author: MR. JUSTICE HARRISON HON. JOSEPH B. GARY, District Judge,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRADLEY ALLEN WALLACE, Defendant and Appellant.
    No. 85-464.
    Submitted May 13, 1986.
    Decided Oct. 22, 1986.
    727 P.2d 520.
    THE HON. JOSEPH B. GARY, DISTRICT JUDGE, sitting for MR. JUSTICE HUNT, dissented and filed opinion in which MR. JUSTICES SHEEHY and MORRISON joined.

      James G. Hunt argued, Helena, for defendant-appellant.
    Mike Greely, Atty. Gen., Helena, Joe Roberts argued, Asst. Atty. Gen., Helena, John S. Forsythe, Co. Atty., Forsyth, Charles Sprinkle, Deputy Co. Atty., Forsyth, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Bradley Wallace appeals a Rosebud County jury verdict convicting him of aggravated assault. The issues on this appeal are:

(1) Whether the trial court erred in failing to either direct a verdict for appellant or order a mistrial because of the State’s suppression of four witness statements.

(2) Whether the trial court erred in admitting the testimony of a doctor whose name was endorsed as a witness the first day of trial.

(3) Whether the trial court erred in admitting evidence of appellant’s possibly incriminating statement where the State violated the court’s discovery order by failing to notify defense counsel of the statement.

(4) Whether the cumulative error rule mandates reversal.

We find that only harmless error occurred in this case and, therefore, we affirm.

The peculiar nature of this case requires that we set forth the facts in some detail. On November 22, 1985, David Scott, the eventual victim of the assault, was drinking in a Colstrip, Montana, bar/bowling alley. Scott conversed with a friend, David Cogdill, who introduced him to two ladies seated at the bar. Scott had not previously known the two ladies, Darla Baldwin and Shellie Miars. The appellant and his girlfriend, Theresa Wray, were sitting at the bar next to Cogdill, Miars and Baldwin. Scott was moving around the bar talking with different people. Cogdill, Miars, Baldwin and Scott all agree that the appellant referred to Scott, a Native American, as a “prairie nigger” while Scott was only a few feet away. Scott and the appellant were not acquainted. Scott became upset and wanted to ask appellant why he was insulting him. Cogdill and the ladies calmed Scott down and he did not physically confront appellant at that time. Appellant claims that Scott then began cursing him and Cogdill did hear Scott describing appellant with an unpleasant phrase. At that point, appellant’s girlfriend leaned over the bar towards Scott and made a statement variously described as “shut up” or “you guys think you’re so tough” or “shut up or there will be some__”

Scott testified that he did not remember what happened at this point. Most of the witnesses agree that Scott began to walk towards appellant. Arnie Garner, the bartender, was watching the appellant and he testified that the appellant emptied his beer mug on the floor, concealed the mug behind his leg, stood up, approached Scott and smashed the mug over Scott’s head. All the witnesses agree that Scott had his hands down at his sides. Garner stated that he did not see anyone threatening the appellant or Theresa Wray and that there were no indications that Scott was getting ready to fight. Miars and Baldwin both testified that Scott did nothing to provoke the attack. Tom Mulcahy, an acquaintance of Scott who was also present in the bar, testified that Scott was not threatening anyone nor was he in a challenging stance. Cogdill testified that he thought Scott was approaching appellant possibly to “ask appellant to step outside.”

Appellant admits smashing the beer mug over Scott’s head but maintains that he did so in self-defense. Appellant testified that Scott, without provocation, began verbally assaulting appellant; that Theresa Wray asked Scott to shut up; that Scott immediately approached appellant at a brisk pace; that Scott had his hands at his sides; that he thought Scott was going to physically assault appellant or Wray; and that he was afraid of a confrontation.

The initial blow shattered the beer mug and left appellant holding the mug’s jagged glass handle. The bartender, Garner, testified that at the two places the handle joined the mug, the handle had jagged, razor-like edges protruding one-half to three-fourths of an inch. Appellant continued to assault Scott by slashing at his head with the glass handle until Garner grabbed appellant and held his arms back. Garner and Tom Mulcahy saw appellant slash Scott once while Cogdill stated that appellant slashed Scott two or three times. Both Miars and Baldwin also testified that appellant tried to cut Scott with the broken handle.

Dr. Riggenbach testified as to Scott’s injuries. Scott suffered a one inch long laceration and a two and one-half inch long laceration, both on his forehead. The longer one penetrated to the skull. He also received a “rather severe” laceration of the ear. The doctor performed a skin graft on Scott’s ear, a small part of which was missing. The doctor guessed that he used 30-35 stitches on Scott in all.

The police arrested appellant shortly after the attack and took him to the Colstrip jail. A deputy sheriff testified that at the jail the appellant remarked, “it’s a hell of a deal. . . when you can’t protect yourself from some . . . blanket ass that’s going to kick your ass.”

Shortly after the incident, Baldwin, Miars and Cogdill gave short, written statements to the police. Garner gave a taped statement to the police. About a week later, Cogdill, Baldwin and Miars gave more detailed, taped statements to an investigating officer. The deputy county attorney charged appellant with aggravated assault.

At the January 1985 omnibus hearing for this case, the county attorney agreed in writing that the State had “disclosed all evidence in its possession, favorable to the defendant on the issue of guilt.” the District Court also granted defendant’s motions for (1) discovery of all statements made by defendant to investigating officers or to third parties and in the State’s possession; (2) discovery of the names of the State’s witnesses and their statements; and (3) inspection of all physical or documentary evidence in the State’s possession. Contrary to the court’s ruling, prior to trial the State only provided appellant with the three witnesses’ short written statements. The State failed to provide defense counsel with the four longer, taped statements or with appellant’s racist statement made at the jail.

Immediately prior to trial on May 28-31, 1985, appellant made a motion in limine to prevent the State from referring to any statements or admissions made by him against his interest. The State then informed the court and defense counsel of appellant’s remark at the jail referring to a “blanket ass.” The court later allowed a deputy sheriff to testify, over appellant’s objection, to this remark.

While cross-examining Cogdill at trial, defense counsel learned of the State’s failure to produce the four taped witness statements. At that time, two of those witnesses had already testified and defense counsel was in the middle of questioning Cogdill, whose taped statement had been suppressed. The statements were in some respects minimally supportive of appellant’s theory of self-defense. Upon learning of the withheld statements, defense counsel moved for a directed verdict of acquittal. The court did not immediately rule on that motion.

Later in the trial, the State called Dr. Riggenbach, the victim’s treating physician, as a witness. Appellant objected claiming surprise and pointed out that the doctor’s name was not originally endorsed on the information. The State had endorsed the doctor’s name as a witness on May 28, the first day of trial. The trial court allowed the doctor to testify, relying in part upon a prosecutorial brief filed on May 22 which indicated the doctor would testify.

At the close of the State’s case, appellant moved for a directed verdict of acquittal or, alternatively, for a mistrial. The court denied both motions and the jury convicted appellant of aggravated assault. This appeal followed.

Nothing in the record suggests, nor does appellant imply, that the suppression of evidence in this case was other than negligent. Thus, we treat this case as involving the negligent suppression of evidence. We agree with appellant that the State acted improperly in suppressing the taped statements and the jail statement and in endorsing Dr. Riggenbach’s name on the information on the first day of trial. However, we find that these errors are in all respects harmless errors and, therefore, not grounds for reversal.

Montana follows the United States Supreme Court’s definition of what constitutes harmless error in a particular case. State v. Daniels (Mont. 1984), [210 Mont. 1,] 682 P.2d 173, 41 St.Rep. 880; State v. Warnick (Mont. 1985), [216 Mont. 102,] 699 P.2d 1049, 42 St.Rep. 675. The United States Supreme Court has expressed the harmless error rule as:

“the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.”

Delaware v. Van Arsdall (1986), 475 U.S. _,_, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684. We note that the negligent suppression of evidence could constitute constitutional error. (“The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment.” California v. Trombetta (1984), 467 U.S. 479, 480, 104 S.Ct. 2528, 2530, 81 L.Ed.2d 413, 417. Such suppression of evidence can be subject to the harmless error rule. See United States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342.

Miars, in her suppressed statement, said that the victim, David Scott, “kept telling us he would like to go talk to [appellant], which we assumed would end up in a fight.” Miars also stated that “I was watching [the victim] to make sure he didn’t have anything in his hands.” Miars said that after Theresa Wray’s comment, “[Darla and I] both knew there would be a fight.” These portions of Miars’ statement are mildly exculpatory for appellant. The rest of her statement is repetitive of other testimony at trial or of her written statement provided to appellant before trial.

The suppressed statement of Darla Baldwin was similar to, and perhaps less exculpatory for appellant than, her written statement provided to appellant before trial. Garner’s taped statement was provided to appellant midway through trial and before Garner testified. Garner’s statement basically establishes that he knew there was going to be a problem. The suppressed statements of Baldwin and Garner in no way prejudiced appellant.

