “Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this constitution, and subject to such additional qualifications as may be prescribed by the legislative assembly for city offices and offices hereafter created.”

The office of county surveyor was created as a constitutional office in the 1889 Montana Constitution which provided in Art. XVI, Section 5 as follows: “There shall be elected in each county the following officers . . . one county surveyor;. . .” In 1919, the Montana legislature enacted Section 1, Ch. 50, Laws of Montana (1919), which was the predecessor to Section 7-4-2801, MCA. The statute remained unchanged in our codes until the legislature amended it in 1985. Section 7-4-2801, MCA, clearly provides for additional qualifications for the office of county surveyor that are not provided for in the 1889 Constitution.

In 1935, an opinion of the Montana Attorney General was issued which found Section 4835, R.C.M. (1921), a predecessor to Section 7-4-2801, MCA, to be unconstitutional because it required additional qualifications for the office of county surveyor which were not required by the 1889 Constitution. The opinion provides:

“Since the amendment of Section 10 of Article IX of the constitution in November, 1924, Section II of the same Article, so far as applicable here, is to the effect that any person qualified to vote at general elections and for state officers shall be eligible to any of the offices mentioned above except that of county superintendent of schools. Section 2 of Article IX of the constitution, as amended in November, 1932, prescribes the qualifications necessary to entitle a person to vote at general elections and for state officers, as follows: He must be of the age of twenty-one years or over; a citizen of the United States; a resident of the state for one year immediately preceding the election at which he offers to vote, and of the town, county or precinct for such time as the law might lay down.

“The constitution having prescribed the qualifications required of a county surveyor, the legislature was without power to supplement the constitutional pronouncement by such legislation as Section 4835, supra.”

16 A.G. Op. 194 (1935).

In addition, McClue cites the court to two other Montana cases that stand for the proposition that statutes which require additional qualification for an office which are not required by the constitution are unconstitutional. See State ex rel. Palagi v. Regan (1942), 113 Mont. 343, 355, 126 P.2d 818, 825; State ex rel. Chenoweth v. Acton (1904), 31 Mont. 37, 43, 77 P. 299, 301-02.

In 1937, at the next session of the Montana legislature following the above-cited Attorney General’s opinion, a bill was passed which provided for a proposed amendment to Art. XVI, Section 5 of the 1889 Montana Constitution. Ch. 93, Laws of Montana (1937). This bill was approved by the legislature on March 12, 1937, and was adopted at the November 8, 1938 general election and became effective under Governor’s Proclamation of December 2, 1938. Following the amendment, Art. XVI, Section 5 provided in pertinent part as follows:

“There shall be elected in each county the following county officers who shall possess the qualifications for suffrage prescribed by Section 2 of Article IX of this Constitution and such other qualifications as may be prescribed by law:

“. . . one county surveyor,. . . . (Emphasis added.)”

The clear intent of the constitutional amendment was to do away with the constitutional infirmity discussed in the Attorney General’s Opinion in 1935.

Finally, with the adoption of the 1972 Montana Constitution, Art. XVI, Section 5 was replaced by Art. XI, Section 3, of the 1972 Montana Constitution, which provides:

“(2) One optional form of county government includes, but is not limited to, the election of ... a surveyor, .... The terms, qualifications, duties, and compensation of those offices shall be provided by law. (Emphasis added.)

Both parties agree that if the constitutionality of Section 7-4-2801, MCA, is tested under the 1889 Montana Constitution prior to the 1938 amendment thereto it is unconstitutional. Both parties, however, also agree that if the constitutionality of Section 7-4-2801, MCA, is tested under the 1889 Montana Constitution as amended in 1938 or the 1972 Montana Constitution, the statute is constitutional. Thus, the question is which constitutional provision controls.

Both parties agree that the constitutionality of a statute should be tested by the constitution which was in force when the law was enacted. State ex rel. Woodahl v. Straub (1974), 164 Mont. 141, 146, 520 P.2d 776, 779. Gallatin County contends and the District Court agreed, that the constitution in effect when Section 7-4-2801, MCA was enacted was the 1972 Montana Constitution. Gallatin County argues that the re-enactment and adoption of Section 7-4-2801, MCA in the 1947 and 1979 recodification process by the legislature served as separate enactments of the statute, thus requiring that Section 16-3301, R.C.M. (1947) be tested against the 1889 Constitution as amended and that Section 7-4-2801, MCA be tested against the 1972 Constitution. Section 12-330, R.C.M. (1947) provided:

“The Revised Codes of Montana, 1947 ... are hereby, as to both form and substance, approved, legalized and adopted as the laws of Montana now in force and effect and the same are hereby declared to constitute the laws of Montana now in force and effect . . . .” Section 1-11-103, MCA, provides:

“(1) The Montana Code Annotated shall be enacted as a reenactment of the Revised Codes of Montana, 1947, and the supplements thereto.

“(3) The Montana Code Annotated shall be given effect as a continuation of the Revised Codes of Montana and not as a new enactment .... (Emphasis added.)”

Gallatin County cites this Court to a number of cases that stand for the proposition that each recodification of our code should serve as a separate enactment or re-enactment of the statutes included therein. See, Atlas Life Insurance Company v. Rose (Okla. 1946), 166 P.2d 1011; In Re Berg’s Estate (1941), 139 Neb. 99, 296 N.W. 460.

McClue contends that the constitution in effect when the predecessor of Section 7-4-2801, MCA was enacted in 1919 was the 1889 Constitution and that the subsequent constitutional changes in 1938 and 1972 have no effect. McClue is correct that a statute unconstitutional when it takes effect is not resurrected by a subsequent constitutional change. State ex rel. Woodahl v. District Court (1973), 162 Mont. 283, 511 P.2d 318. It is also true that the test of a statute’s constitutionality is to be made at the time it takes effect and is to be made against the constitution as it exists at the time the statute takes effect. State ex rel. Woodahl v. Straub, 164 Mont. at 146, 520 P.2d at 779.

The recodification of our code is merely a ministerial and administrative function performed by the code commissioner under the authority of the legislature. For us to hold that the legislature intended to remove the constitutional infirmity in this statute pursuant to the 1947 and 1979 recodifications would be to give a meaning to this process which was never intended by the legislature. The reality of this case is that the predecessor of Section 7-4-2801, MCA was enacted in 1919 and was unconstitutional under Art. IX, Section 11 of our constitution as it then existed. The District Court denied McClue his right to hold office based upon a statute that was unconstitutional in its inception, and that had not been properly re-enacted under the 1972 Constitution at the time McClue was elected.

We reverse and remand this case to the District Court with instructions to issue McClue’s writ of mandamus and to award him costs and reasonable attorney fees.

We reverse and remand.

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


text:
    GREGORY D. OSTERMILLER, Plaintiff and Appellant, v. MICHAEL ALVORD, Defendant and Respondent.
    No. 85-466.
    Submitted on Briefs May 9, 1986.
    Decided June 25, 1986.
    720 P.2d 1198.

      Nash, Wellcome, Frost, Guenther & Zimmer, Page Wellcome, Bozeman, for plaintiff and appellant.
    Poore, Roth & Robinson, Douglas A. Buxbaum, Butte, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff Gregory Ostermiller appeals in this dental malpractice action. The District Court for Gallatin County entered a judgment on a jury verdict for defendant. We affirm.

The issues are:

1. Was it error for the court to allow defense counsel to communicate with a treating physician of the plaintiff during trial, without the plaintiff’s consent?

