author: JUSTICE SHEEHY

text:
    In the Matter of the ESTATE OF DORIS I. DeLONG, Deceased. PAT DRABANT, Smith Eugene Davies, Irene Morgigno, Barbara Elliott, LaVonne Davies, Petitioners and Appellees, v. HELEN E. DeLONG, Respondent and Appellant.
    No. 89-515.
    Submitted Dec. 14, 1989.
    Decided March 6, 1990.
    788 P.2d 889.

      Marshall M. Myers,. Eureka, for appellant.
    S. Charles Sprinkle, Libby, for appellees.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Decedent Doris I. DeLong provided in the second paragraph of her form will, “I give, devise and bequeath to James E. DeLong or Helen DeLong.” (Underlined words are handwritten.) Petitioners and appellees, Pat Drabant, Smith Eugene Davies, Irene Morgigno, Barbara Elliott, and Lavonne Davies petitioned the District Court to declare the will of the decedent Doris I. DeLong invalid or to determine that the estate passed by intestacy.

The District Court, Nineteenth Judicial District, Lincoln County, determined that the will of Doris DeLong of August 9, 1988, is a valid will and that Helen DeLong be appointed personal representative. Furthermore, the District Court denied Pat Drabant’s request to be appointed personal representative. The District Court also found that under the will no testamentary disposition was made of the property of the decedent, and ordered the decedent’s property to pass under the law of intestate succession. The District Court attached the following brief memorandum to explain its holding:

State of Montana v. Keller, 173 Mont. 523, 528, 568 P.2d 166 (1977) makes it clear that the Court cannot rewrite the will of the testatrix, and there is nothing by which to clearly determine the intent of the testatrix. The reference to ‘to all other relatives and friends I leave my love and my good will’ tells the Court nothing with respect to the intent of Doris I. DeLong. She had already planned to ‘give, devise and bequeath’ something to James E. DeLong or Helen E. DeLong. She originally wrote that it was to go to James E. DeLong and Helen E. DeLong, but she lined out the word “and” and inserted the word “or”, which now puts the will in the posture of not knowing what it is that is to be bequeathed or devised, but also does not tell us to whom. The parties may have agreed to the competency of Doris I. DeLong, but the foregoing is sufficient for me to determine that I do not know what the testatrix had in mind, and I may not rewrite the will.

“As such, the remainder of the will then is valid, thus revoking all other wills, and appointing Helen DeLong as the Personal Representative.”

The respondent and appellant, Helen E. DeLong, appeals the District Court order, asserting the decedent’s intent was to devise all of her property to Helen or James DeLong. We disagree with appellant, and affirm the District Court.

Essentially the appellant raises one single issue on appeal:

Whether the District Court erred in finding lack of testamentary intent.

Appellant argues that an examination of the entirety of Doris DeLong’s will shows that her intent was to devise her entire estate to Helen or James DeLong. In contrast, the appellees assert the will is valid, but the decedent’s intent is impossible to deduce by a reading of the four corners of the will. Therefore the estate should pass by intestacy.

It is well settled that the intention of a testatrix, as expressed in her will, controls the legal effect of her disposition. Section 72-2-501, MCA; In Re the Estate of Erdahl (Mont. 1981), [- Mont. -,] 630 P.2d 230, 231; State Fish & Game Comm’n. v. Keller, Etc. (1977), 173 Mont. 523, 526, 568 P.2d 166, 168. The intent of the testatrix must be found from all parts of the will which are to be construed in relation to each other so as, if possible, to form one consistent whole. In Re the Estate of Spriggs (1924), 70 Mont. 272, 225 P. 617. The intention of the testatrix is also to be ascertained from the words of a will which aré to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected and that other can be ascertained. Section 72-11-302, MCA; In Re the Estate of Humes (1954), 128 Mont. 223, 226, 272 P.2d 999, 1000.

In the present case, the decedent, on August 9, 1988, executed a valid will. The will contains the printed language: “Second — I give, devise and bequeath to” and then sets holographically the names “James E. DeLong or Helen DeLong. In case of Helen and James death, I leave to Tom DeLong.” Originally she wrote that it was to go to “James E. DeLong and Helen DeLong,” but she lined out the word “and” and inserted the word “or.” The will then sets forth in a second holographic paragraph: “To all other relatives and friends I leave my love and my good will.”

The appellant contends that by construing the two holographic sections in relation to each other, as required by Erdahl, the only possible interpretation of the testatrix’s intent is that she intended to convey her entire estate to Helen or James DeLong, or in the event of their death to Tom DeLong, and nothing to her remaining relatives and friends. We adopt the District Court’s reasoning that by lining out the word “and” and by inserting the word “or,” the will is left in a state of “not knowing what it is that is to be bequeathed or devised, but also does not tell us to whom.”

In this case, the will simply does not leave any property, real or personal, to anyone. As this Court stated in State Fish & Game Comm’n. v. Keller, Etc. (1977), 173 Mont. 523, 528, 568 P.2d 166, 169, we will not rewrite the will of testatrix by substituting what this Court thought the testatrix intended for the erroneous provision. Therefore, the residual portion of this will is invalid, and the estate must pass by intestacy. Section 72-2-201, MCA.

Despite the lack of testamentary intent, appellant argues the will can be cured by applying the legal definitions for the words “devise” and “bequeath.” Appellant, relying on Black’s Law Dictionary and some case law from other jurisdictions, proposes the following definitions:

1) Devise — A testamentary disposition of land or realty; a gift of real property by the last will and testament of the donor . . . when used as a verb, means to dispose of real or personal property.

2) Bequeath — To give personal property by will to another.

Next, the appellant by inserting the above definitions contends the will reads as follows:

Second — I give real property (devise) and personal property (bequeath) to James E. DeLong or Helen DeLong.

We cannot adopt appellant’s argument. Appellant is asking the Court to conjure up the intent of the decedent, a task this Court is not capable of performing. This Court cannot determine what portion, if any, of her real and personal property the decedent intended to pass to James DeLong or Helen DeLong.

Furthermore, appellant contends the property should vest in Helen and James DeLong as owners in common pursuant to sec. 72-11-319, MCA. Section 72-11-319, MCA, provides that “A devise or legacy given to more than one person vest in them as owners in common.” This argument fails for two reasons. First, the decedent’s use of the word “or” does not connote a devise to “James and Helen DeLong” as owners in common, but rather a devise to either “James DeLong” or “Helen Delong.” Second, if we would consider the DeLongs owners in common, the will still fails because it is impossible from reading the will to determine what the testatrix intended to devise to the DeLongs.

Finally, appellant claims the will is in the posture of having one beneficiary of the testatrix’s real and personal property, that person being James DeLong. Appellant arrives at this conclusion from the fact that on September 24, 1989, Helen DeLong relinquished any interest she may have possessed under the will. The filing of her relinquishment post-dated the District Court hearing on this matter. The issue was not properly presented to the District Court, and this Court will not review an issue raised for the first time on appeal. Weinberg v. Farmers State Bank of Worden (1988), 231 Mont. 10, 19, 752 P.2d 719, 724; Rozzel Corp. v. Dept. of Public Service Regulation, et al. (1987), 226 Mont. 237, 243, 735 P.2d 282, 286; Akhtar v. Van De Wetering (1982), 197 Mont. 205, 209, 642 P.2d 149, 152; Peters v. Newkirk (Mont. 1981), [- Mont. -,] 633 P.2d 1210, 1212. Furthermore, regardless of whether one or another of the DeLongs have relinquished an interest, the question still arises, “What interest did they relinquish?” We cannot answer this question because we cannot divine the intent of the testatrix.

While the residual portion of the will is invalid, the remainder of the will is valid. As we stated In Re Bernheim’s Estate (1928), 82 Mont. 198, 213, 266 P. 378, 384:

“Where a will contains different provisions, some of which are valid by law and others invalid, those which are valid will be upheld, if they can be separated from those which are invalid without violating the testator’s general intention, and as to the parts which are invalid the testator may be held to have died intestate . . . .”

In this present case, the residual portion of the will is invalid due to the lack of testamentary intent, but the rest of the will, revoking all other wills and appointing Helen DeLong as the personal representative, is valid. Accordingly, because the real and personal property of the decedent Doris I. DeLong is not effectively disposed of by her will, that property passes under the laws of intestate succession. Section 72-2-201, MCA; Dahood v. Frankovich (1987), 229 Mont. 287, 289, 746 P.2d 115, 116.

The problems encountered with the will in this case illustrate how treacherous it is to rely on preprinted form wills. At the time the decedent executed the will she may have saved herself the expense of a lawyer, but in the end her presumed devisees lost it all to intestacy.

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


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    JOHN M. McCRACKEN and James Waggoner, Plaintiffs, Appellants and Cross-Appellants, v. CITY OF CHINOOK, Montana, Defendant, Respondent and Appellant.
    Nos. 89-160 and 89-385.
    Submitted on Briefs Dec. 21, 1989.
    Decided March 8, 1990.
    As Amended March 13, 1990.
    Rehearing Denied April 17, 1990.
    788 P.2d 892.

      Patrick F. Flaherty, Flaherty & Winner, Robert Emmons, Great Falls, for plaintiffs, appellants and cross-appellants.
    Darcy Crum, James Gray & McCafferty, Great Falls, for defendant, respondent and appellant.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

John McCracken and James Waggoner appeal from an order of the Seventeenth Judicial. District, Blaine County, granting summary judgment to-respondent, the City of Chinook, and assessing sanctions against the appellants. The lower court found that the appellants voluntarily terminated their employment, and therefore dismissed their cause of action alleging wrongful discharge. We affirm.