The suppressed statement of David Cogdill was fairly supportive of appellant’s theory of self-defense. Cogdill said that after the “prairie nigger” comment, “I knew there was going to be a fight;” that as David Scott walked towards appellant “I think [Scott] had intentions of drilling him . . .;” and that Cogdill tried to clear the bar of beer bottles because “I knew there was going to be a fight.” Defense counsel learned of these statements midway through his cross-examination of Cogdill. Counsel obtained a copy of the statement and used it effectively during the rest of the cross-examination. Counsel brought out for the jury’s consideration the exculpatory comments for appellant contained in the statement. Thus, any prejudice caused by the suppression of Cogdill’s statement was substantially mitigated and the jury was able to consider the exculpatory comments.

The last piece of suppressed evidence was appellant’s statement while he was confined in jail. That statement is mildly exculpatory in that appellant was maintaining he had acted in self-defense. However, on May 24, 1985, four days before trial, the State filed a pre-trial brief with the court which recited the jail statement and warned that the statement would be used against appellant. Thus, the appellant did have belated notice of the remark.

Normally we would have serious misgivings about the validity of any conviction where there has been a violation of the court’s discovery orders. However, in this case, we can confidently say there was only harmless error in light of all the testimony, especially the appellant’s.

We find that, except for Cogdill’s statement, the suppressed evidence was either repetitive of other testimony or only minimally supportive of a self-defense theory. The damage caused by the suppression of Cogdill’s testimony was substantially mitigated as explained above. Moreover, we find that appellant’s own testimony belies his theory of self-defense.

Every witness, including appellant, agreed that at the time of the assault David Scott had his arms at his sides. Except for appellant, every witness agreed that Scott did not provoke the appellant to a physical assault. Appellant’s story is that Scott “verbally assaulted” him; that Scott approached appellant at a quick walk; that he thought Scott was approaching to physically attack appellant or Theresa Wray; and that appellant was afraid of a confrontation. In response to this “threat”, the appellant lashed out with the beer mug. Two witnesses stated that appellant concealed the mug behind his leg from Scott. Cogdill, Garner, Mulcahy, Miars and Baldwin all agreed that appellant continued to cut or slash at Scott after the initial assault.

“Under Montana law, specifically Section 45-3-102, MCA:

“A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.”

We believe beyond a reasonable doubt that a jury would decide that appellant’s general feeling of apprehension, unsupported by specific physical actions or threats by the victim, could not justify striking David Scott with a glass mug and slashing him with a sharp, glass handle. The continuing nature of the assault was especially unjustified. We hold that the error in this case was harmless beyond a reasonable doubt.

Appellant also complains that the trial court erred in allowing the State to endorse Dr. Riggenbach’s name on the information on the first day of trial. On May 22, the State filed a reply brief which stated that the State had made travel arrangements for the treating physician. On May 24, the State filed a pre-trial brief which stated that Dr. Riggenbach would testify. On May 29, appellant claimed surprise as to the doctor’s testimony.

The issue here is similar to an issue in State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 41 St.Rep. 1293. In Liddell, we upheld the District Court’s decision allowing the endorsement of an additional witness on the day of trial. There, as here, the defense knew of the witness’ connection with, and importance in, the case. In Liddell, we stated that, “[I]t is discretionary with the District Court to allow additional witnesses, . . .” 685 P.2d at 924. Therefore, given that appellant cannot convincingly claim surprise, we find no error under this issue.

Finally, appellant argues that the cumulative error in this case mandates reversal of his conviction. The cumulative error doctrine refers to a number of errors prejudicing a defendant’s right to a fair trial. State v. Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177, 187-188. In this case, we find no prejudicial error affecting the substantial rights of defendant.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur.

HON. JOSEPH B. GARY, District Judge,

sitting for MR. JUSTICE HUNT, dissenting:

As history shows, good law must occasionally rise out of the ashes of bad facts. Such should be the case in State v. Wallace. The facts indicate that the victim, a Native American named David Scott, was dealt with brutally and the Appellant deserves punishment. Unfortunately, we see some relatively serious procedural flaws in the State’s presentation of its case. It is always difficult to measure the impact of procedural flaws, but the result of a reversal is to try the case again. This is a fair response to serious procedural flaws, and will maintain the public confidence in judicial integrity.

At the close of the State’s case during the trial, the District Court responded to the defense motions regarding the failures of the State to disclose evidence with these words:

“All right. This is the first time in 18 years that the State of Montana has not provided full discovery and I will accept the State’s excuse that it was a mistake and in view of the testimony given on both direct and cross-examination, it would appear to the Court that the defense counsel was capable of bringing out all information that he desired or at least he’s been able to provide a good defense, and perhaps the State is entitled to make one mistake every 18 years so the motion is denied.” (Trans, p. 322, LNS. 6-14).

To a certain extent we agree that it is understandable and predictable that the State will make a mistake every now and then. However, it should not be to the detriment of an unlucky defendant. Rather, the State should take the consequences, and re-try the matter.

The Appellant presented three strong arguments regarding the failure of the State to disclose pertinent evidence. First, the State failed to disclose certain witness statements which were favorable to the defense. Second, the State failed to endorse an expert witness in a timely fashion. And third, the State failed to notify the Defendant of his alleged statements previously made to an investigating officer. These errors — and we definitely perceive these shortcomings as errors — violated the Omnibus Order of the District Court. The real issue in this case is whether the omnibus procedures and orders are meaningful or meaningless. We believe they are meaningful, and a defendant should not be penalized by their violation. Once that omnibus procedure order is given, it is clear that parties and their counsel rely on its contents. It is only fair and just that those orders be upheld. According to precedent in this State, the “purpose of pre-trial orders is to prevent surprise and to permit counsel to prepare their case for trial on the basis of the pre-trial order.” State v. Doll, (Mont. 1985), [214 Mont. 390,] 692 P.2d 473, 42 St. Rep. at 44. It would stretch one’s imagination to believe that the series of procedural violations on the part of the State did not to some extent prejudice and hamper the Defendant. The rule laid down by State v. Patterson, (Mont. 1983) [203 Mont. 509,] 662 P.2d 291, 40 St. Rep. 600 (1983), is that the nature of negligently suppressed information must be material, vital, exculpatory, and prejudicial. It is definitely conceivable that this standard is met in the case at bar. Some of the statements which the State failed to disclose tend to show justifiable fear and justifiable use of force on the part of the Defendant. On top of this error, the failure to timely endorse an expert witness could have conceivably caught the Defendant’s counsel unprepared considering the technical details involved in the cross-examination of a doctor. Finally, the statements made by the Defendant to the Deputy Sheriff are clearly prejudicial, and any defense counsel would want to know such statements in advance in order to prepare his case to lessen their impact. Proper notice, as required by the Omnibus Order, might have changed the defense tactics. In sum, proper State procedure might have lead to better defense preparation, might have improved the cross-examination of an expert witness, might have given rise to softening the impact, and might have provided more credence to the defense of justifiable use of force. For example, the information might have been addressed in the opening statement, and it is the experience of many trial lawyers that addressing one’s weaknesses in an opening statement can be effective strategy.

In summary, we are true believers in the procedures established through omnibus hearings and orders, and the philosophy of preventing surprise and having the opportunity to prepare your best case. This is the proper procedure to best promote justice. These procedures were violated, albeit unintentionally. It is the job of this Court — not to require perfection — but to require high standards such that defendants are not unfairly prejudiced. The fine line was crossed in this case, and another trial is in order.

We therefore dissent to the majority Opinion.

MR. JUSTICE SHEEHY and MR. JUSTICE MORRISON join in the dissent of THE HONORABLE JOSEPH GARY.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    JOHN K. OLSON and Cathryn W. Olson, Plaintiffs and Appellants, v. DEPARTMENT OF REVENUE, an agency of the State of Montana, John Lafaver, Director; Margaret Monical, Clerk and Recorder for County of Park, a political subdivision of the State of Montana; and the State of Montana, by Michael T. Greely, Attorney General for the State of Montana, Defendants and Respondents.
    No. 85-489.
    Submitted July 8, 1986.
    Decided Oct. 24, 1986.
    726 P.2d 1162.

      Roger Tippy argued, Helena, for plaintiffs and appellants.
    Mike Greely, Atty. Gen., Judy Browning argued, Asst. Atty. Gen., R. Bruce McGinnis argued, Dept, of Revenue, Helena, Jack Yardley, Deputy Co. Atty., Livingston, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

On October 2, 1981, John and Cathryn Olson filed a complaint for declaratory judgment in the First Judicial District, in and for the County of Lewis and Clark. They alleged primarily that Section 15-30-103, MCA, is unconstitutional as applied to them because the State of Montana has denied them equal protection of the laws. On January 6, 1984, the Olsons filed a motion for summary judgment. After extensive briefing and a hearing on the matter, the District Court entered its judgment granting plaintiffs’ motion for partial summary judgment on the issue of voting rights and denying their motion on the issue of income taxation. The Olsons have appealed from both orders in the judgment. We affirm.

The Organic Act of the Territory of Montana, as enacted in 1864, defined part of the southern boundary as running due west on the 45th degree of latitude to a point formed by its intersection with the 34th degree of longitude west from Washington. 13 Stat. 85. By act of Congress, Yellowstone National Park (Yellowstone) was established in 1872. The northern boundary of Yellowstone was defined as the latitude of the junction of the Yellowstone and Gardiner Rivers, which is about three miles north of the 45th parallel. 16 U.S.C. Section 21. Consequently, there is a strip of land in the northern part of Yellowstone, approximately three miles in width, that is within the State of Montana. These boundaries have remained unchanged to the present day.

