author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS LELAND CRANE, Defendant and Appellant.
    No. 89-353.
    Submitted on Briefs Nov. 2, 1989.
    Decided Dec. 12, 1989.
    784 P.2d 901.
    Russell D. Yerger, Kurt W. Kroschel & Associates, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, John Paulson and Kathy Seeley, Asst. Attys. Gen., Richard A. Simonton, Dawson County Atty., Marvin Howe, Deputy County Atty., Glendive, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Seventh Judicial District, Dawson County, Montana. The appellant, Thomas Leland Crane, was arrested on January 17, 1988, for violation of § 61-8-401, MCA, driving under the influence of alcohol, third offense, a misdemeanor. On January 19, 1988, the appellant appeared before the Glendive City Judge and pled not guilty to the charge. After numerous delays and continuances attributable to both the appellant and the State, the appellant was tried in District Court on March 3, 1989, found guilty by a jury and sentenced on April 14, 1989. The appellant now appeals his conviction, his judgment and execution of sentence being stayed pending his appeal to this Court. We affirm.

After appellant’s arrest and initial appearance in Justice Court, an information charging him with driving under the influence (DUI), third offense, was filed in the District Court on January 26, 1988. The appellant made his initial appearance with his defense attorney, Jerry D. Cook. On February 10, 1988, following an omnibus hearing before District Court Judge Dale Cox, trial was set for April 5, 1988. On April 4, 1988, Judge Cox entered an order, sua sponte, vacating the April 4, 1988 date and resetting it for April 20, 1988. On April 13, 1988, the State moved for a continuance of the April 20, 1988 trial date because the arresting officer was not available to testify until June 17, 1988. The State specifically requested that the court set the trial date after June 17, 1988 but before July 17, 1988, so the six-month statute of limitations would not be exceeded. Upon oral order of the District Court on April 27, 1988, appellant’s jury trial was set for June 28, 1988.

On June 22, 1988, the appellant, through his attorney, Mr. Cook, filed a “Motion for Continuance and Waiver of Speedy Trial.” Mr. Cook moved the court for a continuance of the June 28, 1988, trial date because he had another trial scheduled for that date. The motion further stated that “Defendant herein specifically waives any objection to speedy trial.” On June 29, 1988, the court set August 4, 1988 as appellant’s trial date.

Prior to August 4, 1988, the deputy county attorney and Mr. Cook orally agreed that the appellant would plead guilty to the charge after December 12, 1988. The agreement to allow a delayed guilty plea was designed to benefit the appellant because after December 12, 1988, more than five years would have elapsed since appellant’s first DUI conviction. The deputy county attorney and defense counsel believed this would reduce the administrative penalties the appellant faced.

The record indicates nothing further happened in the case until January 4, 1989, when the appellant filed a Substitution of Counsel, Consent and Notice substituting attorney, Russell Yerger, for Jerry Cook.

On January 11,1989, at the State’s request, the trial judge set February 3, 1989 as appellant’s date for his jury trial. The record indicates through a minute entry made on February 1, 1989, that “Due to severe weather conditions and at the request of defense counsel” the trial was vacated and continued to March 3, 1989. Prior to jury trial, which was held March 3, 1989, the appellant’s counsel filed a “Motion for Substitution of District Judge;” “Motion to Dismiss for Lack of Speedy Trial;” and moved for a continuance of the trial date until a decision on his motion to dismiss was entered and filed. Judge Roy E. Rodeghiero assumed jurisdiction on February 23, 1989, heard and denied the appellant’s motion to dismiss on March 1, 1989, and heard and denied the appellant’s renewed motion to dismiss on March 3, 1989. On March 3, 1989, the jury found the appellant guilty of the offense of DUI, a misdemeanor.

The sole issue before this Court is whether the District Court erroneously denied the appellant’s motion to dismiss for lack of speedy trial.

Appellant argues that every person accused of a crime is guaranteed the fundamental right to a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the States by virtue of the Fourteenth Amendment. State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365. This right in Montana is also secured by § 24, Art. II, of the Montana Constitution. State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851. When considering misdemeanor charges, such as the charge against the appellant here, these constitutional requirements are implemented by § 46-13-201(2), MCA, which mandates a six-month statute of limitations in which persons must be brought to trial.