The issues in this case are:

1. Whether the District Court erred in concluding that no genuine issue of material fact existed that appellants were not terminated by the City but instead quit.

2. Whether the District Court erred by assessing Rule 11 sanctions against the appellants.

Because this is an appeal from an order granting summary judgment, we review the facts in a light most favorable to the appellants.

John McCracken and James Waggoner were both police officers in Chinook, Montana. McCracken was hired on October 14, 1983 and Waggoner was hired on January 1, 1982. Both left the police department shortly past midnight on July 31, 1984.

During their careers, McCracken and Waggoner were the subject of much controversy concerning their performance while on duty. Mc-Cracken, for his part, was involved in an arrest of Pete Doney on December 5, 1983. Following this arrest, Doney alleged that he had been assaulted by McCracken and another police officer, Jerry Liese. An investigation of the incident ensued and charges were brought against McCracken • before the Police Commission. Felony charges were also filed in state district court relative to this incident. The judge found probable cause to exist and allowed an information to be filed. As a result of these charges, McCracken was suspended by the Mayor of Chinook pending a full investigation by the Police Commission. ■

The Police Commission hearing was held on March 7, 1984. This hearing resulted in all charges against McCracken being dismissed. Eventually, the felony charges pending in district court were also dismissed. McCracken was reinstated as a police officer and awarded back pay,

Waggoner was also subject to allegations of misconduct. In May of 1984, he was a participant in a fight with Ray Nez Perce at the Elk’s Bar in Chinook. As a result of this incident, he was charged and eventually convicted of disorderly conduct.

McCracken and Waggoner were also accused of an incident involving joint misconduct. There are completely different accounts of this event, however both admit that the incident was part of the reason they are no longer members of the police force.

According to the appellants’ brief, McCracken and Waggoner were caught swimming in an irrigation ditch with a young woman. Their story is unclear, however it appears as though the participants were in various stages of undress while they were swimming. It is conceded that this incident was a result of poor judgment by the police officers.

The City presents a totally different version of the event. According to their brief, McCracken and Waggoner went to a house occupied by Pete Doney, Ray and Frank Nez Perce and the woman. When they arrived at the house, McCracken pushed open the door, and entered and invited the woman to go skinny dipping. The woman refused this request and the following day charges were filed against McCracken for trespass. Eventually these charges were dropped.

As a result of these events, the police officers’ relationship with their employer, the City of Chinook, became very strained. According to McCracken and Waggoner, the Mayor began earnestly seeking their resignation. He also threatened to fire them on occasion. Finally, at midnight on July 31, 1984, at 12:43 a.m., the police officers called into the dispatcher and checked out “permanently 10-10, 10-42.” In police terminology, 10-10 is the code for off-shift and 10-42 is the code for notifying the dispatcher that the officer is now home. According to the dispatcher’s testimony, Waggoner’s statement meant to her, that he was quitting. The appellants never returned to work.

According to the City, the police officers’ actions were a voluntary termination of employment. Waggoner’s and McCracken’s resignations took them by complete surprise and as a result, the City was left without police protection during the early morning hours of July 31.

The police officers, however, steadfastly maintain that they were either forced to resign or were fired and that the City knew they would be permanently off shift as of 12:00 a.m. According to Mc-Cracken’s summary of the events, he and Waggoner were summoned to the Mayor’s office in the afternoon of July 30. The Mayor then informed McCracken that due to a reorganization of the police force, he would be laid off. Apparently the police chief was stepping down to patrolman and a new chief was going to be hired. Since McCracken had the least amount of seniority, he would be the one to be discharged.

Waggoner on the other hand maintains that he had been subject to repeated demands to resign. Finally the Mayor told him that if he did not quit he would be fired. However, if he quietly resigned the City would give him a good recommendation which could be used to get a job elsewhere. According to Waggoner he complied with the Mayor’s request and tendered a “forced” resignation. He maintains that the Mayor accepted the resignation and that he was under the impression that he too, would be relieved of all duties as of 12:00 a.m., July 31.

Apparently Waggoner’s written resignation was never accepted by the City. He states that the Mayor told him he would sign the acceptance of the resignation the following day. The resignation was never signed by the Mayor, however, and the City maintains it was never accepted due to conditions contained therein.

On February 19, 1986, Waggoner and McCracken filed a complaint alleging wrongful discharge, constructive discharge, breach of contract and breach of the covenant of good faith and fair dealing. Following four amended complaints, the District Court granted summary judgment in favor of the defendants. The court also assessed Rule 11 sanctions in the amount of $1200.00 against the plaintiffs for what was termed “lousy pleading.” This appeal followed.

I

The standard that an appellate court applies in reviewing a grant of summary judgment is the same as that initially utilized by the trial court under Rule 56, M.R.Civ.P. Summary judgment is proper when it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kelly v. Widner (1989), [236 Mont. 523,] 46 St.Rep. 591, 771 P.2d 142. We must review the evidence submitted by the appellants, in this light, in order to determine whether the lower court properly granted summary judgment. ~

The trial court ruled that in order to have a cause of action for wrongful discharge, a plaintiff must first establish that he was legally discharged. In order for a police officer to be legally discharged, he must first be given a hearing before the police commission. Section 7-32-4162, MCA. Neither McCracken nor Waggoner were taken before the police commission. Therefore, they were not legally discharged and accordingly they cannot now bring a cause of action alleging wrongful discharge.

The trial court also found that both officers were concerned over the probable filing of charges against them. It was this concern which led Waggoner to call in and tell the dispatcher that he was permanently 10-10, 10-42, which in police terminology means he is quitting. Montana has not yet recognized that an action for wrongful discharge can be successfully asserted when an employee voluntarily terminates the employment relationship. Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 638 P.2d 1063; Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213; Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487. Under this set of facts, we decline to expand the cause of action to include such circumstances. Therefore, because the record indicates the appellants voluntarily quit the police force, their cause of action is barred.

McCracken and Waggoner submitted several affidavits and articles from the local newspaper which tend to support their contentions that they were forced to resign. However, even assuming that this evidence is admissible it does not overcome the facts that these police officers were never lawfully or unlawfully discharged and that they themselves called into the dispatcher and told her that they were permanently off duty. Regardless of any actions taken by the Mayor prior to this act, it is clear that as a matter of law they were not discharged and that they voluntarily terminated their employment. We agree with the District Court that under the facts here, neither McCracken nor Waggoner were wrongfully discharged, nor did the City commit breach of contract or breach of the covenant of good faith and fair dealing. The judgment of the District Court granting summary judgment to the defendants is affirmed.

II

The District Court imposed a $1200.00 sanction upon the appellants and their attorney, Patrick F. Flaherty, as a punishment for their incomprehensible pleadings. Apparently the original complaint was in such a state of disarray that the plaintiffs were forced to file four amended complaints and a More Definite Statement before the allegations became comprehensible. As a result of the confused nature of these pleadings, the City was forced to file at least three separate Motions to Dismiss and a Motion for Summary Judgment. The District Court found that this inept legal work cost the City of Chinook thousands of dollars in unnecessary legal costs. It decided, however, to make only a small assessment in order to impress upon the appellants their duty to present professional work to the courts.

The amount of a sanctions award is discretionary with the district court. Such a ruling will not be disturbed unless the court acted arbitrarily or committed a clear abuse of discretion. Smith v. Colonial Terrace Associates (1986), 223 Mont. 8, 723 P.2d 954. The lower court’s determination in this matter was not an abuse of discretion and accordingly we uphold the $1200.00 sanction award. Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and SHEEHY concur.


author: JUSTICE HUNT

text:
    MARK N. SMITH, Plaintiff and Appellant, v. ROOSEVELT COUNTY, Montana, and Sheriff John Q. Grainger, Defendants and Respondents.
    No. 89-258.
    Submitted on Briefs Oct. 13, 1989.
    Decided March 8, 1990.
    Rehearing Denied April 17, 1990.
    788 P.2d 895.

      Arnie A. Hove, Circle, for plaintiff and appellant.
    Ralph J. Patch, Roosevelt County Atty., Wolf Point, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Mark N. Smith, plaintiff and appellant, brought this action against Roosevelt County and Sheriff John Q. Grainger, defendants and respondents, alleging that he was unjustifiably terminated from his position as deputy sheriff with the Roosevelt County Sheriff’s Department. Following a trial held in the Fifteenth Judicial District Court, Roosevelt County, a jury returned a verdict in favor of defendants. Smith appeals. We affirm.

The following issues are raised on appeal:

1. Whether the District Court erred in denying Smith’s motion for summary judgment.

■2. Whether Smith was denied a fair trial when the District Court denied his motion in limine and permitted testimony of other wrongdoings that were not the specific reason for his termination.

3. Whether substantial credible evidence supported the jury’s finding that Sheriff Grainger justifiably terminated Smith.

4. Whether the District Court erred in refusing to allow opinion testimony on the legal definition of gross inefficiency.

5. Whether the District Court erred in allowing an investigative report to be submitted to the jury.

6. Whether the District Court erred in instructing the jury on the definitions of assault, battery and mistreatment of prisoners.

7. Whether the District Court erred in instructing the jury in accordance with Rule 404(b), M.R.Evid.

Roosevelt County Sheriff Dean Mahlum hired Mark N. Smith as a deputy sheriff on October 1, 1985. In November, 1986, John Q. Grainger was elected to replace Mahlum and assumed his duties as the new sheriff in January, 1987.

On July 6, 1988, a Roosevelt County dispatcher and a detention officer observed Smith throw a young, intoxicated prisoner onto the floor of the booking room of the county jail and proceed to beat the prisoner’s head into the floor. Both the dispatcher and the jailer charged that Smith’s actions constituted an excessive use of force. Smith contended that the actions were needed to physically restrain the prisoner.