Appellants live in that portion of Yellowstone which is north of the 45th parallel — specifically, between Gardiner, Montana, and the community of Mammoth Hot Springs. Although they reside within the boundaries of Montana, they do not reside within the boundaries of any county. Because of their “county-less” status, appellants’ right to vote was limited.

Section 13-l-lll(l)(c), MCA, requires that, in order to vote in elections, a person must be a resident of the State of Montana and of the county in which he offers to vote for at least thirty days. Pursuant to this statute, the Clerk and Recorder of Park County, Montana, created a special register of electors for persons residing in that strip of Yellowstone between the 45th parallel and the northern boundary of the Park. This special register was for a ballot limited to elections for federal offices; therefore, appellants, and others similarly situated, could not vote in any state or local elections. However, persons living in this area were given an opportunity to become annexed to Park County by elections held November 7, 1978. Although the voters of Park County approved the proposed annexation, the residents of that part of Yellowstone which is in Montana unanimously rejected it. Thus, no annexation occurred.

Appellants are employed by TWA Services, Inc., a concessionaire of the National Park Service at Mammoth Hot Springs, which is within the boundaries of the State of Wyoming. All of appellants’ job duties are performed outside of Montana.

Beginning in 1975, the Department of Revenue (DOR) required appellants’ employer to withhold from appellants’ wages a certain amount of money for the state income tax, pursuant to Sections 15-30-103 and 15-30-202, MCA. Appellants filed timely returns claiming no income taxes were due the State because they resided on a federal area, and they applied for a refund of all taxes previously withheld. DOR granted a refund to appellants for the taxable years ending December 31, 1974, and December 31, 1975. However, DOR subsequently reversed itself and demanded payment of the sums refunded. When appellants refused, DOR issued warrants for distraint for the return of the refunds. DOR has kept the amounts withheld from appellants’ wage since the beginning of 1977 and has claimed that additional taxes are due. It began proceedings in September 1981 to garnish appellants’ wages.

On October 2, 1981, appellants filed a complaint for declaratory judgment. In their complaint, appellants alleged that Section 15-30-103, MCA, is unconstitutional as applied to them because the State is denying them equal protection of the laws. They based this assertion on the fact that they were not allowed to vote in state and local elections. Additionally, they claimed that Section 13-l-lll(l)(c), MCA, is unconstitutional as applied to them. Appellants requested the District Court to issue a restraining order prohibiting DOR from garnishing their wages and to order a stay of execution of any DOR judgments against them for back taxes. In the alternative, appellants asked the court to find that they are not subject to state income taxes or to find that they may vote in national, state and local elections.

On January 6, 1984, appellants moved for summary judgment. The court denied their motion as it related to the issue of the income tax but reserved judgment on the issue of voting rights until further briefing. Appellants subsequently moved the court to enter a partial summary judgment that Section 13-1-111(1) (c) is unconstitutional as applied to them. In its response, the State agreed that appellants could not constitutionally be denied the right to vote in state and local elections. The District Court entered a final judgment on August 23, 1985, granting appellants’ motion for partial summary judgment on the issue of voting rights and denying their motion on the issue of income taxation.

Appellants raise three issues for review:

1. Whether the declaratory judgment of the District Court is responsive to the pleadings and issues raised regarding the constitutionality of the county residency requirement for voter registration and other benefits provided by county residency?

2. Whether the State of Montana has generally denied appellants equal protection of the laws?

3. Whether the legislature must take some formal action to accept retrocession of taxing jurisdiction by the federal government before an income tax can be lawfully assessed on appellants?

I

Appellants first contend that the District Court’s judgment is not responsive to their motion for summary judgment because it did not specifically declare that Section 13-l-lll(l)(c) was unconstitutional. In its Opinion, Memorandum and Order the court stated:

“[Plaintiffs’ Motion for Partial Summary Judgment is granted on this issue. The Court finds, declares and concludes that plaintiffs and plaintiff-intervenor, who are residents of that portion of Yellowstone National Park which is located within the exterior boundaries of the State of Montana, but not within any county of the state, must be permitted to vote in state and county elections . . The franchise of state residents who have a substantial interest in the state’s electoral decisions but do not live in a county should not be conditioned upon residency within a county for a period of thirty says [sic] as is required by Section 13-1-111(1)(c), MCA. The Park County Clerk and Recorder should, upon request, permit those plaintiffs ... to register and vote in state and local elections.” Although the court did not specifically state that Section 13-1-111(1) (c) is unconstitutional, the judgment had the same effect. Appellants’ motion was granted, and there is no uncertainty that they can now register and vote in state and local elections.

We find no error in the court’s judgment. In Evans v. Cornman (1970), 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370, the United State Supreme Court held that a state cannot constitutionally prohibit residents of a federal enclave located within that state from voting in state and local elections unless the state can demonstrate that those residents are not substantially interested in electoral decisions made within that state. In this case, the State has made no attempt to demonstrate the requisite lack of interest of appellants in electoral decisions; in fact, the State has agreed that appellants cannot constitutionally be prohibited from voting in state and local elections. Therefore, so that there is nó doubt concerning appellants’ right to fully participate in the electoral process, we hold that Section 13-1-111(1) (c) is unconstitutional insofar as it acts to deny those who live in the Montana portion of Yellowstone from voting in state and local elections. Since the District Court’s judgment achieved this same result, we find no reason to require the court to amend it.

Appellants also contend that the court’s judgment was silent as to certain collateral issues which were raised below; for example, whether appellants and their neighbors are residents for hunting or fishing license purposes. For the reasons set forth below, this contention need not be addressed.

II.

Appellants claim that the State has generally denied them equal protection of the laws because of their “county-less” status. They assert that because they do not reside in a county, they cannot run for county office, they cannot obtain a hunting or fishing license, and they do not have a county domicile for civil litigation venue purposes. Appellants contend that these statutes which require county residence before certain benefits can attach are unconstitutional as applied to them.

At the threshold of every case, especially those where a statutory or constitutional violation is claimed to have occurred, is the requirement that the plaintiff allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . .” Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678. This principle is generally referred to as standing to sue, and there are two distinct bases upon which standing rests. The first is the constitutional provision which extends original jurisdiction of the District Court to “cases at law and in equity.” Art. VII, Section 4, 1972 Mont. Const. This provision has been interpreted as embodying the same limitations as are imposed by federal courts under the Article 3 “case or controversy” provision of the United States Constitution. See, Stewart v. Bd. of Cty. Com’rs of Big Horn Cty. (1977), 175 Mont. 197, 573 P.2d 184. The second base of the doctrine is one of judicial self-restraint imposed for reasons of policy.

At a minimum, the constitutional aspect of standing requires a plaintiff to show that he has personally been injured or threatened with immediate injury by the alleged constitutional or statutory violation. Before we can find a statute to be unconstitutional, “the party who assails it must show, not only that the statute is invalid, but that he has sustained, or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Chovanak v. Matthews (1948), 120 Mont. 520, 526, 188 P.2d 582, 585.

It may be true that appellants would not have been permitted to obtain a hunting or fishing license if they had sought one. However, we do not know this because appellants have not alleged that they asked for such a license and were denied. Nor have they alleged that they sought to run for a county office and were prohibited from doing so; they have not even alleged that they want to do either of these things. It is not enough that appellants allege an injury which others may have suffered by the operation of some statute. They must allege an injury personal to themselves as distinguished from one suffered by the community in general. As stated by the United States Supreme Court in Warth v. Seldin (1975), 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343, 357:

“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, ‘none may seek relief on behalf of himself or any other member of the class.’ ”

Appellants have not alleged a personal injury that is a prerequisite to an adjudication on the merits. Appellants may have shown that certain statutes could cause an injury to some unidentified persons living in the Montana portion of Yellowstone. However, the injury-in-fact test “requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton (1972), 405 U.S. 727, 734-735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636, 643. See also State v. Parker (1973), 161 Mont. 394, 506 P.2d 850.

Appellants have not alleged a personal injury suffered by the operation of the statutes in question sufficient to meet the requirements of standing. Therefore, with the exception of their claim on the voting issue where a personal injury was shown, the alleged denial of equal protection will not be considered.

III.

In 1889, when Montana became a state, it acquired sovereignty over all persons and property within its jurisdiction, except for those things within the exclusive jurisdiction of the federal government. One of the most basic aspects of a state’s sovereignty is its inherent power to levy a tax on its citizens, for without this power, the state as an entity would cease functioning. This power is limited only by the supremacy of the federal government and the federal constitution. “All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which is does not extend, are, upon the soundest principles, exempt from taxation.” M’Culloch v. State of Maryland (1819), 4 Wheat 316, 429, 4 L.Ed. 579, 607. Therefore, where the federal government exercises exclusive jurisdiction, the state has no power to tax persons and property under that jurisdiction.

In 1917 the legislature ceded exclusive jurisdiction over the Montana portion of Yellowstone National Park to the United States, reserving only the right to serve civil or criminal process. The State did not reserve the power to levy a tax upon any persons or property in that part of the Park. Thus, under Art. I, Section 8, Cl. 17 of the United States Constitution, the State subsequently had no power to tax any persons residing in that area of the Park. However, in 1940, Congress passed what is commonly called the Buck Act. That Act provides:

“No person shall be relieved from liability for any income tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving income from transactions occurring or services performed in such area; and such State or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.”