It is the appellant’s position that under the terms of § 46-13-201(2), MCA, his right to a speedy trial would have expired on July 17, 1988, but for appellant’s counsel’s June 22, 1988 motion for continuance because of conflicting trial date. Appellant argues that the waiver of speedy trial date of June 22, 1988, was not specific in scope or length at the time of the waiver, and was not set forth in the motion for continuance. Appellant’s counsel did not indicate that the waiver was nothing but a waiver of a right to a speedy trial with respect to the day of the conflicting trial date. According to the appellant, his speedy trial rights evaporated on either of the following dates: December 22, 1988 (six months after the date of the appellant’s motion for continuance); or September 20, 1988 (45 days after the August 4, 1988 trial date which had been set as a result of appellant’s motion).

The respondent State argues that the appellant was not denied his right to a speedy trial under § 46-13-201(2), MCA, in that it does not apply in this case. Section 46-13-201(2), MCA, states:

“(2) The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor.”

The above section mandates dismissal of a misdemeanor charge not brought to trial within six months if the defendant has not asked for a postponement, and if the State has not shown good cause for the delay. While this Court has not specifically ruled on the applicability of this section when a defendant has asked for a postponement, the language of the statute makes it clear that the six-month limitation does not apply in this case.

In construing a statute, it is our function as an appellate court to ascertain and declare what in terms or in substance is contained in a statute and not insert what has been omitted. Dunphy v. Anaconda (1968), 151 Mont. 76, 438 P.2d 660. In State v. Ronningen (1984), 213 Mont. 358, 691 P.2d 1348, this Court stated: “But the statute is clear and the facts are clear. If the defendant requests the postponement the six-month trial deadline does not apply.” Ronningen, 691 P.2d at 1350. Here the appellant’s trial was postponed upon his own application of June 22, 1988, before the six-month time limit had expired. We find no statute which allows the six-month period to be extended after a delay has been caused by the appellant. Thus, we hold that § 46-13-201(2), MCA, has no application in the instant case.

We find the length of the delay is what triggers a speedy trial inquiry. Here there were 410 days between the appellant’s arrest and his jury trial. However, in determining whether the appellant was denied his right to a speedy trial, that period of time from the date of arrest and the length of the delay before trial are not interchangeable terms. “Length of delay refers only to the time period chargeable to the State.” State v. Wirtala (Mont. 1988), [231 Mont. 264,] 752 P.2d 177, 180, 45 St.Rep. 596, 599. In State v. Grant (1987), 227 Mont. 181, 738 P.2d 106, 109, 44 St.Rep. 994, 997, this Court noted that any delay in bringing a defendant to trial which is attributable to defendant’s own actions must be deducted from the total delay for purposes of determining whether speedy trial rights were violated. Also, “[d]elays in bringing the defendant to trial caused or consented to by defendant are considered to constitute a waiver of the right to be tried within the time fixed by statute or required by the constitution. (Citations omitted.)” State v. Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233.

hen appellant, through his counsel, moved on June 22, 1988 for a continuance of his trial date, 164 days had elapsed from the date of his arraignment. He coupled his motion for continuance with a waiver of any objection on the grounds of speedy trial. The rescheduled trial date of August 4, 1988 took the case beyond the six-month period, which was solely the responsibility of the appellant. The period from June 22 to August 4 was 43 days.

The further postponement of the trial date was 130 days, from August 4, 1988 to December 12, 1988. This delay also was caused or consented to by the appellant. He is therefore responsible for, or waived objection to, a total of 339 days of the total delay. The remaining time, consisting only of 73 days, is attributable to the State.

While the appellant argues that the 130-day delay resulted from a continuing plea bargaining process and is attributable to the State, the evidence is uncontroverted that in order to benefit his client, appellant’s attorney consented to delaying the trial until after December 12, 1988. We note that shortly after the time set in December, 1988, for the entrance of plea, the appellant obtained new counsel. On appeal, new counsel alleges that inasmuch as the agreement to delay was for his client’s benefit, this delay was not a written order nor signed by either the appellant, his counsel or the deputy county attorney, and therefore the delay should be counted against the State and not against his client. We disagree.

In State v. Dinndorf (1983), 202 Mont. 308, 658 P.2d 372, a case involving the withdrawal of a guilty plea, the county attorney agreed with the defendant not to make a sentencing recommendation. However, just before the hearing, the county attorney recommended at the sentence hearing a ten-year sentence. The district court denied the withdrawal stating there was nothing on record to support the conversations between the defense attorney and the county attorney. In that case this Court remanded the case back for resentencing noting the district court erred in not considering other factors including an oral agreement or a promise. This Court held that the district court improperly denied the motion to withdraw and remanded the case for resentencing. The same can be said in this case.