Following an investigation, Sheriff Grainger discharged Smith from his employment with the department. The termination letter, dated July 19, 1988, read in its entirety as follows:

“This letter is to inform you that the review of the charges in the complaint of (Deputy Mark Smith assaulting prisoner Julian Deserly) has been completed and the disposition finding is classified as ‘Sustained — The allegation was supported by the proper and sufficient evidence.’

“The following is to inform you that your employment as a Deputy Sheriff is terminated effective on the above date. The cause for termination is as follows: On the evening of July 6, 1988, at approximately 5:50 p.m., you did assault a prisoner in your care and custody, namely, Julian Deserly, at the Roosevelt County Jail. This assault occurred without provocation of any kind on the part of the prisoner. Statements made by you to Sgt. Brockmeyer were decisive in indicating that you had no control over yourself at the time the assault occurred and that you, for some reason, wanted to hurt the prisoner.

“On separate occasions in 1986 there were investigations into the use of excessive force. Both are documented in your personnel file and on one incident it is documented that you were suspended without pay for a. period of ten (10) days. On your transfer to the Wolf Point area statements were made by you, something to the effect of, ‘when I come into a new place I like to create as much hate and discontent as I can.’ This type of attitude and a pattern of using excessive force cannot be tolerated.

“Other problems such as failing to complete reports properly or even at all and the fact that you were sleeping on duty while assigned to guard the Agribition have not even been formally addressed yet, but I believe the matter at hand is the major concern of this Department ■ and the disciplinary action taken makes these other violations a moot issue at this time.

“The incident with prisoner Julian Deserly is in violation of the Roosevelt County Sheriff’s Department’s Policies and Procedures, Chapter 7, Section 7, Subsection 8, Criminal Conduct which reads as follows:

“ ‘Deputies will obey all laws of the United States, Montana State, and local jurisdictions. Violation of any law, an indictment or information filed against a deputy or a conviction will be cause for disciplinary action up to and including termination of employment. Internal discipline will not be dependent on the outcome of prosecution.’

“And the specific law that you violated is 45-5-204 Montana Codes Annotated, Mistreating Prisoners which reads as follows:

“ ‘45-5-204. Mistreating Prisoners. (1) A person commits the offense of mistreating prisoners if, being responsible for the care or custody of a prisoner, he purposely or knowingly: (a) assaults or otherwise injures a prisoner, (b) intimidates, threatens, endangers, or withholds reasonable necessities from the prisoner with the purpose to obtain a confession from him or for any other purpose; or (c) violates any civil right of a prisoner. (2) A person convicted of the offense of mistreating prisoners shall be removed from office or employment and shall be imprisoned in the state prison for a term not to exceed 10 years or be fined an amount not to exceed $50,000.00 or both.”

Because Julian Deserly, the prisoner allegedly assaulted by Smith, was a Native American, the incident was referred to the Federal Bureau of Investigation. In the fall of 1988, an indictment was filed against Smith in Federal District Court, charging him with mistreatment of a prisoner. In January, 1989, a jury found Smith not guilty of the charges.

Prior to the federal indictment, Smith timely filed a petition and demand for jury trial with the Fifteenth Judicial District Court, Roosevelt County, pursuant to sec. 7-32-2109, MCA, which provides:

“Any deputy sheriff whose employment is terminated may, within 30 days from the date of the termination of his employment, make application to the district court of the county wherein the deputy was employed for a hearing before the court, with or without jury, on the charges resulting in the deputy’s termination of employment or discharge.”

Smith sought reinstatement of his employment with the sheriff’s department pursuant to sec. 7-32-2110, MCA, which provides:

“In the event that a deputy prevails at the hearing provided for in 7-32-2109, he shall be entitled to be reinstated as a deputy sheriff at the same salary he received prior to his discharge or termination of employment and he shall also be entitled to any rights that might have accrued to his benefit prior to his discharge or termination of employment, including that salary which he would have received but for the termination.”

Following his acquittal on the criminal charges in federal court, Smith filed a motion for summary judgment in the Roosevelt County District Court. At a hearing held February 21,1989, the District Court denied Smith’s motion for summary judgment and set trial for March 28, 1989. Following a three-day trial, the jury returned a verdict in favor of defendants, finding that Sheriff Grainger justifiably terminated Smith under sec. 7-32-2107, MCA.

I.

Whether the District Court erred in denying Smith’s motion for summary judgment?

Summary judgment is proper only if the moving party demonstrates the complete absence of material questions of fact and that he is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In the present case, Smith, as the moving party, failed to shoulder his burden of proof.

A tenured deputy sheriff may be relieved of his employment only for one or more statutorily enumerated causes. These causes are delineated in pertinent part in sec. 7-32-2107, MCA, as follows:

“(1) conviction of a felony subsequent to the commencement of such employment;

“(4) sleeping while on duty;

“(6) gross inefficiency in the performance of official duties.”

Smith maintains that the sole cause of his termination was conviction of a felony offense. Therefore, he argues, when he was acquitted by a jury on the criminal charges of mistreatment, the reason for his termination was no longer valid. Consequently, he was entitled .to summary judgment.

At the root of Smith’s argument is a basic misunderstanding of the termination statute. Smith contends that a deputy sheriff may not be terminated for mistreating a prisoner unless he is convicted of a felony. This simply is not true. A deputy may also be terminated for gross inefficiency in the performance of official duties. A violation of official department policy may constitute gross inefficiency within the meaning of sec. 7-32-2107, MCA.

As pointed out in Smith’s termination letter, the official policy of the Roosevelt County Sheriff’s Department required deputies to obey all laws. A mere violation of the law constituted a violation of department policy, even if the violation did not result in a felony conviction. Therefore, Sheriff Grainger may have justifiably terminated Smith for gross inefficiency for mistreating a prisoner in his custody, a violation of both state law and department policy.

Numerous questions of fact remained to be resolved by the jury. The jury needed to determine whether a preponderance of the evidence showed that Smith assaulted a prisoner in his care in violation of sec. 45-5-204, MCA, mistreatment of prisoners, and whether such a violation of law constituted gross inefficiency. The District Court did not err in leaving these factual determinations to the jury.

II.

Whether Smith was denied a fair trial when the District Court denied his motion in limine and permitted testimony of other wrongdoings that were not the specific cause of his termination.

Prior to trial, Smith made a motion in limine to excise paragraphs in the termination letter that referred to other alleged instances of misconduct, e.g., previous mistreatment of prisoners, failure to complete reports and sleeping while on duty. The District Court denied his motion.

Smith contends that the court’s denial of his motion was in error because these alleged wrongdoings were irrelevant and highly prejudicial and should therefore have been kept from the jury. Whether this is so we need not discuss as we note that it was Smith who introduced the letter in its entirety to the jury. Thus, any prejudice that may have been caused by the letter’s introduction must be laid at the feet of Smith himself. He cannot now claim that he was denied a fair trial by the admission of evidence that he himself introduced.

Smith also claims that he was denied a fair trial because the trial court permitted the jury to hear testimony concerning these other instances of misconduct. Once again, we note that this so-called highly prejudicial evidence was introduced by Smith in his case in chief. The transcripts demonstrate that Smith repeatedly solicited testimony from witnesses regarding those issues he now claims to be so prejudicial. We will not be misled by Smith’s attempt to characterize his unsuccessful trial tactics as errors of the District Court.

III.

Whether substantial credible evidence supported the jury’s finding that Sheriff Grainger justifiably terminated Smith.

In the present case, two eye witnesses testified that, without apparent provocation, Smith grabbed the prisoner, Julian Deserly, by the hair, threw him down and slammed his face into the floor. Smith refuted this testimony, claiming that he was merely following standard procedure for restraining a resisting prisoner.

Even if the proof presented at trial conflicts, as it does in this case, this Court will not reweigh the evidence on appeal. It is uniquely within the province of the jury to determine the weight and credibility to be given each piece of proof. Weinberg v. Farmers State Bank of Worden (1988), 752 P.2d 719, 730, 45 St.Rep. 391, 405.

Viewed in the light most favorable to defendants, the evidence indicated that Smith mistreated Deserly. Therefore, we hold that substantial credible evidence supported the jury’s finding that Smith was justifiably terminated from his position.

IV.

Whether the District Court erred in refusing to allow opinion testimony on the legal definition of gross inefficiency.

At trial, Smith attempted to introduce the opinion testimony of former Roosevelt County Sheriff Dean Mahlum and former Undersheriff Robert J. Damm regarding the legal definition of gross inefficiency. The court sustained defendants’ objection to this testimony. Smith argues that this was error.

The District Court has broad discretion in determining the admissibility of evidence. We will not overturn its decision to refuse expert testimony absent an abuse of discretion. Massman v. City of Helena (1989), [237 Mont. 234,] 773 P.2d 1206, 1210, 46 St.Rep. 764, 768.

Expert testimony in the form of an opinion may be allowed if the specialized knowledge of the expert will assist the trier of fact to understand the evidence or determine a fact in issue. Rule 702, M.R.Evid. Ordinarily, such testimony is allowed if the evidence or fact in issue is beyond the ken of the ordinary juror. Thus, we allow expert evidence regarding scientific or technical matters because such testimony is most generally needed to help jurors understand the evidence and determine the facts of the case.

In the present case, even if we assume that the former sheriff and undersheriff were qualified as experts to give an opinion as to a legal definition, there was no need to allow such expert testimony. At the close of the presentation of evidence, the jurors were instructed on the definition of gross inefficiency. That instruction was not so highly technical as to be beyond the comprehension of the ordinary juror. Because expert opinion testimony was not needed to help the jurors understand the meaning of gross inefficiency, the District Court did not err in refusing such testimony.