2. Did the court err by allowing certain expert testimony and by allowing Dr. Black to testify?

3. Was the jury’s verdict supported by substantial credible evidence?

Plaintiff first visited defendant, a dentist, in December 1981 to have a wisdom tooth pulled. He had five additional appointments with defendant between December 1981 and April 1982. On April 13, 1982, defendant pulled two more of plaintiff’s wisdom teeth. Prior to the extraction, defendant discussed with plaintiff the possibility of bleeding, swelling, and discomfort, but he did not discuss the possibility of a serious post-extraction infection. Defendant instructed plaintiff to call him at any time if there were problems following the extraction.

Three days after the extraction, plaintiff went to defendant’s office complaining of severe pain and swelling on the left side of his face. Following an examination, defendant prescribed a broad-spectrum antibiotic to combat any infection that might be present. However, the swelling and pain did not go away. Plaintiff saw defendant again on the 19th to have his stitches removed, but no additional treatment was given because defendant believed that the infection was diminishing.

By the next night, plaintiff’s pain and swelling had become so intense that he had to be driven to the hospital, and defendant was immediately called there. After examining plaintiff, defendant concluded that plaintiff was experiencing serious post-extraction infection, and called in Dr. Stephen Black, an oral and maxillofacial surgeon. Dr. Black performed two operations on plaintiff to drain the infection, providing temporary relief of the condition. However, plaintiff did not completely recover until March of 1983 when two small bone chips were removed from his cheek at the University of Washington Medical Center.

I

Was it error for the court to allow defense counsel to communicate with a treating physician of the plaintiff during trial, without the plaintiff’s consent?

Near the close of plaintiff’s case at trial, defendant's counsel asked plaintiff’s counsel whether he intended to call Dr. Black, one of plaintiff’s treating physicians. This inquiry was made before the court and on the record, but the jury was not present. Although Dr. Black had been deposed and references had been made to his treatment notes during plaintiff’s direct examination of defendant, plaintiff answered that he did not intend to call Dr. Black. Defendant’s counsel then requested the court’s permission to meet with Dr. Black to prepare testimony for use in defendant’s case. Plaintiff’s counsel objected to any extrajudicial communication between defendant’s counsel and Dr. Black, based on Jaap v. District Court of Eighth Judicial Dist. (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280. The court did not prohibit the interview, which was conducted that evening with plaintiff’s counsel present. The next day Dr. Black appeared as a witness for defendant.

Parties to litigation waive any physician-patient privilege as to the mental or physical condition in controversy. Rule 35(b)(2), M.R.Civ.P, However, this Court held in Jaap that a district court does not have the power to order a private interview between counsel and possible adversary witnesses, or to attempt to enforce any method of discovery not provided for by the Montana Rules of Civil Procedure. Jaap, 623 P.2d at 1391-92. The holding in Jaap does not apply here. In this case, defendant’s request to meet with Dr. Black was made near the end of plaintiff’s case at trial, after plaintiff had said he did not intend to call Dr. Black as a witness. At that point, Dr. Black could not be classed as a possible adversary witness as far as the defendant was concerned. Dr. Black was a treating physician with significant knowledge of the course of treatment of plaintiff. Defendant’s counsel had previously listed Dr. Black as a possible witness. The interview by defendant’s counsel can better be described as a means of reviewing a witness’s testimony than as a means of discovery. Because the witness was not a witness for the plaintiff, and because the inquiry was made during the course of trial, normal discovery limitations as referred to in Jaap did not apply. In response to the defense counsel’s invitation, plaintiffs counsel was present during the interview. We conclude that it was not error to allow the interview to take place.

II

Did the court err by allowing certain expert testimony and by allowing Dr. Black to testify?

Plaintiff contends that Dr. Kenck’s expert testimony about defendant’s general ability to recognize and treat infections and his capability and conscientiousness as a dentist was impermissible character evidence under Rule 404, M.R.Evid. Plaintiff also argues that Dr. Black’s testimony should not have been admitted because he was not disclosed as an expert witness in defendant’s answers to interrogatories.

A malpractice action necessarily involves the issue of whether the defendant exercised the required skill and care in his treatment of the patient. This is almost always a matter of opinion. Plaintiff’s first witness was the defendant, who testified as to the procedures he followed in his treatment of plaintiff, which he stated were his standard procedures. Plaintiff’s expert Dr. Morton later testified at length that, in his opinion, defendant failed to obtain a valid informed consent because he failed to mention the possibility of infection, that defendant should have taken X-rays of plaintiff’s mouth for evidence of existing infection, that defendant did not provide appropriate home care instructions, and that defendant failed to recognize and respond appropriately to the infection. Dr. Kenck was also called as plaintiff’s expert. Plaintiff elicited testimony from Dr. Kenck that he would refer patients with severe post-extraction facial infection to a family physician or to Dr. Black for an intramuscular injection of penicillin. He also testified that he would judge the severity of an infection by the amount of swelling present, and that he examines extraction patients after 24 hours for signs of infection. On cross-examination he testified that he had not examined plaintiff’s treatment records. On cross-examination, Dr. Kenck also acknowledged that over the years he had known defendant professionally, he had formed the judgment that defendant is a good, capable, and conscientious dentist; he had never known defendant to be incapable of making a judgment as to whether an infection had progressed to the point that the patient should be referred to a specialist; and he believed defendant was capable of judging the type of antibiotic therapy appropriate for a post-extraction infection.

We do not approve the form of the questions to Dr. Kenck because we recognize that they could be construed as eliciting inadmissible character evidence. However, viewing the three questions to which plaintiff specifically objects in light of all of Dr. Kenck’s testimony, we conclude that his answers were properly admitted on cross-examination.

Plaintiff also objects to the admission of Dr. Black’s testimony because Dr. Black’s name was not listed in the defendant’s answers to interrogatories requesting the names of the expert witnesses who would be called at trial. That contention ignores the information actually furnished to the plaintiff. In defendant’s May 10,1984 answer to an interrogatory regarding known witnesses, the defendant advised the plaintiff that Dr. Black was a witness. This was almost 10 months prior to trial. Dr. Black was listed by the defendant as a witness in the pretrial order dated February 20, 1985. Further, Dr. Black was deposed by both parties prior to trial. Dr. Black was a treating physician for the plaintiff and in no way could be classed as a surprise witness. Plaintiff has not contended that he was surprised in any respect by the testimony of Dr. Black. He has only argued that defendant failed to list Dr. Black as an expert witness. We find that such an argument is hyper-technical in view of the information furnished to the plaintiff. We conclude that the admission of Dr. Black’s testimony was proper.

III

Was the jury’s verdict supported by substantial credible evidence?

After the jury rendered its verdict in defendant’s favor, plaintiff moved for a new trial based on insufficiency of the evidence. The District Court denied that motion. Plaintiff again argues here that the verdict and judgment entered below are against the weight of the evidence. In support, he refers to Dr. Black’s opinion that plaintiff’s infection arose as a result of the extraction of the tooth.

The transcript also shows that Dr. Black testified that, in his opinion, defendant exercised the usual degree of skill and judgment in referring patients to specialists. Two dentists called by defendant as experts reviewed the facts and medical record of this case and testified that, in their opinions, defendant was not negligent in his treatment or referral of plaintiff. They testified that in a small percentage of tooth extractions, portions of tooth root break off, and an infection like the one suffered by plaintiff can result. In their opinions, defendant did not negligently omit to do anything which could have prevented this, or do anything to negligently cause it. They also testified that infections such as the one plaintiff suffered are so rare that they should not be routinely discussed with patients as a possible outcome of a tooth extraction, that infections can worsen dramatically in a very short time, and that defendant adequately monitored plaintiff’s progress after the extraction. We hold that there is substantial evidence in the record to support the jury’s verdict.