The change of defense counsel occurred after appellant had been represented by previous counsel for nearly one entire year. During that time period the county attorney’s office was, in effect, lulled into believing an agreement existed to wait until December to enter a plea. Thus, as mentioned above, it is not necessary in this case to have a written, signed agreement of the parties.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE SHEEHY,

license: Public Domain

text:
    CECIL P. MILLER, Plaintiff and Appellant, v. FALLON COUNTY, Defendant and Respondent.
    No. 89-168.
    Submitted Sept. 25, 1989.
    Decided Dec. 13, 1989.
    783 P.2d 419.
    JUSTICE SHEEHY filed dissenting opinion in which JUSTICE HUNT concurred.

      Donald W. Molloy argued, Anderson, Edwards & Molloy, Billings, for plaintiff and appellant.
    Calvin J. Stacey argued, Keefer, Roybal, Hansen, Stacey & Walen, Billings, Denzil R. Young argued, Fallon Co. Atty., Baker, for respondent.
    William L. Crowley, Boone, Karlberg & Haddon, David R. Brown, Missoula, for amicus curiae.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order by the District Court, Sixteenth Judicial District, Fallon County, Montana. The District Court granted summary, judgment in favor of defendant, concluding that plaintiff’s suit against Fallon County was barred because the county was statutorily immune from suit. Plaintiff appeals. We affirm.

The issues on appeal are:

1. Did the District Court err in granting summary judgment in favor of defendant Fallon County by determining that, pursuant to § 2-9-111, MCA, the County is immune from suit?
2. Is § 2-9-111, MCA, constitutional?

Cecil Miller was injured when his truck, an 18-wheeler, failed to negotiate a curve on a county road on November 3, 1982. Mr. Miller was an independent trucker. He and his wife were carrying a load of lumber from Townsend, Montana, to Minnesota and elected to use secondary roads since they did not possess the required permits to travel on the interstate highway. South of Baker, Montana, Mr. Miller began traveling on a two-lane graveled county road. He approached a curve known as “Russley’s Corner,” which was unsigned at that time. Mr. Miller lost control of the truck on this curve and went off the road and down an embankment.

Mr. Miller’s wife, Linda, was also injured in this accident. She previously filed suit against her husband and his alleged employer. That case was appealed to this Court and decided in Miller v. Fallon County (1986), 222 Mont. 214, 721 P.2d 342.

Cecil Miller subsequently filed suit on his own behalf against Fallon County, alleging negligence in construction, maintenance, and signing of the county road. Defendant moved for summary judgment asserting immunity as an affirmative defense. That motion was granted.

I

Did the District Court err in granting summary judgment in favor of defendant Fallon County by determining that, pursuant to § 2-9-111, MCA, the County is immune from suit?

Plaintiff’s complaint alleged that Fallon County was negligent in designing, constructing, maintaining and signing the corner where the accident occurred. Defendant Fallon County moved for summary judgment, claiming immunity. The District Court granted summary judgment in favor of defendant pursuant to § 2-9-111, MCA, which provides:

“Immunity from suit for legislative acts and omissions. (1) As used in this section:
“(a) the term ‘governmental entity’ includes the state, counties, municipalities, and school districts;
“(b) the term ‘legislative body’ includes the legislature vested with legislative power by Article V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.
“(4) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.”

The issue before this Court is whether the District Court was correct in determining that the acts or omissions in the present case fit within this statutory grant of immunity. We begin therefore by explaining the county’s system for road construction and maintenance.

Fallon County is divided into three road districts. The Fallon County Board of Commissioners (Board) is in charge of the county roads, with one commissioner assigned to each district. Mr. Delane Beach, a member of the Board, was assigned to the road district in which Mr. Miller’s accident occurred. At the time of the accident, the road foreman for this district was Mr. Harold Wiseman.

In applying § 2-9-111, MCA, to the present case, Fallon County is a “governmental entity” and the Board of Commissioners is its “legislative body.” Pursuant to Subsection (2) the County is immune from suit for an act or omission of its Board of Commissioners or a “member, officer, or agent thereof.” Therefore, on its face, the language of the statute grants immunity to Fallon County for any act or omission of its Board of Commissioners. Additionally, it grants immunity to the County for acts or omissions of Mr. Beach, a member of the Board, or for acts or omissions of agents of the Board.