V.

Whether the District Court erred in allowing an investigative report to be submitted to the jury.

During his case in chief, Smith encouraged Dennis Brockmeyer, the detective who investigated the assault upon Julian Deserly, to read statements from his interview with Deserly. At that point, defendants asked that the report be marked and given to the jury. Thereupon, the report itself was entered into evidence. Smith objected to the exhibit on the grounds that it would be improper to submit the report to the jury.

As noted previously, the admissibility of evidence lies within the discretion of the trial court. Massman, 773 P.2d at 1210, 46 St.Rep. at 768. The District Court in the present case did not abuse its discretion in allowing the submission of the investigative report to the jury. Smith had already entered the information into the record when he asked Brockmeyer to read from the report. He can hardly complain that submitting the actual exhibit to the jury substantially prejudiced his position.

VI.

Whether the District Court erred in instructing the jury on the definition of assault, battery and mistreatment of prisoners.

At trial, the District Court instructed the jury as follows:

“Instruction No. 8: An assault is any intentional threat of harmful or offensive contact with another by force under circumstances which create a well-founded fear of such contact, coupled with the apparent present ability to carry out the threat. A battery is an intentional contact by one person with the person of another which is harmful or offensive.

“Instruction No. 9: An arresting officer may use such force as is reasonably necessary to effect a lawful arrest. However, a police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested as to such excessive force.

“Instruction No. 10: You are instructed that a person commits the offense of mistreating prisoners if, being responsible for the care or custody of a prisoner, he purposely or knowingly assaults or otherwise injures a prisoner.”

Smith acknowledges that these instructions are accurate statements of the law but he argues that théy should not have been given because they misled and confused the jury. We do not agree.

Smith was terminated for mistreating a prisoner when he allegedly assaulted Julian Deserly. Therefore, the jury had to determine whether a preponderance of the evidence proved that an assault actually occurred. Instruction No. 8 aided the jury in its deliberations by informing it of the definitions of assault and battery. Instruction No. 9 aided the jury by instructing it on the amount of force an officer may use in making an arrest without committing a battery. Instruction No. 10 aided the jury by defining mistreatment, precisely the reason for Smith’s termination.

These instructions were not misleading. On the contrary, they were needed to help the jury determine the ultimate fact in issue — whether Smith was justifiably fired for mistreating a prisoner in his custody.

VII.

Whether the District Court erred in instructing the jury in accordance with Rule 404(b), M.R.Evid.

During Smith’s case in chief as well as after the presentation of evidence, the District Court instructed the jury that evidence of Smith’s other wrongdoings was not admitted to prove Smith’s character but only to show guilty knowledge of the offense for which Smith was terminated, to show malice, to rebut any claim of accident or mistake, to show motive and to show plan and intent. This instruction was in accordance with Rule 404(b), M.R.Evid. Smith argues that the instruction was confusing and irrelevant and only admissible in criminal cases.

We need not discuss the merits, if any, of Smith’s argument because, in perusing the record, we find a complete absence of any objection to the instruction. By failing to object to the instruction at the District Court level, Smith failed to preserve the issue for appeal. This Court will not review an issue raised for the first time on appeal. Weinberg, 752 P.2d at 724, 45 St.Rep. at 396.

Affirmed.

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


text:
    JOY SMITH, Plaintiff and Appellant, v. IONA BARRETT, Kent Lembke, and Eugene Atherton, Defendants and Respondents.
    No. 89-404.
    Submitted on Briefs Jan. 25, 1990.
    Decided March 8, 1990.
    788 P.2d 324.

      Michael Donahoe, Helena, for plaintiff and appellant.
    E. Eugene Atherton, Kalispell, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Eleventh Judicial District, Flathead County, granting summary judgment in favor of the defendants/respondents in an action for declaratory judgment and tortious interference with a business relationship, and awarding sanctions against the appellant and her attorney. We affirm the order of summary judgment and reverse the award of sanctions.

The issues on appeal are:

1. Whether the District Court properly granted summary judgment.

2. Whether the imposition of sanctions by the District Court was proper.

In late 1987, the appellant, Joy Smith (Smith) contacted Kent Lembke (Lembke), a real estate agent, concerning her desire to purchase a local general store. In response to this request, Lembke showed her the Elmo Store, in Elmo, Montana. The store was listed at $145,000.00. This price included both the store and all of the inventory on hand at time of sale.

After some negotiations between Smith, Lembke and the owner Iona Barrett (Barrett), Smith offered to buy the Elmo Store and its inventory for $99,500.00. Barrett rejected this offer because the price was too low and the inventory was to be paid for separately. Smith then made a new written offer and offered to buy the store for $99,500.00 and to buy the store’s inventory for $2,500.00. Barrett accepted this offer, and Smith gave Lembke a down payment in the form of a personal check in the amount of $30,000. 00. Lembke as agent deposited the check in his trust account on December 11, 1987, the day after the sales contract was signed. His bank immediately forwarded it through banking channels for collection. Subsequently Smith’s bank in Oklahoma honored the check, debited her account and forwarded a standard bank cashier’s check to Lembke’s bank in Kalispell.

Later that day, Smith went to the Elmo store with the intention of doing an inventory of all of the store’s merchandise. A disagreement arose between Smith and Barrett concerning the contractual provisions surrounding the sale of the inventory. Apparently, Smith believed that she was entitled to the entire inventory. Barrett, on the other hand, believed that Smith was only entitled to $2,500.00 worth of inventory. As a result of this disagreement, Smith expressed her desire to repudiate the contract.

Lembke attempted to hold the agreement together. However, Smith adamantly expressed her desire to back out of the contract. She was also very concerned over the whereabouts of the $30,000.00 payment she had given Lembke. She therefore stopped payment on the check. Her bank then notified Lembke’s bank that it would not honor the cashier’s check and payment was stopped at the federal reserve level.

Lembke then conferred with Barrett and suggested she retain an attorney. As a result of this suggestion, Lembke contacted E. Eugene Atherton (Atherton), an attorney from Kalispell, Montana. After consultation with both Lembke and Barrett, Atherton authored three letters, one to Barrett, one to Smith and one to Smith’s bank in Oklahoma.

The letter to Barrett confirmed that Atherton was engaged to induce Smith to complete the contract or to forfeit the $30,000.00. The letter to Smith contained a demand that Smith either complete the contract or forfeit the $30,000.00. And the letter to the bank in Oklahoma demanded that the $30,000.00 check be honored. The letter also suggested that the bank was exposing itself to liability and that to be safe, the bank should at least hold the money itself until the dispute was settled.

On receiving her letter, Smith contacted Michael Donahoe, an attorney, (Donahoe) for advice. Donahoe wrote Atherton and expressed his belief that no contract was ever formed due to a lack of meeting of the minds on the inventory term. Furthermore, Donahoe argued that the contract, if any, was not enforceable under the Statute of Frauds. Donahoe demanded that the $30,000.00 be released.

Following this exchange of letters, Atherton further conferred with his client. Barrett informed him that although she felt she was entitied to some money, she did not desire to litigate. Atherton then began to attempt to reach a settlement of the controversy. Eventually, when it became apparent that no settlement would be forthcoming, the matter was dropped.

However, Smith was not satisfied by simply dropping the matter. She maintained that the actions of Atherton and Lembke deprived her of the use of her $30,000.00 for several months, and as a result she incurred severe financial hardship, which led to destruction of her credit rating and loss of her health insurance. As a result of these damages, she sued Atherton, Lembke and Barrett alleging that they tortiously interfered with Smith’s business relations by compelling the bank to hold the funds.

Barrett was dismissed from the action. The remaining defendants moved for summary judgment and also moved the court to assess sanctions. The lower court granted their motion for summary judgment and, in response to its opinion that plaintiff’s cause of action was frivolous, assessed sanctions in the amount of $2,568.10. This appeal followed.

I

Smith maintains that the lower court erred in granting summary judgment. We disagree.

Summary judgment is proper under Rule 56(c), M.R.Civ.P., when the movant shows there is no genuine issue as to any fact deemed material, in light of the substantive legal principals entitling the movant to judgment as a matter of law. All reasonable inferences must be drawn in favor of the party opposing the motion. Cerek v. Albertsons’ Inc. (1981), 195 Mont. 409, 637 P.2d 509. In making its determination on whether to grant a motion for summary judgment, the court must consider the entire record. Hager v. Tandy (1965), 146 Mont. 531, 410 P.2d 447. We must now apply these principles to the formal issues presented by this case.

In her amended complaint, Smith alleges in paragraph 7 that:

“Since filing this . . . action Plaintiff has become aware that defendant Iona Barrett never had any intention to engage in litigation against the Plaintiff concerning the purchase and sale agreement that was executed on December 10, 1987. Moreover Plaintiff has become aware that Mr. Lembke and Mr. Atherton brought significant pressure to bear upon Mrs. Barrett to engage in a controversy against the Plaintiff. Thus even though Mrs. Barrett had no desire to litigate Mr. Lembke and Mr. Atherton nonetheless made every effort to seize Plaintiff’s Thirty Thousand Dollars ($30,000.00) earnest money.”

Smith further alleges that as a result of these actions, her credit rating was ruined and she lost her health insurance. She therefore, prayed the court to award all damages found to be proximately caused by the defendant’s alleged wrongful acts.

In her briefs on appeal, Smith maintains that the above allegations make out a prima facie case for the torts of interference with business relations and malicious defense. The tort of malicious defense, which is an outgrowth of malicious prosecution, has never been recognized in Montana. Although the tort is largely unrecognized throughout most jurisdictions, it has been the subject of in depth, scholarly discussion. See Comment, 47 Mont.L.Rev.101 (1986), Van Patten and Willard, 35 Hastings L.J. 891 (1984). The proponents of its recognition maintain that it is needed to counteract unfounded and malicious defense tactics.