Affirmed.

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


author: MR. JUSTICE MORRISON MR. JUSTICE WEBER,

text:
    LINDA J. MILLER, Plaintiff and Appellant, v. FALLON COUNTY, Cecil P. Miller, Davis Transport, Inc., and Prefab Transit Co., Defendants and Respondents.
    No. 85-350.
    Submitted March 14, 1986.
    Decided June 26, 1986.
    Rehearing Denied Aug. 5, 1986.
    721 P.2d 342.

      Lucas & Monaghan, A. Lance Tonn argued, Miles City, for plaintiff and appellant.
    Anderson, Edwards & Molloy, Donald W. Molloy argued, Billings, for Miller.
    Anderson, Brown Law Firm, Steven J. Harman argued, Billings, for Davis Transport.

      Moulton Law Firm, Sidney R. Thomas argued, Billings, for Prefab Transit.
    Denzil R. Young, Baker, Calvin J. Stacey, Billings, for defendants and respondents.
    Rossbach & Whiston, Missoula, for amicus curiae Rosina Woodhouse.
    Sandall, Cavan, Smith, Howard & Grubbs, W. Corbin Howard, Billings, for amicus curiae Audrey D. Noone.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Linda J. Miller appeals judgment of the Sixteenth Judicial District Court, County of Fallon, which granted summary judgment to defendants, Cecil P. Miller (Miller), Davis Transport, Inc. (Davis), and PreFab Transit Co. (PreFab). We reverse.

Linda Miller (appellant) was injured in a one vehicle truck accident. Her husband, Cecil Miller, an independent truck driver, was the driver of the truck. Miller had entered into a contract for services with Pre-Fab on August 3, 1982. As part of that contract, Miller delivered a load of mobile home frames from Elkhart, Indiana, to Belgrade, Montana. The delivery was made November 2, 1982.

Appellant accompanied her husband on the trip. They stayed in Belgrade, Montana, the night of November 2. The next day, Miller, on behalf of PreFab, entered into a contract with Davis whereby Miller agreed to haul a load of lumber from Townsend, Montana, to Minnesota for Davis. The accident occurred November 3, 1982, while the Millers were traveling to Minnesota. Appellant was thrown from the truck and is now a paraplegic.

She filed an action March 22,1984, against Fallon County, alleging negligent design of a roadway; Miller, alleging negligent, careless and unlawful operation of a vehicle; Davis, alleging vicarious liability for Miller’s negligence; and PreFab, alleging vicarious liability for Miller’s negligence. The vicarious liability actions are premised on allegations that Miller was the employee of Davis and/or PreFab at the time of the accident.

Miller, Davis and PreFab filed motions for summary judgment on the basis of interspousal tort immunity. PreFab additionally sought summary judgment on the basis of the following pre-injury release form signed by appellant on September 12, 1981:

“Application to travel with my husband.

«* * *

“Furthermore, in the event of an accident or other manner wherein I may lose my life, be injured, or in any way contribute to the injury or loss of life to another, I hereby waive any rights whatsoever against Pre-Fab Transit Co. for what otherwise might be its liability and agree that Pre-Fab Transit Co., its agents, employees and contractors are to be held harmless in all respects by virtue of my being a passenger in said vehicle.”

The motions were briefed and argued. Thereafter, the District Court granted the motions for summary judgment on the basis of interspousal tort immunity. The pre-injury release was also held to support PreFab’s motion. Following Rule 54(b), M.R.Civ.P., certification, notice of appeal was timely filed. The following issues are raised:

1. Whether the District Court committed reversible error in granting summary judgment in favor of Miller on the basis of the defense of interspousal tort immunity?

2. Whether the District Court committed reversible error in granting summary judgment in favor of Davis and PreFab on the basis of its finding that the defense of interspousal tort immunity is available to a spouse’s employer?

3. Whether the District Court committed reversible error by granting summary judgment to PreFab on the basis of a waiver given to PreFab by appellant.

THE DOCTRINE OF INTERSPOUSAL TORT IMMUNITY

The doctrine of interspousal tort immunity derives from the common law. When Montana became a state, it adopted the common law of England as “the rule of decision in all the courts of this state.” Section 1-1-109, MCA. The doctrine of interspousal tort immunity is a creature of court decision and subject to change by the courts. Fernandez v. Romo (Ariz. 1982), 646 P.2d 878, 880. Brooks v. Robinson (Ind.1972), 284 N.E.2d 794, 797.

This Court has previously refused to abolish the doctrine of interspousal tort immunity. Conley v. Conley (1932), 92 Mont. 425, 15 P.2d 922; Kelly v. Williams (1933), 94 Mont. 19, 21 P.2d 58; State ex rel. Angvall v. District Court (1968), 151 Mont. 483, 444 P.2d 370; and State Farm Mutual Automobile Ins. Co. v. Leary (1975), 168 Mont. 482, 544 P.2d 444. However, judicial modification of the common law is sometimes required to prevent great injustice or to insure that the common law is consonant with the changing needs of society. Digby v. Digby (R.I.1978), 388 A.2d 1. In fact, “[t]he strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.” Brooks v. Robinson, 284 N.E.2d at 797.

The doctrine of stare decisis is not an impenetrable bar to conforming common law to the needs of a dynamic and evolving culture:

“This Court recognizes that courts may have previously fashioned a rule of immunity from wrongdoing, having adopted a posture at an earlier date in response to what appeared to be desirable then as a matter of policy; yet when it later appears to be unsound within a given context, especially when the reasons upon which the immunity is based no longer exist, it remains within the domain of the judiciary to reject the applicability of such a rule.”

Luna v. Clayton (Tenn. 1983), 655 S.W.2d 893, 897.

The historical reasons for retention of immunity are: 1) unity — the common law concept that husband and wife are one person; 2) family harmony; and 3) the possibility of fraud and collusion. These reasons no longer dictate such a harsh and absolute result. See Tobias, “Interspousal Tort Immunity in Montana”, 47 Mont.L.Rev. 23 (1986).

The concept of unity originated at a time when a woman relinquished her rights as an individual when she married.

“The ‘supposed unity’ of husband and wife, which serves as the traditional basis of interspousal disability, is not a reference to the common nature or loving oneness achieved in a marriage of two free individuals. Rather, this traditional premise had reference to a situation, coming on from antiquity, in which a woman’s marriage for most purposes rendered her a chattel of her husband.”

Freehe v. Freehe (1972), 81 Wash.2d 183, 500 P.2d 771, 773. The concept of unity is outmoded and has been significantly eroded by both statutory and case law.

Family harmony will not be destroyed by the filing of a lawsuit. If a family is sound, it will most likely survive the legal action. A weak family bond cannot be strengthened by our judicial system.

“[I]t is difficult to perceive how any law barring access to the courts for personal injuries will promote harmony. If this were a valid sociological consideration, the Legislature could orchestrate even greater harmony by abolishing the statute giving the right to divorce.” Coffindaffer v. Coffindaffer (1978), 161 W.Va. 567, 244 S.E.2d 338, 342.