In the present case, it is not disputed that the road foreman, Mr. Wiseman, was an agent of the Board.

“Agency” is defined as follows:
“Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and be subject to his control, and consent by the other so to act.”

Restatement of the Law of Agency 2d § 1 (1958). Additionally, the agency status of the road foreman is contemplated by statute. Section 7-14-2121, MCA, authorizes the Board to divide the county into road districts and place a road supervisor in charge of each district. Section 7-14-2122, MCA, delineates the road supervisor’s responsibilities, which are to be performed “[u]nder the direction and control of the board.” We conclude that Mr. Wiseman was clearly an agent of the Board. We point out that this agency status could be extended to the road crews pursuant to our recent holding in State of Montana ex rel. Eccleston v. Montana Third Judicial District Court (Mont. 1989), [240 Mont. 44,] 783 P.2d 363, 46 St.Rep. 1929, [8 Ed.Law 146G,] (custodians of school district are agents of school board for purposes of immunity under § 2-9-111, MCA). The plain language of the statute therefore extends immunity to Fallon County for acts or omissions of the Board, Mr. Beach, and Mr. Wiseman.

In its grant of summary judgment the District Court relied on this Court’s previous holdings in W.D. Const. Inc. v. Bd. of County Com’rs (1985), 218 Mont. 348, 707 P.2d 1111 (county and commissioners were immune from suit arising out of commissioners’ approval of a plat for subdivision); Barnes v. Koepke (1987), 226 Mont. 470, 736 P.2d 132 (county and commissioners were immune from suit which arose out of commissioners’ decision not to renew a hospital lease); Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218 (county and commissioners were immune from suit for commissioners’ termination of county employee). Recently, the decision of Peterson v. Great Falls School District 1 and A (Mont. 1989), [237 Mont. 376,] 773 P.2d 316, 46 St.Rep. 880, [8 Ed.Law 61,] has been issued, which follows the holdings of the previous cases. In Peterson this Court determined that the school district was immune from suit for the discharge of a custodian.

Plaintiff attempts to distinguish these cases by stating that all prior cases involved a decision by the Board, which was found to be a legislative act. He urges that the present case does not involve a decision by the Board. Plaintiff contends that the only involvement the Board of Commissioners had in the construction, maintenance, and signing of the road where the accident occurred, was the initial decision to build the road. He urges that the present case only involves acts or omissions of employees. Thus, he distinguishes the present case on a factual basis. As a legal argument, plaintiff also urges that the language of the statute only grants immunity for legislative acts, not administrative acts. He contends that the present case only involves administrative acts.

We conclude that plaintiff’s contentions fail both factually and legally. Although plaintiff contends that as a matter of fact, the only involvement by the Board of Commissioners was the decision to build the road, deposition testimony belies this contention. The deposition of the County Commissioner in charge of this road, Mr. Delane Beach, and the deposition of Mr. Harold Wiseman, demonstrate rather extensive and continuous involvement by the Board of Commissioners in road construction and maintenance.

Because factually this involvement unequivocally establishes the county’s right to claim immunity in this case, we set out this involvement in some detail. In substance this testimony established that all three commissioners determined priorities on new construction, on any major project, and on budgeting. The commissioners as a group made decisions regarding implementation of state recommendations regarding roads, bridges, etc.

In regard to new construction, Mr. Beach stated that he gave general direction to the road crews, such as directing that a road be constructed along section lines. While many details were left up to the judgment of the road foreman and road crews, Mr. Beach also participated in specific decisions regarding the width and slope of certain roads. In regard to maintenance, Mr. Beach testified that he drove all the roads in his district twice a year, identifying roads, bridges, and culverts which needed repair. This information was then given to the road foreman, along with any complaints Mr. Beach had received. He stated that he would work closely with the road foreman and the crew in deciding where repairs were needed, and that he would personally follow up to be sure the actual repairs were made. Mr. Beach stated that the road foreman was to use his judgment as to which corners required signs, and once the decision to sign was made, the sign was to be in accordance with the Traffic Control Manual.