4 U.S.C. Section 106(a).

The purpose of the Act was to remove the inequity that existed between individuals who resided on federal lands and paid no taxes and those who did not reside on federal lands. Prior to this Act, those persons living on federal areas were exempt from state income taxes but were able to enjoy the benefits offered by state citizenship. The Buck Act removed this inequity.

The District Court found that the State acquired the right to tax those persons living in the Montana portion of Yellowstone by virtue of the Buck Act. Appellants contend that this is error. They assert that before the State can levy such a tax, the legislature must take some formal action to reclaim jurisdiction over that area; namely, amend the boundaries of Park County or amend Section 2-1-207, MCA, which cedes exclusive jurisdiction over the area to the United States.

Initially, we find important the fact that the Buck Act itself does not require any formal action prior to the state’s acquisition of taxing jurisdiction. Specifically, the Act states that the “State or taxing authority shall have full jurisdiction and power to levy and collect such tax ... to the same extent and with the same effect as though such area was not a Federal area.” [Emphasis added.] From a plain reading of the statute, Montana acquired jurisdiction to tax appellants by virtue of the Buck Act itself without the need for anything further to be done on the part of the legislature.

Appellants have not cited, and we have been unable to find, any cases requiring formal action by the state legislature before the state could levy a tax on residents of a federal area. Kiker v. City of Philadelphia (1943), 346 Pa. 624, 31 A.2d 289, was the first major case to consider the effect of the Buck Act on a state’s taxing jurisdiction over residents of a federal area. An ordinance of the City of Philadelphia imposed an income tax on work performed in that city. Kiker was a resident of the State of New Jersey and was employed at the League Island Navy Yard, which was originally a part of Philadelphia. League Island was purchased by the United States in 1827 from Philadelphia who ceded exclusive jurisdiction over the area to the federal government. The Pennsylvania Supreme Court held that Kiker’s income was subject to the city’s income tax by virtue of the Buck Act even though he was a nonresident and was employed by the federal government. The court stated:

“Although plaintiff’s salary was at that time immune from this levy [i.e., prior to the Buck Act], when the immunity was removed by Public Act No. 819 [the Buck Act], which receded to Philadelphia jurisdiction to impose taxes on League Island, the ordinance became applicable there without further action by either the State legislature or city council.
“When the disability of the State to tax federal incomes was removed, there was no need for a reenactment of the legislation to reach incomes formerly exempt; the powers originally granted, broad enough to include all income regardless of the source, were sufficient for the purpose. [Emphasis added.]”

Kiker, 31 A.2d at 297.

The Indiana Supreme Court had before it the same argument as is advanced by appellants in this case; i.e., the Buck Act is permissive only, and since the legislature had failed to take further positive steps to reclaim taxing jurisdiction over the federal area, the tax could not be levied. That court held:

“In our opinion any immunity which appellee herein may have enjoyed from the payment of Indiana Gross Income tax, on income received from construction contracts performed for the United States by and through its duly authorized agents, on lands either ceded to or purchased by the United States,. . . was revoked by the enactment of Section 106 of the ‘Buck Act’ and it was not necessary for the Indiana Legislature to take any positive action either to amend or repeal the Cession Act of 1883, as amended.
“The enactment and enforcement of the Gross Income tax law was sufficient to show an acceptance by the State of Indiana of the offer of Congress to permit the levying of such taxes as provided in the ‘Buck Act,’ if such were necessary.”

State v. Pearson Construction Company (1957), 236 Ind. 602, 141 N.E.2d 448, 453.

We, too, find appellants’ argument unpersuasive. The power to tax is an inherent feature of state sovereignty. Montana had jurisdiction originally to tax persons living in the Montana portion of Yellowstone prior to its cession to the United States. After the cession, the only impediment to levying such a tax was the exercise of exclusive jurisdiction over the area by the federal government. Therefore, the application of an income tax to appellants and others similarly situated does not depend upon an act of the Montana legislature, but rather upon the will of Congress. By passing the Buck Act, Congress expressed its intention to remove the jurisdictional impediment to taxing residents and employees of federal areas that existed prior to the Act. Montana regained taxing jurisdiction over residents of federal areas by virtue of the Buck Act itself, and there was no need for any further action to be taken by the legislature. The State is free to levy a tax upon appellants’ income “to the same extent and with the same effect” as if the Montana portion of Yellowstone were not a federal area.

However, appellants point to Sections 2-1-215 and 2-1-216, MCA, for their assertion that retrocession of jurisdiction is not effective until acceptance by the governor. Since the governor has not accepted retrocession of taxing jurisdiction over the area in question yet, the State has no jurisdiction to tax appellants. Section 2-1-216, MCA, provides:

“(2) After acceptance and approval by the governor, retrocession of jurisdiction becomes effective upon filing of the original acceptance with the secretary of state of Montana.”

Read literally, this statute does seem to require acceptance by the governor prior to any retrocession of jurisdiction by the federal government. The legislative history of this statute indicates that the legislature probably did not intend to require acceptance by the governor prior to every retrocession. We need not decide this issue, however, because there is a fatal flaw in appellants’ argument.

Sections 2-1-215 and 2-1-216 were enacted in 1979, and there was no similar statute prior to that time. The Buck Act was passed in 1940. Consequently, the State acquired taxing jurisdiction over the Montana portion of Yellowstone in 1940 through the Buck Act. Although it is said that acceptance by the State is technically necessary to render a retrocession of jurisdiction effective, it is universally held that acceptance is presumed, especially where state taxation of the federal area is involved. S.R.A., Inc. v. Minnesota (1946), 327 U.S. 558, 66 S.Ct. 749, 90 L.Ed. 851; Burns v. State, Bureau of Revenue, Income Tax Div. (1968), 79 N.M. 53, 439 P.2d 702; Kiker, supra. We find nothing by the legislature indicating that retrocession of taxing jurisdiction was not accepted. Thus, Montana acquired taxing jurisdiction over the Park strip long before Sections 2-1-215 and 2-1-216 were passed. In the absence of an express intent to the contrary by the legislature, statutes are presumed to operate prospectively only. Penrod v. Hoskinson, M.D. (1976), 170 Mont. 277, 552 P.2d 325. There is nothing in those statutes indicating an intent by the legislature to deprive the State of taxing jurisdiction in the absence of formal acceptance. We will not apply them retroactively to deprive the State of jurisdiction it had acquired almost forty years earlier.

Appellants further contend that the State must cure its denial of equal protection of the laws, vis-a-vis the residents of the Park strip, before it can constitutionally levy an income tax on those residents. Specifically, they assert that before the income tax can be levied, the State must confer upon them all of the benefits of state citizenship now enjoyed by those who reside within a county. This is a novel argument indeed. To begin with, we have already determined that appellants do not have standing to raise their claims of denial of equal protection. However, even if we assume that appellants do not now enjoy all the benefits which derive from county residence, their argument still fails.

It is beyond question that the State has the right to tax the incomes of nonresidents earned within this state. That principle was established over fifty years ago by the United States Supreme Court in Shaffer v. Carter (1920), 252 U.S. 37, 40 S.Ct. 221, 64 L.Ed. 445. Yet, it is obvious that nonresidents do not share in all of the benefits conferred by residency within this state. Thus, by simple force of logic, appellants’ simplistic argument that the State cannot levy a tax upon their incomes until it also bestows upon them every benefit enjoyed by those who reside within a county cannot be accepted.

This same argument, although under slightly different facts, was raised in American Commuters Association v. Levitt (2nd Cir. 1969), 405 F.2d 1148. There, plaintiffs were nonresidents of New York and were subjected to New York income tax for work performed in that state. They sought a declaratory judgment holding unconstitutional various New York statutes which afford benefits to New York residents because those statutes discriminate against nonresidents. Plaintiffs argued that they could not take advantage of the benefits offered by residency in New York but were subjected to identical tax burden. The court rejected this argument, noting that New York residents are subjected to sales and property taxes in addition to the income tax, so there was not identical taxation between residents and nonresidents. In addition, plaintiffs did receive some benefits by reason of their working in New York, such as police and fire protection.

In a case such as this one, where a tax is alleged to be unconstitutional because the claimants, whether they are residents or nonresidents, do not enjoy the same benefits as others who reside within this State, the controlling test in determining the constitutionality of the tax is “whether the state has given anything for which it can ask return.” Wisconsin v. J.C. Penney Co. (1940), 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267, 270-271. As residents of Montana, appellants enjoy substantial benefits. They are able to freely use the State’s roads, enjoy the State’s parks, have access to the State’s courts, and have the right to run for state office. Since 1984 they have had the right to vote in state and local elections. Although the National Park Service now provides appellants with road maintenance and law enforcement within the Park, the State is obligated to supply those services to appellants. Should the Park Service ever decide to cease performing those services, road maintenance and police and fire protection would be provided by the State. Furthermore, appellants do not have an identical tax burden with county residents since they are not subject to any taxes imposed by reason of county residency. Therefore, we hold that the tax levied on appellants’ income is constitutional and does not deprive them of equal protection of the laws. The denial of certain benefits, as alleged by appellants, is not a sufficient reason to prevent the State from levying an income tax upon them. Were it otherwise, every time an equal protection claim were sustained before this Court or before a federal court, the State would be obligated to return all income taxes withheld during the period the particular benefit was being denied.