The destruction of family harmony is even less of a concern because of insurance. A spouse is normally not seeking redress against the other spouse, but rather spouse’s insurance carrier. See Fernandez, 646 P.2d at 881-882. In Transamerica Insurance Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820, 40 St.Rep. 12, we recognized the effect of insurance on suits against parents by their minor children. The same rationale applies here. “The existence of liability insurance prevents family discord and depletion of family assets in automobile negligence cases . . . (Citations omitted.)” Royle, 656 P.2d at 823, 40 St.Rep. at 16.

Our decision in Royle, 656 P.2d at 823-824, 40 St.Rep. at 16. is also instructive concerning the problems of fraud and collusion. The possibility of fraud and collusion exists throughout all litigation. One of the many functions of a judge or jury is to determine the facts of the case, including the potentially collusive aspect of the parent-child or interspousal relationship. Thus, the possibility of fraud or collusion is not sufficient reason to warrant continued reliance on interspousal tort immunity. The defense is abolished in Montana. Previous decisions to the contrary, cited above, are overruled.

The abolition of the doctrine of interspousal tort immunity renders unnecessary consideration of whether the doctrine is available to the allegedly-negligent spouse’s employer.

THE EFFECTS OF THE PRE-RELEASE FORM

More than a year prior to the accident, appellant requested and received permission from PreFab to ride with her husband on interstate trips. In return, PreFab insisted that she sign a document entitled “Application to Travel with My Husband” which states in pertinent part:

“Furthermore in the event of an accident or other manner wherein I may lose my life, be injured, or in any way contribute to the injury or loss of life to another, I hereby waive any rights whatsoever against Pre-Fab Transit Co. for what otherwise might be its liability and agree that Pre-Fab Transit Co., its agents, employees and contractors are to be held harmless in all respects by virtue of my being a passenger in said vehicle. (Emphasis supplied.)

The trial judge held that this waiver absolves PreFab from any liability with respect to appellant. On appeal, appellant contends the waiver is unenforceable because it is against public policy.

The waiver constitutes a private contract between private individuals. Generally, private parties are allowed to contract away liability for negligent acts if the interest of the public is not involved and the contracting parties stand on equal footing. Checkley v. Illinois Central Railroad Co. (1913), 257 Ill. 491, 100 N.E. 942; Haynes v. County of Missoula (1973), 163 Mont. 270, 279-280, 517 P.2d 370, 376. See also Speiser, Krause and Gans, The American Law of Torts, Section 5:39, p. 1095 (1983).

“A different result has obtained where a facility of service is offered as a matter of convenience — rather than one of necessity. In such instances, if the user assumes a risk of loss, there appears to be no basis for holding the exculpatory provision invalid on the ground that the parties were in an unequal bargaining position inasmuch as the user is under no compulsion to accept the offer of service or its terms.”

However, the fact that the waiver is a private contract is not determinative in this case. We must also decide whether the waiver is in violation of Section 28-2-702, MCA, which states:

“Contracts which violate policy of the law — exemption from responsibility. All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful of negligent, are against the policy of the law.”

This Court has never before had occasion to interpret the statute. It was adopted verbatim from California in 1895.

“Montana follows the rule of statutory construction that where a statute is adopted from a sister state, it is ordinarily presumed that the legislature borrows the construction placed upon it by the highest court of the state from which it is borrowed, Although such construction is not binding upon this Court. (Citations omitted.) Lawrence v. Harvey (1980), 186 Mont. 314, 321, 607 P.2d 551, 556. We therefore find the interpretation of the statute by the California Supreme Court in Tunkl v. Regents of University of California (1963), 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33, to be persuasive. Consistent with that decision, we hold that the words “his own” qualify the term “fraud,” as well as the terms “willful injury to the person or property of another” and “violation of law, whether willful or negligent.”

Next we must determine whether “his own” includes the employer as well as the employee. In Tunkl, supra, the California court held that its equivalent statute applies equally to a “corporation’s ‘own’ liability and vicarious liability resulting from negligence of agents.” 383 P.2d at 448, 32 Cal-Rptr. at 40. Likewise, we hold that our statute applies to a corporation’s vicarious liability.

To summarize, Section 28-2-702, MCA, is interpreted to mean that no person or corporation may contract to exempt himself or itself from responsibility for his, its or its employee’s: (1) fraud; (2) willful injury to the property or person of another; (3) negligent or willful violation of law.

But, what is meant by the term “violation of law, whether willful or negligent?” The California Supreme Court has not resolved this question. However, the legal meaning of the terms contained in the phrase is undisputed. Law consists of constitutions, Wickham v. Grand River Dam Authority (1941), 189 Okl. 540, 118 P.2d 640, 643; statutes and case law, Erie Railroad Co. v. Tompkins (1938), 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188, 1194; as well as common law, Fenn v. Holme (1859), 62 U.S. 481, 486, 21 How. 481, 486, 16 L.Ed. 198, 200. Thus, pursuant to the clear and unambiguous language of Section 28-2-702, MCA, an entity cannot contractually exculpate itself from liability for willful or negligent violations of legal duties, whether they be rooted in statutes or case law. We therefore determine the statute has application in this setting.

The dissent contends that Section 28-2-702, MCA, invalidates only those waivers which affect the public. This contention is contrary to the specific words of the statute. The statute itself states that any contract which exempts anyone from responsibility for fraud, willful injury or the willful or negligent violation of law, is against the policy of the law. Nothing in the statute limits its application to contracts which involve the public interest. Thus, even a waiver which constitutes a private contract between private individuals is invalid, and in violation of public policy, if it seeks to exempt one from liability for those actions specified in the statute.

Contrary to PreFab’s allegations, Congress has not preempted this area of law by enacting the Interstate Commerce Act. The relevant statute is 49 U.S.C. Section 10722(d)(2) (1982), which states in pertinent part:

“A common carrier providing transportation subject to the jurisdiction of the Commission . . . may provide transportation, without charge for officers and employees (and their families) of that carrier, another carrier (by exchange of passes or tickets), or a telegraph, telephone, or cable company.”

This section allows PreFab to provide free transportation to certain specified individuals, including appellant. It does not regulate the liability which potentially accompanies the provision. Therefore, Montana is free to legislate with respect to the liability incurred. Eisenman Seed Co. v. Chicago, Milwaukee, St. Paul and Pacific Railroad (1973), 161 Mont. 197, 203, 505 P.2d 81, 84.

Finally, again contrary to PreFab’s allegation, Illinois law should not control. We recognize that the contract between PreFab and Miller originated in Illinois. However, Section 28-2-702, MCA, delineates the types of contracts Montana will refuse to recognize regardless of their origin.

We remand this cause to the trial court. If liability is found based upon a willful or negligent violation of law, the waiver as it pertains to PreFab, Davis and Miller violates Section 28-2-702, MCA, and may not be relied on by any of the three defendants.

Reversed and remanded.

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

MR. JUSTICE WEBER,

dissenting:

I concur with the majority opinion and its abolition of the doctrine of interspousal tort immunity. I dissent from its conclusion with regard to the pre-release form.

I disagree with the majority conclusion that a negligent violation of law by PreFab, Davis or Miller constitutes a violation of Section 28-2-702, MCA, so that the waiver may not be relied on.

The majority opinion points out that this Court has never had occasion to interpret Section 28-2-702, MCA, and further points out that the statute was adopted verbatim from California in 1895. The majority then concludes that the interpretation of the statute by the California Supreme Court in Tunkl is persuasive. Unfortunately the rationale of the majority opinion actually is strikingly different from the rationale in Tunkl. The majority concludes that under Section 28-2-702, MCA, an entity cannot contractually exculpate itself from liability for negligent violations of legal duties whether they are rooted in statutes or case law. Tunkl approached the same code section with an entirely different rationale.