Mr. Beach also stated that he was the individual who gave the order for the reconstruction of Russley’s Corner in the mid-1970’s. He stated that it was he who determined that the corner needed a “gentler” curve. Additionally, Mr. Wiseman’s testimony indicated that Mr. Beach was personally involved in decisions regarding the construction and maintenance of the roads. We conclude that any acts or omissions complained of in the present case were acts or omissions of the Board, its members, and its agents.

On a legal basis, plaintiff contends that only legislative acts are immune, not administrative acts. He urges that the acts complained of in the present case are administrative rather than legislative or discretionary. Plaintiff suggests the effect of granting immunity in this case is to create blanket immunity to the county. He urges this is not the intent of § 2-9-111, MCA.

In urging this distinction between legislative and administrative acts, plaintiff refers the Court to the language of the Montana Constitution, Article II, Section 18, and § 2-9-102, MCA.

Article II, Section 18, states:

“State subject to suit. The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a % vote of each house of the legislature.”

Section 2-9-102, MCA, states:

“Governmental entities liable for torts except as specifically provided by legislature. 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, § 18, of The Constitution of the State of Montana.”

Plaintiff urges that any statute granting immunity is an exception to the general rule of liability and must be narrowly construed, citing B.M. v. State (1982), 200 Mont. 58, 649 P.2d 425, [1 Ed.Law 157].

The present Montana Constitution, enacted in 1972, abolished sovereign immunity through Article II, Section 18, yet empowered the legislature to re-establish immunity by a two-thirds vote of each house. In 1977 the legislature enacted § 2-9-111, MCA, and also amended § 2-9-102, MCA, to its present form. By enacting § 2-9-111, MCA, the legislature, by its power, granted immunity to counties.

Although the statute is entitled “Immunity from suit for legislative acts and omissions,” our previous interpretations of this statute have rejected the contention that only acts or omissions which are legislative in nature are immunized. In Bieber, this Court stated,

“Bieber initially argues that the District Court incorrectly assessed the meaning of § 2-9-111, MCA, and its applicability to the Commissioners’ action. He asserts that the statute represents a narrow exception to the constitutionally mandated rule of no sovereign immunity and as such its protection is limited to purely “legislative” acts and excludes day to day “administrative” responsibilities such as the firing of a county employee.
“Appellant asks that we recognize the distinction between administrative acts which should not be protected and legislative acts which should be protected. We decline to give credence to appellant’s argument because the plain language of the statute makes no such distinction. As we have stated, this Court will not delve outside the plain meaning of the words used in a statute. See, W.D. Construction, 707 P.2d at 1113 and Barnes, 736 P.2d at 134.”

Bieber, 759 P.2d at 146, 147.

Recently, in Peterson we reiterated that “the action of the legislative body need not be legislative in nature to afford immunity.” Peterson, 773 P.2d at 318. Peterson involved the termination of a school district custodian by an administrative assistant. The discharge was ratified by the school board at a subsequent meeting. We noted that § 2-9-111, MCA, clearly extended immunity to school districts, school boards, and their agents. We also found it significant that school districts are statutorily authorized to hire and dismiss custodians pursuant to § 20-3-324(2), MCA. Thus we concluded that the immunity statute clearly applied to that situation.

The present case is analogous to Peterson, and we conclude that the holding in Peterson is controlling. As previously established, the plain language of the statute grants immunity to the county for actions of its Board, and the Board’s members and agents. This immunity is fortified in the present case since by statute the Board is assessed many statutory powers and duties in relation to the county roads. See 7-14-2101 through 2125, MCA. These statutorily mandated duties necessitate extensive involvement by the Board and its agents in decisions regarding road construction and maintenance.

We conclude that the acts or omissions complained of are acts by the Board of Commissioners, or by a member, or by its agent, for which Fallon County is immune from suit. Accordingly, we affirm the grant of summary judgment in favor of Fallon County.

II

Is § 2-9-111, MCA, constitutional?

Plaintiff contends that § 2-9-111, MCA, is unconstitutional because it denies him full legal redress, which is a fundamental right, lie urges that granting immunity to counties classifies victims of torts according to whether they are injured by the state, county, or a private party, which is a denial of equal protection. He contends that since this classification affects a fundamental right, it requires a compelling state interest. He urges there is no compelling state interest.