Affirmed.

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


author: MR. JUSTICE GULBRANDSON

text:
    SANDRA E. SWAN, Claimant and Appellant, v. SLETTEN CONSTRUCTION COMPANY, Employer, and Missoula Service Company, as agent for Glacier General Assurance Company or Intermountain Insurance Company, as the case may be, Defendants and Respondents.
    No. 86-85.
    Submitted on Briefs June 24, 1986.
    Decided Oct. 24, 1986.
    726 P.2d 1170.

      Church, Harris, Johnson & Williams, Cresap S. McCracken, Great Falls, for claimant and appellant.
    Garlington, Lohn & Robinson, Bradley J. Luck, Missoula, Swanberg, Koby, Swanberg, Matteucci, Ray F. Koby, Great Falls, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Sandra Swan Appeals a Workers’ Compensation Court order which declines to award her attorney’s fees on a lump sum basis. The issues on appeal are (1) whether the lower court erred in refusing to award attorney’s fees to appellant’s counsel on a lump sum basis, and (2) whether the lower court erred in refusing to award attorney’s fees to appellant’s counsel for benefits received by appellant’s step-daughter. We affirm.

In September 1982, Donald Swan died in an automobile accident in Wyoming. Sandra Swan, who had married Donald Swan three months earlier, made a claim for workers’ compensation benefits. In November 1982, the insurer denied appellant’s claim on the basis that Mr. Swan’s death did not arise out of or in the course of his employment. Ultimately, in August 1983, the Workers’ Compensation Court held that appellant was entitled to workers’ compensation benefits. The court imposed a 20% penalty upon the insurer for its unreasonable delay or refusal in paying benefits. The court also found that appellant was entitled to reasonable costs and attorney’s fees.

Section 39-71-721, MCA, provides workers’ compensation benefits for an employee’s death caused by work-related injuries. Subsection (5) of Section 39-71-721, MCA, states:

“If any beneficiary of a deceased employee dies, the right of such beneficiary to compensation under this chapter ceases. Death benefits must be paid to a widow or widower for life or until remarriage, and in the event of remarriage, 2 years’ benefits must be paid in a lump sum to the widow or widower.”

The two years of benefits paid upon remarriage have been called “dowry” or “minimum entitlement” benefits.

Appellant had a contingency fee agreement with her attorney. That agreement stated that the

“[Attorneys have agreed to abide by the attorney’s fees provisions and regulations established by the State of Montana Division of Workers [sic] Compensation and will not charge in excess thereof.” The Administrative Rules of Montana relative to workers’ compensation include Section 24.29.3801 which states, in part:
“(2.) An attorney representing a claimant on a workers’ compensation claim and who plans to utilize a contingent fee arrangement to establish the fee arrangement with the claimant, may not charge a fee above the following amounts:
“(b.) For cases that go to a hearing before the workers’ compensation judge, thirty-three percent (33%) the amount of compensation payments the claimant receives from an order of the workers’ compensation judge. (Emphasis added.)”

In August 1983, appellant’s counsel filed a petition requesting that the court order the respondent to pay $200,793.92 for appellant’s attorney’s fees. Counsel calculated this figure by taking one-third of appellant’s projected benefits of $607,637.66 and adding $273.50 for costs. Counsel calculated appellant’s projected future benefits by multiplying her weekly benefits of $263 by 52 weeks a year, and multiplying that figure by 44.1 years (appellant’s life expectancy as established by mortality tables submitted by appellant). In sum, counsel sought immediate contingent fees for benefits which will possibly be paid for the next 44 years.

In September 1983, Tana Swan, Mr. Swan’s minor daughter, through separate counsel, filed a workers’ compensation claim arising from her father’s death. On October 26, 1983, the Workers’ Compensation Division found that Tana Swan, as a legal beneficiary, was entitled to share the benefits and ordered that benefits be paid to her in the sum of $131.50 per week until age 25 if unmarried and a full-time student. On the same date, the Division ordered that appellant wife was entitled to $131.50 per week for life or until remarriage. Those Division orders were never appealed. Later, through the efforts of appellant’s counsel, it was established that Tana Swan lost her entitlement as she was only a part-time student as of March 20, 1985, and her benefits were terminated, thus increasing the benefits paid to the surviving wife. Appellant’s counsel then claimed attorney’s fees on the benefits paid to Tana on the basis that Tana would not have received benefits without his efforts on behalf of her stepmother.

In July 1985, the Workers’ Compensation Court entered an order awarding attorney’s fees. The court later entered two other orders, in August 1985 and in January 1986, clarifying its order on attorney’s fees. Taken together, these orders provide the following: as of November 9, 1984, respondent had paid $8,098.75 in attorney’s fees to appellant’s counsel for benefits paid up to that time; appellant’s counsel was immediately entitled to $9,051 as fees of one-third of appellant’s dowry award (appellant’s two year minimum entitlement to benefits in the event she remarries); if appellant is alive and has not remarried within two years, her counsel can petition the court for biweekly attorney’s fees (based on one-third appellant’s biweekly benefits); and appellant’s counsel is not entitled to attorney’s fees for the benefits paid to Tana Swan because he did not represent Tana’s interests. This appeal followed.

Section 39-71-611, MCA, gives the Workers’ Compensation Court discretionary authority to determine reasonable attorney’s fees. Conway v. Blackfeet Indian Developers, Inc. (Mont. 1985), [217 Mont. 54,] 702 P.2d 970, 42 St.Rep. 1020. Thus, the standard of review on this appeal is whether the lower court abused its discretion in determining reasonable attorney’s fees. The standard of reasonableness includes both “the amount, and the kind of fee — lump sum or periodic.” (Emphasis in original.) Conway, [217 Mont. 54,] 702 P.2d at 973.

We hold that the lower court did not abuse its discretion in providing for payment of the attorney’s fees. Respondent has paid a substantial amount in attorney’s fees. As appellant receives biweekly benefits in the future, her counsel can petition the court for additional fees. We do not agree that counsel is now entitled to over $200,000 in fees on the possibility that appellant will collect benefits the next 44 years because benefits to appellant will cease if she remarries or dies.

Moreover, “. . . as between attorney and client, Montana will enforce a contingent fee contract according to its written terms.” Wight v. Hughes Livestock Co., Inc. (Mont. 1983), [204 Mont. 98,] 664 P.2d 303, 309, 40 St.Rep. 696, 702-703. Although this case does not involve enforcing the contract as between attorney and client, we find it reasonable for the lower court to enforce the contract according to its terms. The contingent fee contract incorporates the Administrative Rules of Montana regulations on contingent fee contracts. Those regulations provide that in a situation such as this an attorney may not collect, as fees, over one-third of the compensation benefits a claimant receives. Counsel is seeking his fees now for benefits appellant may never receive. We hold that the lower court did not err in refusing counsel a lump sum award of fees.

We also hold that the lower court did not err in refusing counsel a contingency fee based on Tana Swan’s benefits. Tana was represented by her own counsel and appellant’s counsel did not have a contingency fee agreement with her. His fee agreement, in effect, was based upon the benefits received by his client, Sandra Swan.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    DAVID EVANS, Plaintiff and Appellant, v. MONTANA NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS of the State of Montana, and State of Montana, Defendants and Respondents.
    No. 86-128.
    Submitted on Briefs July 17, 1986.
    Decided Oct. 24, 1986.
    726 P.2d 1160.
    Moses Law Firm, Jay Lansing, Billings, for plaintiff and appellant.
    R. Scott Currey, Agency Legal Services Bureau, Helena, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff David Evans appeals from summary judgment against him entered by the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm.

There is one issue on appeal. Did the District Court err in granting summary judgment in favor of defendants?

Evans is a member of the Montana National Guard. In 1981, he went on weekend drill with the Guard at Fort Harrison. Evans was assigned, along with two others, the task of moving a Coke machine from one part of a building to another. With the help of the other two cadets, the Coke machine was tipped on a hand cart so that it was resting on Evans’ back. It was then moved to another room. When Evans attempted to right the Coke machine, the machine and cart moved forward pinning Evans’ head and neck against the wall. An ambulance was called and he was hospitalized.

After hospitalization, Evans returned to his job as a mail carrier in Billings. In March, 1983, he could no longer physically perform the work. In November, 1983, he underwent surgery for a herniated disc in his back. He has not been able to return to work since the surgery.

Evans filed a complaint asserting two claims against defendants, the Montana National Guard, Department of Military Affairs, and the State of Montana. The first count is a negligence action, the second is a claim brought pursuant to Section 10-1-504, MCA (1981).

The District Court granted summary judgment for failure to state a claim upon which relief could be granted. The District Court stated that both sides agreed as to the facts of the case. The court noted the unique position of the Montana Guard, and other state militias, in that it is subject to concurrent control by the states and by Congress.

In times of national emergency as declared by Congress, the militia may be called to active federal duty by the President pursuant to 10 U.S.C. Section 3500. At such times the militia is subject to federal authority, and operates under rules virtually identical to the United States Army.