Tunkl emphasized that the code section had been interpreted in various ways by California cases, some strictly, some very liberally so that the authority for Tunkl under California cases was limited. Tunkl did emphasize that all of the California cases consistently held that the exculpatory provision of the code section would stand only if the public interest was involved. Tunkl then set forth a number of factors to be considered in determining whether or not the public interest was effected by the release agreement. Included are such factors as whether it is a business which is suitable for public regulation; whether a party is performing a service of great importance to the public which is practically necessary to the public; whether a party is willing to perform this for any member of the public; whether there is an essential nature of services being performed and a decisive advantage in bargaining strength; whether there is superior bargaining power and a standardized adhesion contract; and whether a party is placed under the control of the party to be exculpated. Clearly the present case does not set forth facts justifying the application of the public interest rule under Tunkl. In other words, if the rationale of Tunkl were applied in the present case, the holding would be contrary to the majority opinion here.

In Tunkl the California court distinguished private voluntary transactions from public interest cases and stated:

“While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances pose a different situation.”

Tunkl, 383 P.2d at 446, 32 Cal.Rptr. at 38. This Court applied the rationale of Tunkl in Haynes v. County of Missoula (1973), 163 Mont. 270, 517 P.2d 370. Even though this Court was interpreting Section 28-2-702, MCA, it followed the public interest rationale of Tunkl and quoted extensively from Tunkl. In addition, this Court in Haynes referred to the provision in Restatement, Contracts, Section 575 making an exemption from liability illegal if a party is charged with the duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation. Without going into Haynes in any more detail, it is clear that this Court adopted the public interest rationale of Tunkl. I therefore conclude that neither Tunkl nor Haynes is authority for the position taken in the present majority opinion.

I dissent from the primary conclusion of the majority opinion that an entity cannot contractually exculpate itself from liability for either willful or negligent violations of legal duties whether they are rooted in statutes or in case law, under the provision of Section 28-2-702, MCA. As I look at this statute which was enacted by our Montana Legislature in 1895, I note that it addresses contracts which are against the policy of the law of this state. Section 28-2-702, MCA, states that all of the following contracts are against the policy of Montana: contracts which exempt anyone from responsibility for fraud, willful injury to person or property, or violation of law, whether willful or negligent. It is clear that in order to discourage anyone exempting himself for his own fraud, such a provision is appropriate. In a similar manner, it is appropriate to eliminate an exemption for willful injury to person or property. This leaves the last portion which is the violation of law, whether willful or negligent. Again there is a clear policy apparent in a prohibition which applies to willful violation of law. That element is not present in this case. This leaves only the question of the negligent violation of law. I conclude that negligent torts were not contemplated by this section.

I invite the attention of our Montana Legislature to the majority opinion in order that it may determine if it approves of the interpretation of Section 28-2-702, MCA.

MR. JUSTICE GULBRANDSON joins in the foregoing dissent of MR. JUSTICE WEBER.


author: MR. JUSTICE GULBRANDSON

text:
    In re the MARRIAGE OF JANET LYNN PURKETT, Petitioner and Respondent, and RODNEY NEIL PURKETT, Respondent and Appellant.
    No. 85-516.
    Submitted on Briefs March 6, 1986.
    Decided July 8, 1986.
    721 P.2d 349.

      Fausto G. Turrin, Great Falls, for respondent and appellant.
    Hilley & Loring, Emilie Loring, Great Falls, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Rodney Neil Purkett, the father, appeals an order of the Cascade County District Court increasing his child support payments to $250 per month for each of two children. On appeal, he raises issues concerning the District Court’s procedure at the hearing, visitation, increased child support and the property settlement agreement. We affirm.

The father and Janet Lynn Purkett, the mother, divorced in May 1983. The mother was awarded custody of the two children with reasonable visitation to the father. At the time, the mother and father were both employed full time and the mother was awarded child support of $150 per month, per child.

In February 1985 the mother requested an increase in child support alleging a change in circumstances so substantial and continuing as to make the original payment unconscionable. She had lost her job and was unable to find another position. In order to prepare for a career which would permit her to support the children, she enrolled in college. She had earned $2,400 in 1984 from part-time employment. The father’s earnings in 1984 were between $29,600 and $29,800.

The father responded by alleging the mother failed to comply with the property settlement agreement made in 1982, failed to allow him reasonable visitation and made statements to the children in an effort to estrange them from him. He asked that she be held in contempt. Both parties requested costs and attorney’s fees.

The District Court held a hearing on April 29,1985 on the motions made by the parties. The judge conducted the hearing in his chambers with the parties, their counsel, a deputy clerk of court and a court reporter present. After asking about the purpose of the hearing, the judge briefly questioned both parties about what issues were raised and then swore them in to testify. The questioning of the parties was conducted by the judge rather than counsel. He refused to hear testimony of a claimed vocational expert on potential jobs for the mother, offered by the father. Neither party objected to the hearing being held in chambers, the manner of examination or the refusal to hear testimony.

After the hearing, the parties unsuccessfully attempted to reach a compromise on the issues. On July 15, 1985, the mother submitted proposed findings of fact, conclusions of law and order. The father offered none. The District Court adopted the mother’s proposed findings, conclusions and order verbatim. The mother was found not to be in contempt concerning the claimed visitation restrictions and the argument over the property settlement agreement. The District Court found a lack of substantial evidence that she had attempted to estrange the children from their father. The father was ordered to pay the increased child support with the mother retaining custody and the father retaining liberal visitation. Each party was responsible for their own costs and attorney’s fees. The order was in accord with the District Court’s verbal instructions at the hearing.

The father appeals this order raising three issues:

(1) Did the District Court violate the father’s right to due process by holding the hearing in chambers, questioning the parties and refusing offered evidence?

(2) Do the findings of fact on the need for increased child support and the failure to make findings of fact on the visitation dispute constitute clear error?

(3) Did the District Court err by concluding there was not substantial evidence of noncompliance with the property settlement agreement?

In the first issue the father argues that he did not object to the procedural improprieties because to do so would have been fruitless and that counsel for the father did not want to alienate the judge, even though he felt the procedure used constituted plain error. He urges this Court to address the issue because this amounted to a failure to receive a fair and impartial judge thus affecting his substantial rights. Rule 103(d), M.R.Evid., permits this Court to take “notice of plain errors affecting substantial rights although they were not brought to the attention of the court.” In Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169, a marriage dissolution proceeding, the trial judge discontinued the trial after the wife testified but before the husband presented his case. Neither party objected and the trial was never reconvened. This Court adopted the plain error doctrine permitting a reviewing court to consider whether a trial court deprived a litigant of a fair and impartial trial, even though no objection had been made. However,

“[t]he Montana Commission on Rules of Evidence has emphasized that the plain error doctrine ‘will be used in exceptional cases and should not be relied upon by counsel.’ Commission Comments, Rule 103(d) Mont.R.Evid. (1977). Indeed, in Halldorson, supra, we held that ‘the [plain error] exception will not be applied where the failure or refusal to raise the issue in the trial court was conscious and intentional on the part of trial counsel.’ 175 Mont. at 174, 573 P.2d at 172.”