In the case now before us, we do not decide whether this new tort should be recognized in Montana. However, for the sake of argument we will take note of its elements and apply them to Smith’s case-in-chief.

The elements of malicious defense are:

1. The initiation, continuation or procurement of proceedings;

2. By or at the insistence of the Defendant;

3. Favorable termination of the underlying proceeding in which the frivolous or malicious defense was asserted

4. Lack of probable cause;

5. Malice; and

6. Injury or damages sustained as a result of the previous proceeding.

The evidence, viewed in a light most favorable to Smith, fails to satisfy these elements. In particular, we note that there is no evidence that either Atherton or Lembke acted with malice toward Smith. Barrett testified that although she did not desire to engage in litigation with Smith, she did feel she had entered into a valid contract for the sale of her store and that Smith breached that contract. As a result of that breach, Barrett felt she was entitled to retain the earnest money as liquidated damages.

Lembke and Atherton, working on her behalf, attempted to obtain this money, which they felt she had a legal right to retain. In their endeavor to complete this task, Atherton wrote Smith’s bank and informed it of his belief, that under the law of commercial paper it had no right to stop payment on the $30,000,00 check, once the check had been delivered. He further stated his belief that by issuing the cashier’s check, the bank accepted Smith’s promise to pay the $30,000.00 and converted that promise to its own obligation. If it stopped payment on the check, this obligation would be breached and the bank would consequently expose itself to liability.

Atherton then engaged in negotiations with Smith and her attorney to work out some settlement in regard to the dispute over the earnest money. Admittedly, these negotiations included a series of statements and threats of litigation promulgated by Atherton. However, such comments usually do not rise to the level of malice required, before one can successfully assert a cause of action against an opposing attorney.

We also note that Smith’s allegation, that Lembke and Atherton “brought significant pressure to bear upon Mrs. Barrett to engage in a controversy against the Plaintiff,” was denied by Barrett. Her deposition contains the following exchange with Mr. Atherton:

Q: . . . Mrs. Barrett, at any time did I ever, ever bring any pressure at all against you to litigate or to engage in some sort of controversy against the plaintiff?

“A: No, you never did.”

This exchange further supports our conclusion that neither Atherton nor Lembke acted with any malice or improper purpose towards Mrs. Smith. There is no other evidence except allegations and therefore Mrs. Smith has failed to come forward with facts to meet her burden of proof and we hold that summary judgment was proper on the issue of whether the defendants committed the tort of malicious defense.

Smith’s second theory of recovery, alleging that Lembke and Atherton wrongfully and intentionally interfered with her business relations fails for the same reasons. In order to establish a prima facie case of such interference, one must show that the acts were:

(1) intentional and willful

(2) calculated to cause damage to the Plaintiff in her business

(3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor, and

(4) that actual damages and loss resulted.

Peterson v. J.R. Simplot Co. (Mont. 1989), [239 Mont. 1,] 46 St.Rep. 1463, 1469, 778 P.2d 879, 884.

As we stated above, the evidence, taken as a whole, indicates that Atherton and Lembke were merely attempting to obtain the earnest money as liquidated damages on behalf of their client. These damages were provided for under the contract and therefore, their belief in their client’s entitlement to the funds had a legal basis. There is no evidence that their actions were done with an “unlawful purpose” or were “calculated to cause damage” to Smith. Accordingly, this allegation also fails and we hold that summary judgment on this issue was proper.

II

The lower court found that the claims asserted by Mrs. Smith and her attorney, Mr. Donahoe, were frivolous. Acting on this belief, the district judge assessed sanctions against them in the amount of $2,658.10. Smith and her attorney argue these sanctions were improperly imposed. We agree.

Sanctions are properly awarded if an attorney fails to abide by the mandate of Rule 11, M.R.Civ.P., which states in pertinent part:

“. . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading . . . that to the best of his knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading ... is signed in violation of this rule, thfe Court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or paper, including a reasonable attorney’s fee.”

The cause of action asserted in this case, although unsuccessful, was not totally frivolous, nor is there any evidence that it was interposed for any improper purpose. Mrs. Smith and Mr. Donahoe brought this case upon the belief that Mr. Atherton and Mr. Lembke improperly tied up Barrett’s $30,000.00 down payment. The complaint stated that this action resulted in severe financial hardship upon his client. Mr. Donahoe therefore felt that the cause of action was well grounded in fact and supported by the law or supported by a good faith argument in support of extending the law.

We have stated our disagreement with plaintiff’s and Donahoe’s position. However, we do find the actions undertaken by Atherton and Lembke had the effect of protraction. In light of these conclusions, we hold that the sanctions were improperly awarded and we reverse and vacate this portion of the judgment.

Affirmed in part and reversed in part.

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


text:
    RICHARD KALANICK, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, A Delaware corporation, Defendant and Appellant.
    No. 89-350.
    Submitted on Briefs Dec. 7, 1989.
    Decided March 9, 1990.
    Rehearing Denied March 29, 1990.
    788 P.2d 901.

      Curtis G. Thompson, Jardine Law Firm, Great Falls, for defendant and appellant.
    Erik B. Thueson, Thueson Law Firm, Helena, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Burlington Northern Railroad Co. appeals from a judgment entered in the District Court, Eighth Judicial District, Cascade County, awarding Richard Kalanick $431,450. We affirm the District Court.

The issues raised by Burlington Northern (B.N.) are:

1. Did the District Court err in striking the defense of contributory negligence and instructing the jury that Kalanick was not negligent as a matter of law?

2. Did the trial court err by allowing evidence of a similar injury to be admitted?

3. Did the trial court err by reading a portion of an instruction it had previously denied?

4. Did the trial court err by instructing the jury that the injury to Kalanick need not be the result of a single incident, but may arise gradually from the character of the work?

5. Were portions of Kalanick’s closing arguments improper, thereby prejudicing B.N.?

6. Did the trial court err in denying B.N.’s motion to alter or amend the judgment?

In April of 1986, B.N. employees on the hi-line route were informed that upper level management was soon to inspect the area. A concerted effort to clean up the right-of-way of debris became a priority job for hi-line employees. Roadmaster Ed Sherman was responsible for the area between Loma and Ethridge. Sherman put his section crews and inspection crews on clean-up detail, in addition to their regular work.

Richard Kalanick and his partner were a two-man inspection crew. They were told to pick up what debris they could manage during their inspection patrol.

Kalanick and his partner patrolled the track from a rail-mounted pickup truck known as a “high rail.” Section crews were given mechanical lifting equipment to accomplish the job of lifting heavy debris such as old ties, but Kalanick and partner did not have the benefit of such a device. Consequently, if they spotted jobs requiring long periods of heavy labor, they reported them to the roadmaster for section crew assignment.

Kalanick and his partner were assigned to a 46-mile rail stretch known as the Gildford section. This section was full of debris, including approximately 1,000 ties. Kalanick understood that he and his partner were to clean up any debris which they could manage. Kalanick and partner, due to the nature of the high-rail truck and the lack of lifting equipment, necessarily had to lift and carry the ties up and down the subgrades and load them on the truck. Once loaded, they would drive to an area designated for burning, and manually unload the ties. Kalanick estimated that he and his partner loaded and unloaded some 900 ties prior to his injury.

On April 23, 1986, after several hours of lifting ties, Kalanick’s back gave out.

Kalanick filed suit on August 28, 1987, alleging that B.N. negligently failed to provide him with a safe place to work, adequate instruction, reasonably safe equipment and adequate manpower to perform the job safely. B.N. filed its answer, denying the allegations and raising contributory negligence as a defense.

Jury trial commenced on December 12, 1989. At the close of evidence, the trial court struck the defense of contributory negligence, ruling it to actually be an assumption of risk defense, precluded under the Federal Employers Liability Act. The jury returned a verdict in favor of Kalanick in the amount of $431,450. This appeal resulted.

B.N. contends that the defense of contributory negligence was improperly stricken by the trial court. Kalanick maintained at trial that B.N. was actually attempting to assert the defense of assumption of risk, which is prohibited under the FELA. 45 U.S.C. § 54 states in part:

“In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to . . . any of its employees, such employees shall not be held to have assumed the risks of his employment in any case where such injury . . . resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . .”

While assumption of risk is prohibited, the defense of contributory negligence has not been abolished in FELA actions. McClain v. Charleston W.C. & Ry. Co. (1939), 191 S.C. 332, 4 S.E.2d 280. The question then becomes: what constitutes contributory negligence? This has been a common problem in FELA cases. Most courts have stated that assumed risk arises out of the employment contract, while contributory negligence arises out of conduct. In Taylor v. Burlington Northern R. Co. (9th Cir. 1986), 787 F.2d 1309, 1316, 1317, the court stated:

“Although there is some overlap between assumption of risk and contributory negligence, generally the two defenses are not interchangeable. (Cite omitted.) At common law an employee’s voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform' his duties constitutes an assumption of risk. (Cite omitted.) Contributory negligence, in contrast, is a careless act or omission on the plaintiff’s part tending to add new dangers to conditions that the employer negligently created or permitted to exist.

“The employee who enters the workplace for a routine assignment in compliance with the orders and directions of his employer or its supervising agents, who by such entry incurs risks not extraordinary in scope, is not contributorily negligent, but rather is engaging in an assumption of risk.

“Reporting to work or facing the risks inherent in one’s job is the essence of assumption of risk.”