In Peterson we addressed this same contention, stating that the right involved was access to the courts, rather than full legal redress. Since access to the courts is not a fundamental right, Bieber, 759 P.2d at 148; Linder v. Smith (Mont. 1981), [-Mont.-,] 629 P.2d 1187, 1190, 38 St.Rep. 912, 915, the State need only show a rational relationship. As in Peterson, we reaffirm the determination that the statute at issue has previously passed the rational relationship test. We also note that this Court has recently decided that full legal redress is not a fundamental right under the Montana Constitution. See Meech v. Hillhaven West, Inc. (Mont. 1989), [238 Mont. 21,] 776 P.2d 488, 46 St.Rep. 1058. We conclude that § 2-9-111, MCA, is constitutional.

Affirmed.

CHIEF JUSTICE and JUSTICES HARRISON, BARZ and Mc-DONOUGH concur.

JUSTICE SHEEHY,

dissenting:

For the same reason I expressed in the case of Peterson v. Great Falls School Dist. No. 1 and A (1989), 237 Mont. 376, 773 P.2d 316, 319, [8 Ed.Law 61,] I dissent to the foregoing Opinion.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE SHEEHY.


author: JUSTICE McDONOUGH

text:
    In re the MARRIAGE OF JUDY K. NOVAKOVICH, Petitioner and Appellant, v. RANDY NOVAKOVICH, Respondent and Respondent.
    No. 89-250.
    Submitted on Briefs Nov. 21, 1989.
    Decided Dec, 14, 1989.
    783 P.2d 937.
    Linda L. Harris; Harris & Ventrell, Billings, for petitioner and appellant.
    A.W. Kendall, Red Lodge, for respondent and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The wife Judy K. Novakovich appeals the decree of dissolution of the Thirteenth Judicial District Court, Yellowstone County, distributing the marital estate of the wife and her husband, Randy Novakovich. We affirm. Wife raises a sole issue on appeal: Did the District Court abuse its discretion in the distribution of the marital estate because it discounted the value of the husband’s interest in a partnership known as The Bridger-Byron Cable TV Company?

The parties were married on July 23, 1977, in Thermopolis, Wyoming. They have two minor children. In the spring of 1981 the husband entered into a partnership with his brother to build and maintain a cable television system for Bridger, Montana and Byron, Wyoming. Husband and his brother are equal partners in the television system and husband’s principal occupation is to maintain the television system.

The wife filed a petition for dissolution in February 1988, and the matter was tried on October 17, 1988. Prior to the trial, the parties stipulated the resolution of the child custody and support issues. On December 6, 1988, the District Court filed its findings of fact and conclusions of law. The Court entered the Decree of Dissolution on March 1, 1989.

At the hearing, husband’s expert, a certified public accountant with considerable experience in valuing small businesses, testified that the value of The Bridger-Byron Cable TV Company based on its proven earnings history was approximately $50,700.00. The expert also applied a 35% discount to the husband’s interest in the Company on the grounds that the husband’s interest in the Company was not a controlling interest. Wife’s expert, who had bought and sold several small cable TV businesses, testified that the market value of the business was $198,000.00.

The District Court adopted the value of the wife’s expert —$198,000.00 — but applied the 35% discount rate of husband’s expert to the husband’s 50% interest. This established a value of $65,000.00 as husband’s interest in the partnership. This amount was then included in the marital estate and distributed accordingly. On appeal, the wife contends that application of the 35% discount to the husband’s interest in the business amounts to an abuse of the District Court’s discretion in evaluating the marital estate.

“In valuing the assets in a marital dissolution case, it must be noted that the District Court has broad discretion to determine net worth.” In re the Marriage of Johnston (1986), 223 Mont. 383, 387-388, 726 P.2d 322, 325. The test for reviewing such discretion is: Did the District Court, in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances? Buxbaum v. Buxbaum (1984), 214 Mont. 1, 7, 692 P.2d 411, 414.

Even though as a partner the husband could force the dissolution of the partnership and the liquidation of its assets, the District Court found that the husband’s interest in the partnership is not as valuable as a controlling interest. Because of this lack of control, the court found that the 35% discount rate was not unreasonable.

We agree. We have recognized that discounting a spouse’s interest in a business for purposes of inclusion in the marital estate is applicable to partnership interests as well as shares of stock in a corporation. See In re the Marriage of Cole (1988), [234 Mont. 352,] 763 P.2d 39, 45 St.Rep. 1965. A partner’s interest in the partnership is his share of the profits and surplus and the same is personal property. Section 35-10-503, MCA. A partner’s rights in specific partnership property is that of a co-owner with the other partners holding as tenants in partnership. Section 35-10-502(1), MCA. An individual partner’s rights in such property is generally not assignable. Section 35-10-502(2) (b), MCA. Thus even a partner with a 50% interest is unable to assign any control of the partnership:

“A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership or . . . entitle the assignee . . . to interfere in the management or administration of the partnership business or affairs . ... It merely entitles the assignee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled.”