Reno v. Erickstein (Mont. 1984), [209 Mont. 36,] 679 P.2d 1204, 1207, 41 St.Rep. 537, 540. Here, counsel for the father decided as a matter of “trial tactics” to not object in order to avoid alienating the judge. This was a conscious and intentional choice on his part. As such, the plain error exception will not be applied. “It has long been the rule of this Court that on appeal we will not put a District Court in error for a ruling or procedure in which appellant made no objection.” (Citations omitted.) Green v. Green (1978), 176 Mont. 532, 536, 579 P.2d 1235, 1237. We hold that the father’s voluntary participation in the procedures of which he now complains and the intentional choice to not object precludes this Court’s review of this issue.

In the second issue the father argues that no findings were made on the question of visitation ánd that the record does not support the findings on increased child support. The District Court addressed the visitation issue by finding the father had been awarded reasonable visitation and noting he alleged the mother had not permitted the visitation and she had made efforts to estrange the children from him. The District Court concluded that there was a lack of substantial evidence that the mother had attempted or caused any estrangement. In a discussion, the District Court cautioned the parties against disparaging one another in front of the children and encouraged liberal visitation. Finally, the District Court stated in its order that the father retained liberal visitation. We find no merit in the father’s contention that the question of visitation was not addressed.

Section 40-4-208(2)(b), MCA, states the requirements for modifying child support:

“Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification . . . may only be made:

“(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”

The standard of review is whether a district court abused its discretion in modifying the amount of child support. In re the Marriage of Firman (Mont. 1980), 187 Mont. 465, 610 P.2d 178, 37 St.Rep. 888. The father must show that “the facts clearly preponderate against the District Court’s ruling to gain reversal.” (Citation omitted.) In re Marriage of McNeff (Mont.1985), [207 Mont. 397,] 673 P.2d 473, 475, 40 St.Rep. 2050, 2051. In McNeff, this Court held that the mother’s loss of her job was a sufficient change in circumstances to make the original amount of support unconscionable. There, this Court considered the relative needs and abilities of the parties and “how close to this balance the present arrangement is.” McNeff, 673 P.2d at 475, 40 St.Rep. at 2052.

In the case at bar, the record and findings both reflect the following: (1) the mother requested an increase in child support after she lost her full-time job; (2) she was unable to find other full-time employment and enrolled in college to prepare for a career which would enable her to support the children; (3) in 1984, she earned $2,400 from employment; and (4) the father puts a substantial portion of his income into savings and tithing to his church. The findings also noted that by using the parties’ 1984 income from their W-2 forms and applying the formula developed in Carlson v. Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 41 St.Rep. 2419, the father’s total child support would be about $514 per month. When these figures were discussed at the hearing the father did not challenge the figures used or the result of applying the Carlson formula. The mother’s loss of her job was a sufficient change in circumstances to justify raising child support. The findings are based on the standards of Section 40-4-208(2) (b), MCA, and are in accord with the decision in McNeff, supra. We hold that the District Court did not err by increasing the amount of child support.

The father also objects to the District Court’s verbatim adoption of the mother’s proposed findings and conclusions. We continue to disapprove of the wholesale adoption of proposed findings submitted by a party. See In re Marriage of Jensen (Mont. 1981), 631 P.2d 700, 703, 38 St.Rep. 1109, 1113. However, such adoption is not error per se. Here, as in In re Marriage of Benner (Mont. 1985), [219 Mont. 188,] 711 P.2d 802, 805, 42 St.Rep. 1943, 1947, the proposed findings are “sufficiently comprehensive and pertinent to the issues to provide a basis for decision and . . . are supported by the evidence presented.” We will not reverse on this basis.

The father claimed below that the mother failed to comply with the property settlement agreement. His third issue on appeal is whether the District Court erred by concluding substantial evidence did not support this claim. This Court will not disturb the findings and conclusions of a district court if they are supported by substantial, credible evidence. In re Marriage of Sarsfield (Mont. 1983), [206 Mont. 397,] 671 P.2d 473, 40 St.Rep. 1736. The evidence is viewed in light favorable to the prevailing party. Lacey v. Herndon (Mont. 1983), [205 Mont. 379,] 668 P.2d 251, 40 St.Rep. 1375. Here, the father argued that the mother sold tools which were his under the terms of the property settlement. The District Court noted that the decree did not itemize the tools. The mother testified that, after an argument over other personal property, she told the father to take all of his things from the house so that he would not blame her for any further missing items. She stated that he took “every imaginable tool.” She then sold an air compressor that remained at the house. The father sought to have the mother held in contempt, claiming she sold a ladder, a wheel barrow, and an air compressor which were tools awarded to him in the property settlement agreement. At trial he admitted taking all the tools he could find from the house. The District Court concluded that this evidence showed the father took all the personal property he wanted and that there was a lack of substantial evidence showing any noncompliance with the property settlement agreement. Viewing the evidence in a light favorable to the mother, we hold that the District Court’s findings and conclusions are supported by substantial credible evidence.

The order of the District Court is affirmed.

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


text:
    RICHARD WILLOUGHBY and Colleen Willoughby, Plaintiffs and Appellants, v. DON SWEENY, Hugh Spraggins, and A-1 Muffler, Defendants and Respondents.
    No. 86-33.
    Submitted on Briefs May 9, 1986.
    Decided July 8, 1986.
    720 P.2d 1202.

      Vainio & Ramler, Richard A. Ramler, Belgrade, for plaintiffs and appellants.
    Morrow, Sedivy & Bennett, Lyman H. Bennett, III, Nash & Wellcome, Page Wellcome, Bozeman, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court for Gallatin County. The Willoughbys brought suit for loss of use of their pickup truck, and defendant Mr. Spraggins counterclaimed for the value of repair services performed on the truck. After a bench trial, the court ordered that the Willoughbys take nothing by virtue of their complaint and that Mr. Spraggins take nothing by virtue of his counterclaim. We affirm.

The issue is whether the District Court’s conclusion that “the defendants did not wrongfully deprive plaintiffs of their vehicle” is supported by the findings of fact and the law of Montana.

After hearing the evidence, the District Court made lengthy findings of fact, which are not disputed. It found that Mr. Spraggins repaired the transmission of the Willoughby’s 1973 pickup truck in July of 1983, at his business, A-l Muffler. The total cost of the repairs was $367.60. The Willoughbys and Mr. Spraggins agreed that the repair bill would be paid off on a weekly basis, and Mr. Spraggins voluntarily released the truck to the Willoughbys. No payments were ever made.

Two months later, the Willoughbys experienced electrical problems with the truck. They took it to defendant Don Sweeny’s residence, and asked him to repair the electrical system. Mr. Sweeny was not an employee of A-l Muffler, but he towed the Willoughby’s truck to A-l Muffler to use the equipment there to repair the electrical problems. Mr. Spraggins refused him the use of the equipment, because the Willoughbys had not made any payment on their bill. Mr. Sweeny left the truck parked on a lot adjoining A-l Muffler. The District Court found that “Defendant Mr. Spraggins then took possession of the truck to secure payment of his bill.”

Mrs. Willoughby telephoned Mr. Spraggins and asked that the pickup truck be returned. The Willoughbys had the truck towed from A-l Muffler in May 1984. During the time the truck was parked on the lot adjoining A-l Muffler, certain personal property in the camper was either damaged or removed.

The Willoughbys initially filed an action for conversion, but after they took the truck back, they requested damages for the loss of use of the truck and for the value of the items of personal property damaged or removed from it. The District Court concluded in part:

“2. That the defendants did not wrongfully deprive plaintiffs of their vehicle.