During times of state emergency, the militia is subject to call for service by the Governor. Art. VI, Section 13, 1972 Mont. Const. Then the militia operates under state authority, but only to the extent that the state rules conform to applicable federal law. Section 10-1-105, MCA.

In times of peace, the militia operates somewhere between the two. The Guard is paid by the U.S. Army. All state militia are required to assemble and drill at least 48 times each year and participate in training and other exercises at least 15 days a year in order to receive federal funding pursuant to 32 U.S.C. Section 502(a). The weekend drill that Evans was on was a training session required by 32 U.S.C. Section 502(a). However, the weekend drill was called by the State Adjutant General. The District Court held that if Evans was under state authority at the time of the accident, his exclusive remedy is a Workers’ Compensation Claim. However, if Evans was under federal authority at the time of the accident, his remedy is in Federal Court pursuant to Federal Tort Claims Act. 28 U.S.C. Section 1346(b). The District Court concluded that it was not the proper forum.

On appeal, Evans contends there are two unanswered material issues of fact: whether the Montana National Guard and the State of Montana are employers as defined under Section 39-71-117, MCA, and whether Evans is an employee under Section 39-71-118, MCA. Both of these questions would have to be answered in the affirmative in order for Evans to have a remedy under Workers’ Compensation.

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Clarks Fork National Bank v. Papp (Mont. 1985), [215 Mont. 494,] 698 P.2d 851, 42 St.Rep. 577; Cereck v. Albertsons, Inc. (1981), 195 Mont. 409, 637 P.2d 509. The issues of fact raised by Evans are not factual issues, they are questions of law. There are no disputed facts in this case. The question then becomes, were defendants entitled to judgment as a matter of law? We hold they were. Evans has no right to sue under the State Tort Claims Act. The State Tort Claims Act, Section 2-9-102, MCA, states:

“Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article II, Section 18, of the Constitution of the State of Montana.”

Governmental entity is defined in Section 2-9-101(3), MCA, as: “. . . the state and political subdivisions as herein defined.” Political subdivisions are defined in Section 2-9-101(5), MCA, as: “. . . any county, city, municipal corporation, school district, special improvement or taxing district, or any other political subdivision or public corporation.”

The National Guard is not a political subdivision of the state, it is a military force of this state. Traditionally, the federal government and state governments have not been held liable in tort for injuries that rise “in the course of activity incident to service.” Feres v. United States (1950), 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152,161; U.S. v. Lee (1968), 400 F.2d 558, cert. den. (1969), 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695.

In Feres, three separate cases were combined but in each the claimant was a member of the military injured by the negligence of other military personnel. Each sued in tort under the Federal Tort Claims Act 28 U.S.C. Section 1346(b). The United States Supreme Court held that members of military may not sue in tort for injuries that arise in the course of activity incident to service. It so held for two reasons. First, Veterans Administration benefits, to which servicemen are entitled, establish a no fault compensation scheme as a substitute for tort liability. Second, the Court deplored the effect such suits could have on the maintenance of military discipline and the extreme results which might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in military duty. In dicta, the United States Supreme Court stated, “[Claimant cites us no state, and we know of none, which has permitted members of its militia to maintain tort actions for injuries suffered in the service . . .” Feres, 340 U.S. at 142, 71 S.Ct. at 157, 95 L.Ed. at 158-59.

Likewise, in this case, appellant cites us no case, and we know of none, in which a state allowed members of its militia to sue the state in tort for injuries received incident to service.

We do not make any express ruling as to whether an injured National Guardsman is an employee within the meaning of the Workers’ Compensation Act or as to whether the State is an employer within the meaning of that Act. We cannot rule on this issue because it has not been raised and ruled on in the Workers’ Compensation Court.

The second count of Evans’ complaint alleges that Section 10-1-504, MCA (1981), provides a remedy for him. That section, which was repealed in 1983, stated:

“A member of the organized militia who is wounded, disabled, or dies while on duty in the service of this state shall receive the same benefits that would have been received if the member had been in federal service. However, no benefits may be granted or paid to a member if the member receives a similar benefit from the federal government for injuries or death sustained while on duty.”

However, this section is of no avail. Within the context of Title 10, Chapter 1, Part 5, the words “in the service of this state” clearly refer to being called into active duty during times of state emergency by the Governor, pursuant to Art. VI, Section 13, 1972 Mont. Const. The National Guard was not called to active service by the Governor in this case. The District Court was correct in granting summary judgment.

By this opinion, we do not determine that Evans has no remedy under federal .law or state Workers’ Compensation law, we simply decide that there exists no remedy under the State Tort Claims Act or Section 10-1-504, MCA (1981).

Affirmed.

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


author: MR. JUSTICE MORRISON

text:
    R. I. DIEFENDERFER, JR., Plaintiff and Appellant, v. CITY OF BILLINGS, a municipal corporation, Defendant and Respondent.
    No. 86-266.
    Submitted on Briefs Sept. 11, 1986.
    Decided Oct. 24, 1986.
    Rehearing Denied Nov. 20, 1986.
    726 P.2d 1362.
    Charles F. Moses, Moses Law Firm, Richard J. Carstensen, Billings, for plaintiff and appellant.
    Kenneth D. Peterson, Peterson, Schofield & Leckie, Billings, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiff R.I. Diefenderfer, Jr., appeals the March 7, 1986, order of the Thirteenth Judicial District Court awarding summary judgment in favor of defendant City of Billings. We affirm.

On January 21, 1980, the Billings City Council enacted Ordinance No. 4266, in order to reduce the burden on the special improvement district revolving fund. The ordinance required the developer to pay a 5% surcharge prior to creation of a special improvement district (SID), computed to be 5% of the total cost of the improvements.

On May 12, 1980, the Billings City Council adopted a resolution of intent to create SID No. 1116 to improve land in King Park Subdivision owned by Diefenderfer and to be developed by Gary Bennett. Bennett failed to pay the surcharge amount by the bid opening date as required, and the City halted proceedings to create SID No. 1116. At a later date, undisclosed in the record, the City authorized creation of SID No. 1116.

Diefenderfer filed a complaint July 7, 1983, alleging the City’s refusal to timely create SID No. 1116 was contrary to law. In its answer, the City responded that the city council had acted within its authority and that plaintiff had failed to perform all conditions precedent to the formation of SID No. 1116.

Following summary judgment motions by both parties, the District Court entered its order dated March 7, 1986, ruling in favor of the City. Diefenderfer appeals and raises the following issue: Whether Billings City Ordinance No. 4266 imposing a 5% surcharge on developers of raw land prior to creation of a special improvement district is valid?

The City of Billings is a municipality which has adopted a charter form of government with self-governing powers. Article XI, Section 6, of the 1972 Constitution provides in part, “A local government unit adopting a self-government charter may exercise any power not prohibited by this constitution, law, or charter.”

The Montana Code further defines the powers a self-governing unit may properly exercise. At the time of enactment of the City’s Ordinance No. 4266, there was no statutory provision authorizing or prohibiting imposition of a surcharge upon a developer prior to creation of a SID.

Diefenderfer contends that Sections 7-1-114 and 7-12-4102, MCA, prohibit such a surcharge. Section 7-1-114 provides in part:

“(1) A local government with self-government powers is subject to the following provisions:
. . (f) Any law directing or requiring a local government or any officer or employee of a local government to carry out any function or provide any service.”

Section 7-12-4102 provides:

“(1) The city or town council has power to create special improvement districts, designating the same by number; to extend the time for payment of assessments levied upon such districts for the improvements thereon for a period not exceeding 20 years; to make such assessments payable in installments; and to pay all expenses of whatever character incurred in making such improvements with special warrants or bonds . . . (Emphasis supplied.)”

Diefenderfer asserts that the scheme established by the legislature for creating special improvements districts is exclusive and the expenses of a SID may only be paid for with special improvement bonds or warrants.

The City contends that, since the statutes do not specifically address imposition of a surcharge upon a developer, the ordinance is valid under its self-governing power. Section 7-1-106, MCA, provides that “Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority.”

Montana has legislated extensively in the area of special improvement districts. However, at the time of enactment of Ordinance No. 4266 there was no statutory provision addressing such a surcharge. Both parties contend that Section 7-1-113, MCA, favors their position:

“(1) A local government with self-government powers is prohibited the exercise of any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control.
“(2) The exercise of a power is inconsistent with state law or regulation if it establishes standards or requirements which are lower or less stringent than those imposed by state law or regulation.
“(3) An area is affirmatively subjected to state control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency.”

Clearly, the ordinance does not establish standards or requirements which are less stringent than those imposed by state law. The 5% surcharge is a more stringent requirement. Nor do we find the area to be affirmatively subjected to state control. There is no state agency authorized to establish administrative rules or enforce the standards prescribed by statute.

In State ex rel. Swart v. Moliter (Mont. 1981), 38 St.Rep. 71, 621 P.2d 1100, the plaintiff challenged Madison County’s requirement of a fee for reviewing a certificate of survey prior to recording. While review was provided for by statute the fee was not. This Court held that imposition of a fee by the county, a self-governing unit, did not prescribe a lower standard than required by state law. Therefore, it was a permissible exercise of the county’s power not inconsistent with state law. 621 P.2d 1104, 38 St.Rep. 75.