Following that reasoning, Kalanick asserts that his decision to follow orders and load and unload ties rather than refuse to do the work constitutes assumption of risk. Testimony of the Roadmaster, Ed Sherman, Kalanick’s supervisor, reveals that Kalanick did the work expected of him, and as he was expected to do it. In addition, the testimony of three B.N. foremen was of the consensus that the assignment of heavy labor to two men with only a high-rail pickup was “unreasonable” and “unsafe” with the ultimate result that “somebody will wear out [and] get hurt.”

Testimony of the B.N. employees refutes B.N.’s contentions of an absence of negligence on its part. The FELA imposes a high standard of care upon the carrier. Kernan v. American Dredging Co. (1958), 355 U.S. 426, 439, 78 S.Ct. 394, 401, 2 L.Ed2d 382. There are duties imputed to the carrier under the Act, including: The duty to provide a safe workplace, Tiller v. Atlantic Coast R.R. (1943), 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; the duty to furnish employees with suitable equipment to enable the employee to perform work safely, St. Louis Southwestern Ry. Co. v. Greene (Tex. 1977), 552 S.W.2d 880, 884; the duty to provide sufficient manpower to complete work in a reasonably safe manner, Blair v. Baltimore & O.R. Co. (1945), 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; and the duty to assign workers to jobs for which they are qualified and to avoid placing them in jobs beyond their physical capabilities, Fletcher v. Union Pac. R.R. (8th Cir. 1980), 621 F.2d 902, 909, cert. denied 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839. See generally Ackley v. Chicago and North Western Transp. Co. (8th Cir. 1987), 820 F.2d 263.

The record is clear that B.N. did not assign to Kalanick any lifting devices. Kalanick and his partner were expected to do substantial lifting without mechanical aid. Roadmaster Sherman testified that it was his responsibility to make sure that there was sufficient manpower and equipment assigned so that men would not get injured. The case law under the FELA amplifies that point. Sherman knew he had a duty to protect his men. The District Court weighed that fact against assertions by B.N. that Kalanick should have availed himself of additional manpower or equipment, used “safer” lifting techniques or better discretion as to which items he lifted. B.N. contended that Kalanick, by his own failings, was contributorily negligent. The District Court, in light of 45 U.S.C. § 54 and the multitude of cases interpreting it, correctly dismissed B.N.’s contributory negligence defense. The court in its ruling stated:

“It seems to me that your factual arguments go to assumption of the risk .... There was testimony, very clear testimony from the representatives of Burlington Northern that as far as they were concerned, Mr. Kalanick didn’t stray from the ordinary course of his duties. That he was performing his duties in a reasonable manner.

“Specifically, the question [of whether Kalanick created any new dangers for himself] was asked and answered.

“Where is the evidence? I just don’t see it. I was listening very carefully for that very evidence that would give you that defense [of contributing negligence], and I did not find it in this case.”

The District Court, having viewed all the evidence, determined that B.N. was attempting to interject assumption of risk, and therefor properly disallowed the defense. To impute negligence to Kalanick through instruction to the jury when no contributory negligence was shown would have been error. Because no contributory negligence was shown, the court correctly instructed the jury that Kalanick was not negligent “as a matter of law.” (Emphasis supplied.)

B.N. next contends that the trial court erred by allowing evidence of a similar injury to be admitted. B.N. Section Foreman Joe Stiffarm testified, and Roadmaster Ed Sherman verified, that another man previously under Sherman’s direction had injured his back by lifting ties and had sued, alleging insufficient manpower and inadequate lifting devices.

B.N. argues that the evidence was irrelevant due to failure to show the accident happened under similar circumstances.

This Court has stated that evidence of prior accidents is admissible for the purpose of showing the existence of danger or defect and notice thereof. Runkle v. Burlington Northern (1980), 188 Mont. 286, 613 P.2d 982. The accidents need not be identical to be admissible. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 713 P.2d 527. Kalanick maintains that B.N. had notice of the prior injuries and that Kalanick’s injury was foreseeable in light of the prior injuries. B.N. counters that the prior injury occurred six years before Kalanick’s injury, took place in the railroad yard on flat surface, and involved a larger tie.

Both accidents involved a laborer, working under the same foreman, lifting rail ties manually and thereby injuring his back. For the purpose of showing the railroad was or should have been on notice that workers may be injured and that such injuries are foreseeable, the District Court properly allowed evidence to be admitted to show the railroad’s failure in the duty, under FELA, to “promulgate and enforce safety rules.” Ybarra v. Burlington Northern (8th Cir. 1982), 689 F.2d 147. In Young v. Illinois Cent. Gulf R.R. Co. (5th Cir. 1980), 618 F.2d 332, 339, the court stated:

“Admission of evidence of two recent prior incidents for the sole purpose of showing that [the railroad] had notice . . . does not require a trial of the details and circumstances of those prior accidents. It should be considered by the jury for the purpose of determining whether a reasonably prudent railroad with notice of prior accidents . . . would have taken precautions against future accidents ...."

The District Court properly admitted evidence of the prior injury. B.N. did not object to Foreman Stiffarm’s testimony on the grounds of hearsay, hence the objection was not preserved on appeal. M.R.Evid. 103(a)(1).

B.N. next contends that the trial court erred in reading a portion of plaintiff’s offered instruction that had been denied earlier on the grounds of being argumentative.

Plaintiff’s proposed instruction read:

“The railroad has a continuing obligation to furnish adequate manpower and equipment to perform the work assignment in a reasonable and safe manner. Thus, the railroad cannot escape its legal obligation to furnish suitable equipment or adequate manpower by claiming that adequate manpower or proper equipment was not available.”

During the settlement of instructions, B.N. objected to the second sentence of the instruction as being argumentative. The trial court agreed and excised the second sentence, but later read the entire instruction to the jury. B.N. claims that the language of the second sentence imposed a bias upon the jury against B.N.’s position at trial that all manpower and equipment was mobilized during the cleanup campaign.

Under FELA, the railroad has a continuing obligation to provide adequate manpower and equipment. The court in Ragsdell v. Southern Pac. Transp. Co. (9th Cir.1982), 688 F.2d 1281, 1203, stated:

“The duty is a ‘continuing one’ and requires a jury to weigh a myriad of factors — including the nature of the task, its hazards and efforts — in determining whether an employer furnished an employee with a reasonably safe place to work .... This continuous duty to provide a safe place to work is broader than the general duty to use reasonable care. Other courts in FELA actions have held that failure to instruct a jury regarding an employer’s duty to provide a reasonably safe place to work is reversible error.”

Kalanick argues that the instruction is a correct statement of law, that B.N. cannot pick and choose which workers to afford adequate protection and at what time. If B.N. did not have the manpower or equipment, Kalanick argues, it should not have assigned him to the work. This Court has ruled in a FELA action, where the plaintiff has submitted to the jury evidence tending to prove an actionable violation of the Act, he is entitled to instruction adaptable to his case. McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 571 P.2d 784. Under McGee, the instruction was proper.

B.N.’s next contention of error is over the following instruction:

“It is not necessary that the injury result from a single incident. The term has been construed broadly to include damage or harm to the physical structure of the body which arises gradually from the character of the work.”

B.N. objects to this instruction on the ground that it “eliminates the element of negligence.” We do not agree. Under Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771 F.2d 1320, cert. granted 476 U.S. 1103, 106 S.Ct. 1946, 90 L.Ed.2d 356, affirmed in part, vacated in part, and remanded on other grounds 480 U,S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563, this is a proper statement of the law. Further, the necessity of negligence on the part of the carrier for the injury to be compensable was properly set forth in accompanying instructions. This instruction merely helped define the concept of injury. The District Court properly allowed the instruction. B.N. next contends that Kalanick’s closing argument was improper and prejudicial.

B.N. takes issue with Kalanick’s statement that B.N. had previously injured another worker in the same manner and “then it was business as usual and then Dick [Kalanick] loses his back. And if we don’t stop this, it’s going to be business as usual in the future . . . .” B.N. states that this argument is improper where punitive damages are not at issue.

However, it must be viewed in context. This statement was made in rebuttal, following the railroad’s argument that all equipment and manpower was properly utilized elsewhere, and that no negligence on the part of the railroad existed, Counsel for Kalanick disagreed, and pointed out the foreseeability of the accident due to the prior injury. Kalanick’s counsel’s next utterance is that: “The railroad has to know they have to follow the law. And if they don’t follow the law, they have to compensate the man fully for the injuries that he has. That’s the only way we can assure safety and compliance with the law.”

Improper argument requires a reversal of a verdict only when prejudice has resulted which prevents a fair trial. Nelson v. Hartman (1982), 199 Mont. 295, 648 P.2d 1176. There is no showing that the jury verdict was inflated in any way, suggesting part of the award was exemplary. Counsel for Kalanick merely asked for full compensation for his injuries. Where B.N. took the position that it had done no wrong under the law, and would continue those practices, Kalanick rightfully took issue with B.N.’s contentions.

B.N. also contends that Kalanick’s statements that an award of $200,000 would be against the law and violate the jurors’ oaths were improper. In closing, counsel for B. N. argued that Kalanick’s request for $345,000 for loss of future earnings was excessive, and offered $200,000 as a fair and equitable amount. On rebuttal, counsel for Kalanick argued:

“Let me go over what it would do if you awarded Dick Kalanick only $200,000. First of all, it would violate the law because the law says he’s entitled to compensation, fair compensation according to the evidence for every one of his losses.

“Secondly, it would violate the evidence, because the uncontradicted evidence ... is that Dick Kalanick at a very minimum suffered $408,000 in economic losses alone.

“Thirdly, it would violate your oath as jurors ... to award $200,000, because your oath is to follow the evidence and the law.”