“3. That while the vehicle was located at A-l Muffler and Auto Repair, the rear bumper and personal property was stolen from the vehicle.

The Willoughbys argue that conclusion #2 contradicts the requirements of Section 71-3-1201(2), MCA, that an artisan’s lien is “dependent on possession” which requires continuous possession. They argue that any artisan’s lien held by Mr. Spraggins was extinguished when he allowed them to take the truck without paying for the repairs on it. Their position is that conclusion #2 contradicts Montana law.

There was conflicting testimony as to whether Mr. Spraggins prevented the Willoughbys from reclaiming their truck at any time after it was parked in the lot next to A-l Muffler. The Willoughbys testified that Mr. Spraggins denied their request to return the truck. Mr. Spraggins testified that they could have reclaimed the truck at any time, as they eventually did. He testified that the keys were in the truck. Although the court found that Mr. Spraggins “took possession of’ the truck, there was no finding that he prevented the Willoughbys from taking possession of the truck at any time. We conclude that the District Court’s conclusion #2 does not imply that the court found Mr. Spraggins had an artisan’s lien on the Willoughby truck when it was returned to the lot next to A-l Muffler. There is substantial evidence to support conclusion #2 on the basis that Mr. Spraggins did not deprive the Willoughbys of possession of the truck.

We affirm.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    IVAN D. HARDEN and Douglas S. Harden, Plaintiffs and Appellants, v. JOHN YERGER and Patricia Yerger, husband and wife, and Farmers Union Association, Big Horn County, Montana, a Montana corporation, Defendants and Respondents.
    No. 86-46.
    Submitted on Briefs April 30, 1986.
    Decided July 8, 1986.
    721 P.2d 751.
    Moses Law Firm; Bruce E. Becker, Billings, for plaintiffs and appellants.
    Peterson, Schofield & Leckie; K.D. Peterson, Billings, Berg, Coil, Stokes & Tollefsen; Gig A. Tollefsen, Bozeman, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiffs appeal a jury verdict entered against them in the District Court of the Thirteenth Judicial District, Bighorn County. The jury answered on a special verdict that respondents were not negligent toward appellants.

Appellants state the issue as a matter of law on liability of landowners. However, they do not dispute that the jury was correctly instructed on the applicable law at trial. Likewise, appellants did not move for a directed verdict on the issue of respondents’ liability at trial. Therefore, the sole issue is whether the jury’s verdict that respondents were not negligent towards appellants is supported by substantial evidence. If the verdict is supported by substantial evidence in the record, we will not reverse it. See Kleinsasser v. Superior Derrick Services, Inc. (Mont. 1985), [218 Mont. 371,] 708 P.2d 568, 42 St.Rep. 1662.

We affirm.

In mid-April 1983, Walt Watson turned on a water hydrant while watering cattle on the Yerger property. Soon after there was an explosion in the pumphouse. Watson turned off the electricity to the pumphouse, and the fire was extinguished. No one was hurt.

Subsequently, either respondent, John Yerger, or his father, Jake Yerger, had Joe Hanks come out to the property with an explosion meter (a device which measures the concentration of explosive gases). Hanks determined there was an explosive condition in the pumphouse due to the presence of gases. It was not determined, however, whether the gas was natural gas or propane.

The respondents hired a plumber to cap and vent the well to dissipate natural gas out of the pumphouse. At the same time, the plumber repaired the pump. Respondents also had a representative from their propane distributor, Farmer’s Union Association, check their propane tank and the propane line to their trailer for leaks. The underground portion of the line was only checked by a visual check for frosting of the ground surface above the line. Such a check would only reveal rapid leaks. The propane distributor could have used more accurate means to check the line but did not. No leaks were found.

The electric line to the pumphouse also feeds the trailer where respondents live. Therefore, respondents were without electricity after the fire. They hired appellant, Ivan Harden, to wire temporary electrical service to their trailer and to repair the damaged wiring in the pumphouse. Ivan Harden went out to respondents’ property once to provide temporary electricity to the trailer. After the well was vented, Ivan Harden and his son, Doug, returned to repair the pumphouse wiring. While they were working, and while Doug was in the pumphouse and Ivan was in the doorway, the pump kicked on and there was another explosion. Doug was severely burned, and Ivan was also injured.

Tom Selleck, Fire Marshall for the State of Montana, investigated the second fire. He found that the supply line between the propane tank and the Yerger’s trailer had been leaking. Propane, unlike natural gas, is heavier than air. Selleck determined that the leaking propane had flowed through the ground downhill into the pumphouse. As the propane seeped through the ground, the malodorant leached out so that it was without odor in the pumphouse. When the pump kicked on, electric sparks ignited the propane.

Appellants filed a complaint against the Yergers and Farmers Union Association for negligence. After commencement of the trial, appellants settled with Farmers Union. The case against the Yergers was tried before a jury.

The testimony as to which of the actors were aware of the dangerous condition and who informed whom conflicts. However, the jury can choose to adopt testimony offered by one side to the exclusion of the other. See Tompkins v. Northwestern Union Trust Co. (Mont. 1982), [198 Mont. 170,] 645 P.2d 402, 408, 39 St.Rep. 845, 853. Moreover, we review the evidence in the light most favorable to the party prevailing at trial. See Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495.

There was testimony at trial that respondents never communicated to the appellants that working around the pumphouse was safe. There is evidence that appellants were aware of the potentially dangerous condition and did not take reasonable precautions. Finally, there is evidence that respondents took reasonable measures to discover the cause of the dangerous condition and correct it. Therefore, the evidence taken in light most favorable to respondents indicates that respondents were not negligent towards appellants. That is what the jury found. We hold that there is sufficient evidence in the record to support the jury verdict.

Affirmed.

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


author: MR. JUSTICE MORRISON

text:
    FELTON INVESTMENT GROUP, Plaintiff and Appellant, v. WAYNE E. TAURMAN, Derrold O. Paige, Defendants and Respondents. WAYNE E. TAURMAN and Derrold O. Paige, Plaintiffs and Respondents, v. FELTON INVESTMENT GROUP, Defendant and Appellant.
    No. 85-631.
    Submitted on Briefs April 17, 1986.
    Decided July 9, 1986.
    722 P.2d 1135.

      Boone, Karlberg & Haddon, Sam E. Haddon, Missoula, for Felton Inv. Group.
    Datsopoulos, MacDonald & Lind, William K. VanCanagan, Missoula, for Wayne E. Taurman and Derrold 0. Paige.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Felton Investment Group (FIG) appeals the August 20, 1985, order of the Fourth Judicial District Court, County of Missoula, holding that Wayne Taurman (Taurman), and Derrold Paige (Paige) are entitled to receive their pro rata shares of the fair market value of the assets of FIG as of the date their employment with Felton Construction Company (FCC) ended. We affirm.

John Felton is the originator and president of FCC. In 1969 he formed FIG. The purpose of FIG is to provide retirement benefits to certain deserving employees of FCC. Each member of FIG makes weekly contributions which are automatically deducted from the paycheck. The money is then combined and invested. The partners must all agree on the investments to be made.

Initially, FIG was operated as a general partnership, with the only guidelines contained in oral agreements. The October 28, 1969, “Pre-Incorporation Minutes” was the first written document reflecting the purpose behind and terms of FIG. Those minutes state in pertinent part:

“ADMITTANCE: Resolved that admittance is available to anyone employed by Felton Construction Company . . .

“EMPLOYMENT: . . .