Moliter is analogous to the present case. At the time of the City’s enactment of Ordinance No. 4266, state law did not address imposition of a 5% surcharge. We note that the legislature amended Sections 7-12-4169 and -4222 in 1981 to specifically authorize such a surcharge. The powers of local self-governing units are to be liberally construed pursuant to Section 7-1-106, MCA. Therefore we hold the City’s enactment of Ordinance No. 4266 was a valid exercise of its self-governing power.

The District Court is affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    JOHN DWIGHT LASAR and Barbara Lasar, Plaintiffs, v. BECHTEL POWER CORPORATION, Defendant and BECHTEL POWER CORPORATION, Third Party Plaintiff and Respondent v. E.H. OFTEDAL & SONS, INC., Third Party Defendant and Appellant.
    No. 86-319.
    Submitted on Briefs Aug. 28, 1986.
    Decided Oct. 24, 1986.
    727 P.2d 526.
    Lucas & Monaghan, Thomas M. Monaghan, Miles City, for third-party defendant and appellant.

      Moulton Law Firm, John T. Jones, Billings, Goetz, Madden & Dunn, Bozeman, for third-party plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

E.H. Oftedal & Sons, Inc. (Oftedal) appeal from a decision by the District Court of the Thirteenth Judicial District, Yellowstone County, ruling that Oftedal was not entitled to attorney’s fees under Sec. 28-3-704, MCA. We affirm.

The issue raised on appeal is whether the District Court erred in reaching the conclusion that attorney’s fees should not be awarded under the reciprocal fee statute, Section 28-3-704, MCA, in suits based on indemnity contract clauses.

Appellant Oftedal is third party defendant in a personal injury action brought by John and Barbara Lasar against Bechtel Power Corporation. John Lasar was employed by Oftedal, a subcontractor of Bechtel, hence Bechtel brought an action against Oftedal by way of a third party complaint requesting indemnification for the Lasar v. Bechtel action. Oftedal moved to dismiss the third party complaint, but that motion was denied by the District Court. An application for writ of supervisory control to this Court was also denied. Hence, Oftedal participated in the action as a third party defendant responsible for the indemnification of Bechtel.

In December, 1985, this Court decided Raisler v. Burlington Northern R. Co. (Mont. 1985), [219 Mont. 254,] 717 P.2d 535, 42 St.Rep. 1997, which held that application of Workers’ Compensation Act’s exclusive remedy provision (Section 39-71-411, MCA) as a defense against a third party’s claim for indemnity did not violate substantive due process under the state’s constitution. As this issue was central to the third party action brought by Bechtel against Oftedal, Oftedal moved the District Court for summary judgment. The motion sought to dismiss Bechtel’s third party indemnity claim and requested attorney’s fees under the reciprocal fee statute, Section 28-3-704, MCA. The District Court granted Oftedal’s motion as to the indemnity issue, but denied Oftedal’s claim against Bechtel for attorney’s fees. Oftedal appeals the District Court’s denial of attorney’s fees. We affirm the District Court’s decision.

The reciprocal attorney fee statute, Section 28-3-704, MCA states:

“Contractual right to attorney fees treated as reciprocal. Whenever, by virtue of the express contractual right or by virtue of the provisions of any contract or obligation in the nature of a contract made and entered into at any time after July 1, 1971, one party to such contract or obligation has an express right to recover attorney fees from any other party to the contract or obligation in the event the party having the right shall bring an action upon the contract or obligation, then in any action on such contract or obligation all parties to the contract or obligation shall be deemed to have the same right, to recover attorney fees and the prevailing party in any such action, whether by virtue of the express contractual right or by virtue of this section, shall be entitled to recover his reasonable attorney fees from the losing party or parties.”

Oftedal maintains that since Bechtel sought attorney’s fees in its indemnification clause in the Oftedal-Bechtel subcontract, the reciprocal attorney’s fees statute should allow Oftedal to recover the fees it incurred defending itself against Bechtel’s failed claim for indemnity. Oftedal asserts that support for the applicability of the reciprocal fee statute comes from Bechtel’s allegations, in its third party complaint, that the indemnity provision in the subcontract obligated Oftedal to pay Bechtel’s attorney’s fees for the original Lasar v. Bechtel action as well as for Bechtel’s fees in prosecuting the third party complaint against Oftedal.

Bechtel responds by reiterating the District Court’s decision holding that the attorney’s fees clause in the indemnity provision was not the type of provision intended to be protected by the reciprocal fee statute. The District Court, in its memorandum supporting its order denying Oftedal’s motion for summary judgment explained:

“ . . . indemnity and hold harmless provisions are, by their very nature, somewhat ... a one-sided proposition. The shifting of the obligation to defend or indemnify does not anticipate the raising of defenses as occasioned by a suit to recover a debt.”

The District Court was correct in determining that Oftedal was not entitled to attorney fees from Bechtel because of the third party action. The language of the indemnity provision in the BechtelOftedal subcontract does not permit this Court to reach any other conclusion. The subcontract provides:

“Indemnity: Subcontractor [Oftedal] shall indemnify, defend and hold harmless Owner and Contractor [Bechtel], . . . against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney’s fees, costs and expenses of whatsoever kind or nature whether arising before or after completion of the work hereunder and in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, by reason of any action, omission, fault or negligence of anyone acting under its direction, control or on its behalf in connection with or incident to the work performed under this subcontract. Subcontractor’s aforesaid indemnity and hold harmless agreement shall not be applicable to any liability caused by the sole action negligence of Contractor or Owner.”

The indemnification provided by this language is designed to protect Bechtel from bearing the responsibility for any wrongdoing by Oftedal. By way of its third party action, Bechtel sought to enforce the indemnification provision against Oftedal for the Lasars’ claim. But for the applicability of the Raisler decision, enforcement of the indemnification provision would have been proper. However, because Raisler precluded Bechtel’s third party action, Oftedal was not required to indemnify Bechtel against the Lasars’ claim.

The immediate action (Bechtel, third party plaintiff, vs. Oftedal, third party defendant), is not one indemnified under the language of the subcontract. The indemnification language protects Bechtel from claims made by someone other than the contracting parties. The protection is in Bechtel’s “behalf in connection with or incident to the work performed under the subcontract.” Hence, the attorney’s fees Bechtel incurred in its suit against Oftedal seeking indemnification were not within the subject matter of this contract. This in turn means that Section 28-3-704, MCA has no applicability, as there was never a requirement that Oftedal pay Bechtel’s attorney’s fees for enforcement of the indemnity agreement in the third party action.

Section 28-3-704, MCA, grants a reciprocal right to attorney’s fees when the party from whom one is requesting fees has an express right to attorney’s fees. When plaintiff in a suit for indemnity does not have an express right to attorney’s fees for that action, and no agreement otherwise exists between them, the defendant is not entitled to reciprocal attorney fees. Town Pump v. Diteman (Mont. 1981), 622 P.2d 212, 38 St.Rep. 54. This case is ruled by the decision in Town Pump.

Therefore, we affirm the District Court.

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


author: MR. JUSTICE WEBER

text:
    EDWIN R. BREMER, Claimant and Respondent, v. DONALD BUERKLE, Employer, and State Compensation Insurance Fund, Defendant and Insurer, and Intermountain Insurance Company, Defendant and Appellant.
    No. 85-353.
    Submitted Aug. 7, 1986.
    Decided Oct. 30, 1986.
    727 P.2d 529.

      Moulton, Bellingham, Longo & Mather, Brad H. Anderson, Billings, for defendant and appellant.
    Utick & Grosfield, Andrew J. Utick, Helena, Crowley Law Firm, Terry G. Spear, Billings, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Edwin Bremer suffered from allergic contact dermatitis which caused him to be disabled forcing him to quit his job as a body shop repairman. The Workers’ Compensation Court held that Mr. Bremer’s allergy was both an injury and a disease and therefore Mr. Bremer was entitled to elect his remedy under either the Workers’ Compensation Act or the Occupational Disease Act. We affirm.

The only issue in this case is, did Edwin Bremer’s allergy constitute an injury within the meaning of the Workers' Compensation Act, as well as an occupational disease within the meaning of the Occupational Disease Act, so that Mr. Bremer can elect his remedy between the two acts?

Edwin Bremer (claimant) had worked at the Baker Body Shop in Baker, Montana for approximately nine years as a “body man.” The claimant’s employment duties required him to remove dents and otherwise repair the bodies of damaged vehicles. This work exposed the claimant on a daily basis to the fumes of the chemicals in paint primer, paint, enamel reducer, lacquer thinner, body filler, body putty and rubbing compound and exposed the claimant to direct body contact with these same chemicals. On or about February 24, 1983, the claimant developed a rash and itching on the top side of his right shoulder. On March 10, 1983, the claimant first obtained medical treatment for his rash. From the time the claimant first contracted the allergy until he quit work on March 27, 1984, the claimant’s rash spread over his back to his right arm and his hands and fingers.