As stated above, improper argument requires a reversal only when prejudice is the result, affecting a fair trial. Nelson, supra. Kalanick sought a minimum of $408,450 for loss of past and future earnings, the subject of the above-quoted argument. The jury, after hearing all arguments, awarded Kalanick $201,450 in lost earnings, less than the amounts of $63,450 in past earning loss plus $200,000 in future earning loss proposed by B.N. in closing argument. In light of these figures, B.N.’s contention that Kalanick’s argument resulted in prejudice has little merit.

B.N.’s final contention is that the trial court erred in denying its motion to alter or amend the judgment.

B.N. seeks three different reductions in the judgment.

First, B.N. seeks to reduce the $48,000 award for lost services, due to its “speculative” nature. However, there was testimony at trial, including that of B.N.’s own medical examiner, which stated that Kalanick would not be able to safely lift more than 20 pounds. Based on life expectancy, this award amounts to approximately $1,200 per year for his inability to perform menial physical tasks as would a healthy man. Ample evidence at trial existed to support the award.

Further, the amount to be awarded in damages is properly left to the jury, and this Court will not intervene where the award is neither so grossly out of proportion to the injury as to shock the conscience nor induce belief that it was the product of passion or prejudice. Salvail v. Great Northern Ry. (1970), 156 Mont. 12, 473 P.2d 549.

Secondly, B.N. seeks to reduce the jury award by $72,000, the amount awarded Kalanick for future medical care.

In the three years prior to trial, Kalanick amassed medical costs of $29,156. The medical opinion offered at trial was that Kalanick would continue to need medical care for his injury, but to a lesser degree. Using Kalanick’s predicted remaining lifetime of 39 years, the jury’s $72,000 award was reasonable. Where there is strong evidence of damages, a defendant should not escape liability because the amount of damages cannot be proved with precision. Johnson v. Murray (1982), 201 Mont. 495, 656 P.2d 170. This Court will not disturb a damage award, particularly in a FELA case, unless the award appears outrageously excessive. Grunenthal v. Long Island R. Co. (1968), 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309.

Finally, B.N. contends that the trial court erred by not crediting it with setoffs for wage advances and supplemental sickness benefits paid to Kalanick following his injury.

B.N. advanced $11,025 to Kalanick prior to trial, pursuant to agreement signed by Kalanick which provided:

“I understand and agree that this money advanced me will be deducted from any payment made by settlement or compromise or otherwise due to me on account of said injuries, no matter by whom payment is made.”

Kalanick admits B.N.’s entitlement to this setoff, and we therefore reduce the judgment by $11,025.

B.N. also contends such a setoff is proper with regards to supplemental sickness benefits of $7,693.27 paid to Kalanick.

These benefits were issued pursuant to the collective bargaining agreement adopted by Kalanick’s union. The agreement provides in part:

“. . . benefits paid under this Plan will be offset against any right of recovery for loss of wages the employee may have against the employing railroad . . . .”

There is conflicting case law in regards to this matter. In Anderson v. Burlington Northern (1985), 218 Mont. 456, 709 P.2d 641, this Court ruled on the same issue, containing the very same language in the agreement. We held that the decision was void under the FELA, 45 U.S.C. § 55, which states:

“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”

In Anderson, as here, the payments were made through the union health and welfare agreement and were thereby exempt from setoff because they were a collateral source.

While that would appear to be determinative of the issue, the Ninth Circuit decision in Folkestead v. Burlington Northern (9th Cir. 1987), 813 F.2d 1377, ruling on the same clause, came to the opposite conclusion.

This Court has stated that, while FELA actions may be filed in either state or federal courts, the rights and obligations of employees and employers as created by the Act are to be governed by the decisions of the federal courts. State ex rel. Burlington Northern v. District Court (1976), 169 Mont. 480, 548 P.2d 1390. Accordingly, we determine that Folkestead takes preference over Anderson, and B.N.’s claim for an offset for sickness payments made to Kalanick in the sum of $7,693.27 is hereby granted.

Conversely, Kalanick contends that this Court should grant an additur for the reasonable value of past medical costs, equaling $29,156.16. Kalanick maintains that these costs were not awarded due to error in the trial court’s instructions.

This Court held in Fillbach v. Inland Construction Corp. (1978), 178 Mont. 374, 584 P.2d 1274, that an appellee who did not contest the amount awarded to him by cross appeal or did not except to or move to amend findings of fact of the trial court could not properly raise such questions in regard to amount of award for the first time on appeal. Accordingly, Kalanick is barred from seeking past medical costs here.

JUSTICES HARRISON, HUNT, BARZ and McDONOUGH concur.


text:
    WESTSIDE NEIGHBORHOOD BETTERMENT COMMITTEE, Plaintiff and Appellant, v. CITY OF GREAT FALLS, and the Salvation Army, Defendants and Respondents.
    No. 89-421.
    Submitted on Briefs Dec. 21, 1989.
    Decided March 9, 1990.
    788 P.2d 335.

      Patrick F. Flaherty, Flaherty & Winner, Great Falls, for plaintiff and appellant.
    David V. Gliko, City Atty., Randall H. Gray, James, Gray & Mc-Cafferty, Great Falls, for defendants and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Westside Neighborhood Betterment Committee appeals from a judgment of the District Court, Eighth Judicial District, Cascade County, upholding the issuance of a building permit to the Salvation Army. We affirm the District Court.

The issues raised by appellant are:

1. Whether the building permit was issued in violation of municipal codes, and is therefore void.

2. Whether the proposed building is in violation of § 76-2-304, MCA.

On October 5, 1988, the Great Falls Salvation Army applied for and was issued a permit for the construction of a new warehouse. Area land owner Edward Judge formally protested the issuance of the permit and requested a review by the Great Falls Board of Adjustment. The Board reviewed the matter, and allowed the permit as issued.

The matter was then appealed to the Great Falls City Commission, which denied the permit on December 20,1988. Counsel for the Salvation Army subsequently informed the Commission that it had no legal basis to withdraw the permit, and asked for reconsideration of the matter. At the Commission’s next meeting on January 3, 1989, the decision was reversed and the permit issuance approved.

On January 31,1989, Westside Neighborhood Betterment Committee (Westside) filed a petition for a writ of certiorari, and a complaint seeking a declaratory judgment, injunction and abatement of nuisance.

Testimony at hearings on the matter established the premises were zoned “general commercial,” permitting the proposed use of a warehouse; that the storage of used clothing and other second-hand items was not a violation of city ordinance; that sufficient parking spaces existed to comply with city ordinances; and that the proposed building conformed to other buildings in the area with respect to aesthetic appearance, as well as conforming to all other pertinent ordinances. The District Court found no violations of state law or city ordinance by the City’s issuance of the building permit, and therefore denied plaintiff’s petition for writ of certiorari and petition for injunction and abatement of nuisance. This appeal resulted.

Westside contends that the building permit was issued in violation of Great Falls Municipal Code 17.81.010, which states that general commercial sites must have one off-street parking spot for each 200 square feet of gross floor space. All parties agreed that the Salvation Army project required 114 parking spaces.

Westside’s contention is based on the parking layout as of the date of application, which showed 72 off-street spaces. Because of this, Westside maintains that there was clearly an inadequate number of spaces, and the permit should not have been issued.

However, it was shown at the District Court hearing that the Salvation Army had adequate room, upon a reworking of the parking layout, for 118 spaces. Westside offered no credible evidence to refute the finding that the parking scheme was in compliance with the ordinance. The District Court correctly found no violation of Great Falls Municipal Code 17.81.010 to exist.

Westside further contends that the proposed use of the building to store “junk” violates Great Falls Municipal Ordinance 17.33.010.

Ordinance 17.33.010 details prohibited uses of buildings in general commercial districts. Subsection (4) proscribes the “[s]torage, baling, packing or treatment of scrap paper, iron, bottles, rags or junk.”

The District Court found that the intended use of the building included the storage of such second-hand items as clothing and athletic equipment, to be sold in their original state, presumably for their original purpose. The city ordinance does not define “junk.” Salvation Army cites several cases for the premise the second-hand articles may be distinguished from “junk” in that “second-hand articles, although used, still possess utility in their present state for the purpose for which they are originally intended while ‘junk’ possesses usefulness only through conversion or reduction into components.” State v. Cohn (Conn.1962), 188 A.2d 878, 882. Following that rationale, the District Court concluded that the Salvation Army proposed to deal in used goods, and not “junk” as Westside maintained. Again, the District Court found no violation of municipal code.

Finally, Westside maintains that the District Court erred by failing to find that the proposed building adversely impacts the character of the neighborhood in violation of § 76-2-304, MCA.

Section 76-2-304, MCA, speaks to the purposes of enacting municipal zoning. It states that zoning regulations shall be made with reasonable consideration to the character of a district, suitability for particular use and with a view to conserving the value of buildings and encouraging appropriate land use. This statute refers only to the considerations necessary when adopting a zoned district. It in no way limits or mandates what structures may be erected or refurbished in the district after the zone has been established.

The City Building Inspector found the project met all building code requirements. The Zoning Technician confirmed that all city ordinance requirements were met. Westside has failed to show any violations of state statute.

Section 303(a) of the Uniform Building Code provides:

“If the building official finds that the work described in an application for a permit and the plans, specifications and other data filed therewith conform to the requirements of this code and other pertinent laws and ordinances, and that the fees specified in Section 304 have been paid, he shall issue a permit therefor to the applicant.” (Emphasis added.)