“Resolved that if a member ceases employment or is discharged for misconduct, his interest shall be returned in an amount equal to contributions paid into the fund plus 4% simple interest; that the Group shall have a period of one year in which to purchase the stock of such member.

“Resolved that involuntary termination caused by disability, death, or retirement shall not affect such member’s interest.” Taurman was a charter member of FIG. Paige joined in 1970. They participated in FIG’s annual meetings and gave their approval to all decisions until 1974. At that time Felton proposed changing FIG into a limited partnership with Felton as the general and controlling partner. Several of the other partners expressed dissatisfaction with the potential loss of control over their assets. At Felton’s suggestion, they discussed the situation with an attorney who advised the partners not to enter into a limited partnership. Taurman and Paige informed Felton that they did not approve of his plan and would not agree to form a limited partnership.

Felton continued developing his limited partnership concept. FIG continued as a general partnership. Annual meetings were held. Minutes were taken and copies sent to each partner. A summary of resolutions adopted through 1974 included the following:

“7. In the event of termination of employment, except temporary layoff, for a period of 2 weeks, the Group shall vote to eject such persons from membership.

“8. If a member ceases employment or is discharged for misconduct, his interest shall be returned in an amount equal to contributions paid into the fund plus 4% annual interest.”

In December of 1977, Felton presented a proposed limited partnership agreement to the partners for their discussion and comment. A proposed draft was accepted, as revised, and was subsequently given to an attorney for preparation of a preliminary draft. The attorney presented the preliminary draft at the December 1979 meeting.

In the interim, on December 5, 1978, Paige determined his investment in FIG to be in jeopardy due to the proposed limited partnership agreement and ceased contributing to the fund. However, he continued to be employed by FCC until July of 1980. Paige believed himself to still be a member of FIG because he was still employed by FCC. Approximately one year after ceasing to contribute to FIG, Paige received a check from FIG reflecting his contributions to date and interest, $15,040.08. Not wishing to lose his rights in the partnership, Paige refused to endorse and cash the check.

Taurman continued investing in FIG until July of 1980. At that time, he was employed by FCC in Sunburst, Montana. Taurman was told by Felton that once the Sunburst job was completed, there would be a job for him in Aberdeen, Washington. However, FCC had decided to go non-union and the job in Aberdeen was for nonunion personnel. Union members would be fined $5,000 by their union for working a non-union project. After considering the choices overnight, Taurman tpld Felton he would not be quitting the union. Taurman’s employment with FCC terminated a week or two later.

Paige was presented with the same decision. He, too, decided to remain union and lost his job with FCC.

Subsequent to Taurman’s and Paige’s terminations, a meeting of FIG was held and its members voted to expel Taurman from the group. Following his expulsion, Taurman was offered a check by FIG in an amount equal to his contribution plus interest, $21,448.98. Taurman refused to endorse and cash the check.

FIG filed a complaint December 2,1981, requesting that Taurman, Paige, and a third individual, Thomas Wackier, be ordered to accept the sums previously offered in satisfaction of their entire claims in the partnership. Also on December 2,1981, Taurman and Paige filed a complaint against FIG seeking the judicial dissolution of FIG; a formal accounting of FIG; and an order that the assets of FIG be sold, applied in full to partnership liabilities and the remainder divided between the partners. Following a bench trial, judgment was entered for Taurman and Paige, awarding them a pro rata share in the partnership’s assets.

FIG appeals, raising the following issues:

1. Did the District Court err in adopting verbatim findings of fact and conclusions of law proposed by Taurman and Paige which were unsupported by the record, inconsistent with the evidence and contrary to stipulations of the parties?

2. Did the District Court err in basing its decision upon an alleged violation of the National Labor Relations Act by a non-party to the litigation the subject matter of which was beyond the jurisdiction of the court to pass upon and further was barred by the applicable federal statute of limitations?

3. Did the District Court err in holding that the provisions of the Uniform Partnership Act applicable to intra se relationships of partners in an ongoing partnership, Section 35-10-401, MCA, controlled a case which involved partnership dissolution and the rights of the partnership and the former partners upon such dissolution?

The District Court did not adopt Taurman’s and Paige’s findings of fact and conclusions of law completely verbatim. The judge’s editing of the findings and his selective use of the conclusions, as well as his reliance on his own conclusions, evidence “the thoughtful consideration of the judge deciding the case . . . “ In re Marriage of West (Mont. 1983), [203 Mont. 469,] 661 P.2d 1289, 1290, 40 St.Rep. 573, 575.

There are errors. Specifically, Paige was not employed at Sunburst, Montana, at the time he decided not to quit the union. However, neither this error nor other insignificant errors pinpointed by FIG affect the final result of the case. As a whole, the findings are supported by substantial credible evidence and will not be overturned by this Court. Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939, 945.

The trial judge did not refer to the stipulation entered into by the partners on December 3, 1984. That stipulation states that Paige was a member of FIG from 1970 through December 5, 1978. However, as Paige contends on appeal, the stipulation does not state that Paige was not a member of FIG between December 5, 1978, and July 31, 1980. Clearly, whether Paige remained a member during that time period is a factual dispute, resolution of which is integral to Paige’s case. It was properly left for resolution by the trial judge.

The only specific requirement for membership in FIG was employment with FCC. “Pre-Incorporation Minutes” of October 9, 1969. Paige remained employed by FCC until July, 1980. Therefore, we find no error in the trial judge’s determination that Paige remained a member of FIG until that time.

FIG also objects to the trial judge’s reliance on the National Labor Relations Act (Act) in deciding this case. The Act was referred to solely to help determine a primary issue of the case, whether Taurman and Paige were involuntarily terminated from FCC without allegations of misconduct. The Act provides that a wrongful discharge from employment occurs when one is discharged for supporting a union.

“It shall be an unfair labor practice for an employer — (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

29 U.S.C. Section 158(a)(3).

Such a discharge is wrongful regardless the employer or location of employment. FCC did not have to be a party for this determination to be made as no adjudication or enforcement of a claim against FCC pursuant to the Act occurred. Rule 19(a), M.R.Civ.P. The Act was relied on solely to answer a question of state law pertinent to the issue raised — whether Taurman and Paige were involuntarily terminated from FCC absent allegations of misconduct?

The trial judge answered this question in the affirmative. Again, we find no error as there is substantial credible evidence to support that determination. Both individuals worked for FCC for a substantial number of years. Numerous people associated with FCC testified that neither individual was a problem employee. Their employment, or lack thereof, hinged completely on their willingness to disassociate with their union.

Finally, we find no error in the trial court’s decision that pursuant to Section 35-10-401(1), MCA, Taurman and Paige must be repaid their contributions into the partnership and receive their pro rata share of the assets of the partnership. Section 35-10-401, MCA, states at the outset that “[t]he rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules.” The agreement between the partners covers the voluntary termination of a partner’s employment with FCC as well as his discharge for misconduct. It also covers involuntary termination caused by disability, death or retirement. However, there is nothing in the partnership agreement concerning the effect of a partner’s involuntary termination from FCC absent misconduct. Numerous members of FIG, including its controller, testified that this contingency was not covered in FIG’s partnership agreement. Since the rights of partners of FIG who were involuntarily terminated from FCC without cause were not expressed in the agreement, Section 35-10-401(1), MCA, controls.

“(1) Each partner shall be repaid his contributions whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied ...”

Taurman and Paige are entitled to receive their pro rata shares of the fair market value of the asset of FIG as of the date their employment with FCC terminated.

Affirmed.

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