In February of 1983, claimant’s employer was enrolled under Compensation Plan No. 2 of the Montana Workers’ Compensation Act, the insurer being Intermountain Insurance Company (Intermountain). Intermountain remained as the employer’s insurer until August 11, 1983, after which time the employer was enrolled with the State Compensation Fund (State Fund). The State Fund accepted liability and paid benefits to claimant under the Occupational Disease Act, but has refused to accept liability under the Workers’ Compensation Act. Intermountain denies any liability under either the Workers’ Compensation Act or the Occupational Disease Act. Claimant desires to receive benefits for his allergy as an injury under the Workers’ Compensation Act. If claimant’s allergy is considered to be an injury which occurred in February 1983, then Intermountain Insurance Company is liable under Sections 39-71-101 to -2909, MCA. as it was the insurer at risk at that time. If claimant’s allergy is considered an occupational disease, then the State Fund is liable to claimant under Sections 39-72-101 to -714, MCA, as it insured claimant’s employer in March 1984 when claimant became disabled. None of the parties question the fact that Mr. Bremer’s allergy is a disease covered under the Occupational Disease Act. If claimant’s allergy is considered both an “injury” as defined in the Workers’ Compensation Act, and a “disease” as defined in the Occupational Disease Act, then claimant is entitled to make an election as to the Act under which he will claim benefits. Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 40 St.Rep. 1012.

The medical evidence was presented in two depositions of Dr. William G. Ballinger, which showed that claimant was exposed to some chemical at work to which his immune system reacted by developing antibodies. The Workers’ Compensation Court concluded that the exposure to the chemical in question occurred on or about February 17, 1983, and that on or about February 24, 1983, for reasons unknown to medical science, the claimant became allergic to the chemical (or chemicals) in question and developed allergic contact dermatitis. The claimant’s rash and itching were continuous, with varying intensity and severity, from February 24, 1983 to the trial date.

I

Did Edwin Bremer’s allergy constitute an injury within the meaning of the Workers’ Compensation Act, as well as an occupational disease within the meaning of the Occupational Disease Act, so that Mr. Bremer can elect his remedy between the two acts?

This Court has stated the general rule on several occasions that we will not substitute our judgment for that of the Workers’ Compensation Court where there is substantial evidence to support its findings of fact. See Wise v. Perkins (Mont. 1983), [202 Mont. 157,] 656 P.2d 816, 40 St.Rep. 1, and cases cited.

The Workers’ Compensation Act defines injury in Sec 39-71-119(1), MCA, which provides:

“Injury or injured defined. “Injury” or “injured” means:
“(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided in Subsection (2) of this section:”

Likewise Section 39-72-102(11), MCA, of the Occupational Disease Act defines occupational disease:

“Occupational disease” means all diseases arising out of or contracted from and in the course of employment.”

In McMahon v. The Anaconda Co. (Mont. 1984), [208 Mont. 482,] 678 P.2d 661, 41 St.Rep. 480, we held that claimant’s physical and psychological ailments, which resulted from years of exposure to noxious fumes and particulates in his work environment, were not “injuries” for purposes of the Workers’ Compensation Act. Regarding the difference between what constitutes an injury and a disease, we stated:

“Despite the detailed definition, it remains a difficult task to satisfactorily describe and define injury to the exclusion of disease. See LaPlant, Opp, Workers’ Compensation and Occupational Disease, 43 Mont. L. Rev. 75, 92-100 (1982). Professor Larson identifies two crucial points of distinction: “unexpectedness,” and “time-definiteness.” 1B A. Larson, The Law of Workmen’s Compensation Section 41.31 at 7-357. We find the second point to be the critical factor in this case. The fact that claimant’s ailments were so very gradual in onset excludes them from the definition of injury.
“[2] We hesitate to attempt to locate the line between long-term, gradual trauma or disease, and short-term, accidental trauma, exposure or strain. In Hoehne v. Granite Lumber Co. (Mont. 1980), 615 P.2d 863, 37 St.Rep. 1307, claimant was held to have an “injury”, though the onset of his carpal tunnel syndrome took place over a period of two months. However, we feel it is safe to conclude that where laryngeal and pulmonary disorders and resulting psychological impairment are occasioned by exposure to a hostile environment for a period of years, the disorders fall within the meaning of the legislatively defined term “disease.”

McMahon, 678 P.2d at 663.

Here the Workers’ Compensation judge analyzed the “unexpectedness” and “time-definiteness” factors and concluded that Mr. Bremer’s allergy was unexpected and time-definite. The findings of fact of the Workers’ Compensation Court accurately summarized the medical testimony of Dr. Ballinger:

“9. On or about February 17, 1983, the claimant was exposed to some chemical at work to which his immune system reacted from on or about February 17, 1983, to on or about February 24, 1983, by developing antibodies to the chemical in question. (Deposition cites omitted.)
“10. On or about February 24, 1983, the claimant, for reasons unknown to medical science, had developed antibodies to the chemical to which claimant was exposed to at work on or about February 17, 1983; this development (i.e., exposure followed by immune system developing antibodies) resulted in the claimant having allergic contact dermatitis and being allergic to the chemical (or chemicals) in question. (Cites omitted.)
“11. On or about February 24, 1983, the claimant was again exposed to the chemical that had on or about February 17, 1983, triggered the immunological response in the claimant that resulted in the claimant developing allergic contact dermatitis; this second exposure, caused the claimant on or about February 24, 1983, to develop a rash on the top of his right shoulder. Id.
“12. The exposure to the chemical in question that caused the claimant to develop allergic contact dermatitis occurred on or about February 17,1983; the claimant did not develop allergic contact dermatitis because of his repeated and cumulative exposure to the chemical in question for the approximately nine years prior to February 17, 1983. (Cites omitted.)
“13. The claimant’s rash and itching from on or about February 24, 1983, to the date of trial is the result of his allergic contact dermatitis; the rash and itching has been continuous, with varying intensity and severity, from February 24, 1983, to the date of trial. (Cites omitted.)
“14. The claimant’s rash and itching has persisted from on or about February 24, 1983, to the date of trial because of his repeated exposure at work to the chemical in question from on or about February 24, 1983, through March 27, 1984. (Cites omitted.)
“15. The claimant’s development of allergic contact dermatitis was unexpected; i.e., by definition, an allergic reaction to a chemical is unusual and few persons become allergic to chemicals with which they have frequently worked for many years. (Cites omitted.)

The testimony of Dr. Ballinger showed Mr. Bremer was exposed to chemical on or about February 17, 1983, which resulted in a rash which first appeared about seven days later. Thus, the “time-definiteness” factor enunciated by Professor Larson was met.

The “unexpectedness” factor identified by Professor Larson was also met. In that regard, Dr. Ballinger testified:

“Q. Now, if a person is exposed to chemical for a number of years, I believe you testified that a worker can be exposed to the same chemicals day after day for 25, 30 years’ period. But during that period, not be allergic to them.
“A. That is true.
“Q. And then for some reason, there will be one exposure which causes an allergic reaction and the allergic symptoms, the rash, this type of dermatitis will manifest itself.
“A. That one exposure somehow stimulates the immune system to set in a cascade of events that leads to what we know as allergic sensitivity.
“Q. And exposures to the same chemicals prior to that reaction did nothing.
“A. That’s correct.
“Q. ... So then to follow that out, medical science would not know what effect, if any, those previous exposures might have had to this same chemical?
“A. Well, one would have to say that previous exposures had no effect.
“Q. So it’s not a situation where it’s a gradual buildup—
“A. No. No.
“Q. — of sensitivity to a particular chemical.
“A. It’s an all or nothing type of rash, in which you either don’t react at all or you do react to varying degrees of sensitivity.
“Q. You’ve probably answered this question many times already, but I’m going to use a little different words. Mr. Bremer’s development of this what you feel is allergic reaction would not have been expected, would it” It would have been an unexpected happening.
“A. Yes.”

The evidence established that notwithstanding Mr. Bremer’s exposure to chemicals for nine years, for reasons unknown to medical science, a single exposure unexpectedly stimulated his immune system and led to the allergy. This is in contrast with Greger v. United Prestress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. In Greger the claimant had an existing allergy which was triggered by a chemical to which he was exposed in the work place. Claimant Greger’s allergic response was expected because his condition had already existed. In contrast, claimant Bremer’s reaction was not expected as he had been exposed to the same chemical for many years without any response by his system. We distinguish Greger from the present case because of the “unexpectedness” of the allergy in the present case as compared to the “expectedness” of the allergic reaction of claimant Greger. The evidence here clearly established that Mr. Bremer had met the “unexpectedness” test enunciated by Professor Larson.

We affirm the conclusion of the Workers’ Compensation Court in regard to the “unexpectedness” and “time-definiteness” factors: “The claimant’s development of allergic contact dermatitis was unexpected, i.e., it is not recognized as an inherent hazard of continued exposure to the chemicals with which the claimant routinely worked; his development of allergic contact dermatitis was not gradual, i.e., a single exposure to the chemical in question triggered the immunological response that created the antibodies, that are his allergy, no later than seven days after the signal, triggering exposure.”

Dr. Ballinger’s testimony demonstrates that a tangible happening of a traumatic nature resulted in Mr. Bremer’s contact dermatitis, thereby meeting the tests under Section 39-71-119, MCA. We hold that Mr. Bremer’s allergy constituted an injury within the meaning of the Workers’ Compensation Act, as well as an occupational disease within the meaning of the Occupational Disease Act, so that he could elect his remedy between the Acts. The judgment of the Workers’ Compensation Court is affirmed.

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