In Bateson v. Geisse (9th Cir. 1988), 857 F.2d 1300, the Ninth Circuit Court of Appeals upheld judgment entered by Judge Battin against the City of Billings, where a proposed development which complied with all applicable zoning classifications was denied a building permit. The court noted that the action was arbitrary and unreasonable and violated the property owner’s substantive due process rights.

In Bateson, as here, all requirements were met. Once the City made that determination, it properly issued the permit.

We affirm the holding of the District Court.

JUSTICES HARRISON, BARZ, HUNT and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    MONTE DEAN LORENZ, Petitioner and Appellant, v. MELANIE JANE LORENZ, n/k/a Melanie Jane Wangerin, Respondent and Respondent.
    No. 89-443.
    Submitted on Briefs Jan. 25, 1990.
    Decided March 9, 1990.
    788 P.2d 328.

      Phillip N. Carter, Koch & Carter, Sidney, for petitioner and appellant.
    Peter O. Maltese, Sidney, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The parties’ marriage was dissolved in the District Court for the Seventh Judicial District, Richland County, in May 1988. The parties were granted joint custody of their two minor children. Monte Dean Lorenz now appeals the court’s June 1989 order that the children’s primary residence be with their mother, Melanie Jane Lorenz, who has moved to Canada. We affirm.

The issues are:

1. Are the District Court’s findings, conclusions, and order supported by the evidence?

2. Are the court’s findings, conclusions, and order sufficiently comprehensive and pertinent to the issues to provide a basis for the court’s decision?

3. Does the court’s adoption of the mother’s proposed findings, conclusions, and order constitute reversible error?

The marriage of Monte Dean Lorenz (father) and Melanie Jane Lorenz (mother) was dissolved in May 1988. They had two children, a girl and a boy, then ages eight and five. Pursuant to the parties’ custody, support, and property settlement agreement, which was merged in the decree of dissolution, the parties shared joint custody of their two children. The agreement provided that the children’s primary residence would be with the mother.

In July of 1988, the mother discovered she was pregnant. The father, Timothy Wangerin, was a seminary student who had served as a vicar at the parties’ church. In what she described as “great emotional turmoil,” the mother signed a stipulation that physical custody of the children would be given to the father. Two weeks later, the mother married the vicar and filed her rescission of the stipulation.

In August, the father filed a motion to modify the physical custody of the children so that he could keep them. The mother and her new husband were moving to Edmonton, Alberta, Canada, where he would continue his education. After a hearing lasting several days, the District Court granted temporary physical custody to the father for the 1988-1989 school year.

A hearing on a permanent residency arrangement for the children was held in June 1989. By this time, the mother, her new husband, and their baby were living in Medicine Hat, Alberta, Canada. The father still lived in the same house in Sidney, Montana. After the hearing, the court concluded that it would be in the children’s best interests if they resided with their mother during the school year and with their father during the summer. From that order the father appeals.

I

Are the court’s findings, conclusions, and order supported by the evidence?

The father challenges the following finding made by the District Court:

“IV.

“The parties executed an Agreement to Modify Custody, Support and Property Settlement Agreement and Decree of Dissolution of Marriage on July 12, 1988. Thereafter, the Respondent filed her Recission [sic] of Agreement to Modify Custody, Support and Property Settlement Agreement and Decree of Dissolution of Marriage on the basis that the Petitioner induced the Respondent to sign the Agreement with several promises, many of which were not kept; that prior to the time of signing the instrument, the Petitioner exerted great pressure on the Respondent to sign the Agreement, at a time when the Respondent was suffering great emotional turmoil.”

The father argues that the record does not support the reasons stated in Finding IV for the mother signing the stipulation. He also maintains that there was no evidence that he caused any emotional turmoil the mother may have been suffering at that time.

The mother testified that,

“There were promises made to me when I signed it. There were threats made to me when I signed it and other general statements.

“Q. You say that there were threats made to you.

“A. Yes.

“Q. And what were those threats?

“A. One of them was a big, ugly legal battle if I didn’t sign it, which has come true. He told me — Monte told me to tell Tim that if he came to town he would kill him. He told me that he would do everything in his power to prevent his children from living with me and Tim, that he would do whatever he had to to prevent that.” The above testimony supports Finding IV. We conclude that the finding was not error.

The father next challenges Finding VI, which stated that the mother had been the primary caretaker of the children. The mother testified that she worked as a beautician three to four days per week during the last two years of the marriage, but that prior to that time she had been at home. She testified that the first year she worked outside the home, she had a babysitter for the children. The second year, the father cared for the boy after he got out of kindergarten at 11:30 and until the mother was done working, according to her testimony. The mother testified that it was always her job to get the kids ready to go to school. She stated that the father did not have much to do with the children’s upbringing. We conclude that this was substantial evidence to support Finding VI.

Finding VII is the last one to which the father objects. It stated that each party acknowledged that the other is a fit and proper person to be a custodial parent. At the June 1989 hearing, the father described the mother as “a good mother.” He testified that he had never considered her an unfit mother and that she had a good relationship with the children. Moreover, he did not seek to terminate joint custody of the children. We conclude that substantial evidence supports Finding VII.

The father also lists nineteen findings (in his favor) which he submits that the court should have made but did not. These related to the children’s adjustment to their home, school, community, extended family, and church in Sidney, Montana. This Court has held that a district court “is not obligated to outline all of the testimony presented at trial in its findings of fact.” McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 83-84, 666 P.2d 742, 746. We will discuss, under Issue II, whether the District Court made sufficient findings to support its conclusions and decision.

II

Are the District Court’s findings, conclusions, and order sufficiently comprehensive and pertinent to the issues to provide a basis for the court’s decision?

Section 40-4-224(2), MCA, states that in joint custody, allotment of time for physical custody and residence of the children must be as equal as possible between the parents, but each case is to be determined according to its own practicalities, with the best interests of the child as the primary consideration. The father contends that the provisions of sec. 40-4-212, MCA, regarding the best interests of the child should all have been addressed in the findings in this case.

Section 40-4-212, MCA, lists the following as factors to be considered in determining the best interest of the child: 1) the wishes of the child’s parents as to the child’s custody; 2) the child’s wishes as to his custody; 3) the interaction of the child with his parents, siblings, and any other persons who may significantly affect the child’s best interest; 4) the child’s adjustment to his home, school, and community; 5) the mental and physical health of all individuals involved; 6) physical abuse, if it is present or threatened; 7) chemical dependency of either parent. This Court has further suggested three related criteria to be considered: the parents’ ability to cooperate in their parental roles; the child’s relationship with both parents; and the geographic proximity of the parents’ residences. In re Custody and Support of B.T.S. (1986), 219 Mont. 391, 395-96, 712 P.2d 1298, 1301.

We now discuss the findings in this case as they relate to the statutory best interest factors. By definition, in joint custody each parent is a fit custodian of the child. The nature of this proceeding makes it clear that both parents desire joint custody and that each wants to be the primary residential parent.

The court stated during the hearing that, in its opinion, the children were too young to express their wishes as to residence. It did not interview them as to their preferences. This Court has stated that the age of the child goes to the weight to be given the child’s wishes as to custody. In re Custody of C.C. (1985), 215 Mont. 72, 76-77, 695 P.2d 816, 819.

The court made findings on the interaction of the children with all of the persons they would live with in either household, including their half-sister and the mother’s new husband. It found that the mother’s new husband interacts well with the children and is interested in their welfare.

This Court has recognized that a custodial parent is presumptively entitled to change her own and the child’s residence. In re Marriage of Paradis (1984), 213 Mont. 177, 181, 689 P.2d 1263, 1265. In that context, the children’s adjustment to their home, school, and community must be weighed carefully. By definition, in joint custody the children will live in both parents’ households with time divided as equally as possible. The court made no findings on the issue of the children’s adjustment to their home, school, and community.

The only person on whom there was any adverse evidence as to physical or mental health was the mother’s new husband, Tim Wangerin. But the mother presented rebuttal evidence on that issue. The court made no finding.

There was no evidence of physical abuse or chemical dependency on the part of any of the parties, and there were no findings on these factors. Neither did the court make any findings on the parents’ ability to cooperate in their parental roles or on the children’s relationship with both parents. The geographic proximity of the parents’ residences was addressed in the nine month-three month plan of residential custody.

In this case, the District Court was faced with two suitable custodial parents who desire joint custody and who live at such a distance apart that one will necessarily see less than the other of their school-age children. Prior to the mother’s move out of town, the parties had agreed that she would provide the children’s primary residence. The court found that the mother does not intend to work outside the home, while the father is a farmer and has a part-time job as a salesman. This Court has stated that a district court need not make specific findings on each statutory factor in determining best interests of children under sec. 40-4-212, MCA, but need only express the “essential and determining” facts upon which it rests its conclusions. Cameron v. Cameron (1982), 197 Mont. 226, 230-31, 641 P.2d 1057, 1060. While the District Court’s findings are not a model of completeness, we hold that they are sufficient to provide a basis for the court’s decision.

Ill

Does the court’s adoption of the mother’s proposed findings, conclusions, and order constitute reversible error?

The father cites this Court’s opinion in Tomaskie v. Tomaskie (1981), 191 Mont. 508, 625 P.2d 536, in which the Court disapproved the practice of adopting proposed findings and conclusions submitted by a party. Since the Tomaskie opinion, this Court has restated its position on district courts’ use of proposed findings and conclusions:

“When the findings and conclusions are not clearly erroneous and are supported by the record the judge has not abused his discretion by ratifying the proposals of one party.”

R.L.S. v. Barkhoff (1983), 207 Mont. 199, 206, 674 P.2d 1082, 1086. We hold that the Barkhoff standard has been met.

Affirmed.

JUSTICES HARRISON, HUNT, WEBER and McDONOUGH concur.