Section 35-10-504(1), MCA. (Emphasis added.) Thus, while a partner may have management rights in the partnership, generally that partner cannot transfer such management rights. This inability of a partner to transfer management rights, regardless of the size of the partner’s interest, decreases the merchantability of even a large partnership interest. The inalienability of these management rights would make discounting appropriate in some cases, as an interest would be worth less in the hands of an assignee than in the hands of a partner.

Husband and his brother would have to dissolve the partnership for husband to realize his full share of the value of the partnership. Once dissolved and the assets liquidated, the business would be worth considerably less to the husband and the husband would be unemployed. The District Court did not abuse its discretion in discounting the husband’s interest prior to including the partnership interest in the marital estate.

AFFIRMED.

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


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HAL J. BUCKINGHAM, Defendant and Appellant.
    No. 89-315.
    Submitted on Briefs Oct. 13, 1989.
    Decided Dec. 14, 1989.
    783 P.2d 1331.

      Brad J. Arndorfer, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Curtis Bevolden, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Hal J. Buckingham, was charged in the District Court of the Thirteenth Judicial District, Yellowstone County, with felony assault pursuant to § 45-5-202(2)(b), MCA, for firing a shotgun at a car driven by Jay Popp. The jury found defendant guilty as charged. He was sentenced to five years imprisonment in the Montana State Prison and fined $500.00. The prison sentence was suspended. Defendant appeals. We affirm.

The issues before us on appeal are:

1. Was the State’s motion for leave to file an information supported by probable cause?
2. Was the defendant denied his right to a speedy trial?
3. Did the District Court err in denying defendant’s motion in limine?
4. Was the jury’s verdict supported by substantial evidence?

On the evening of February 29, 1988, Billings police officer Irvan Floth investigated a report of a firearm discharge at defendant’s home. He examined a black, 12-gauge, Winchester Defender shotgun, with a pistol-style grip, an extended magazine and a serial number of L2037954. Floth testified that this particular type of gun was a defensive weapon capable of firing up to eight rounds without reloading. Defendant testified that he was “playing with the gun” when it accidentally fired, damaging a window. Because it was an accidental discharge, no citation was issued.

Later that same evening, about 10:30 p.m., while driving to his house, the victim, Jay Popp, noticed a vehicle parked in his driveway with its lights shining on his house. As Popp approached, the other car suddenly pulled out and sped off. Popp pursued the car in a high-speed chase. Suddenly the vehicle Popp was chasing turned 90 degrees in the roadway and stopped. As Popp approached, someone from the other car shot at him. A piece of glass from the windshield hit him in the neck. The shooting continued and in his fear, Popp hid on the floor of his car, making it difficult for Popp to get a detailed description of the car or his assailant. He testified that he saw that the gun was “a large gun,” “a shotgun” and that the car “looked like some kind of a Rabbit, or small car like that,” and a “dirty” “reddish color.” He also testified that his assailant was a male. Popp was able to escape the scene by driving his car while sitting on the floor. He drove back toward his home until the car stalled as a result of damage done in the shooting. He made his way home and then reported the incident to the police.

Upon examination, the sheriff’s department determined that there was extensive damage to the left front and front end of Popp’s vehicle caused by shotgun pellets. Backtracking by following a track of radiator fluid, the deputy was able to verify Popp’s story of what had happened. There were shotgun shells and a skid mark on the road where the assailant’s car had come to a sudden stop, and glass and radiator fluid where Popp’s car was shot.

A few days later, the sheriff’s office responded to a call to pick up a shotgun which had been found in a ditch along the road in the area of the shooting. The shotgun bore the serial number L2037954, and was the same gun involved in the accidental discharge involving defendant. The gun was traced to the store that sold it. The store’s books revealed it had been sold to defendant. The Montana State Crime Lab then analyzed the shells found at the scene of the shooting and established that the shells could only have been fired from defendant’s shotgun.

The investigation disclosed that defendant owned an orange Volkswagen Rabbit. In March, about a week after the shooting incident, that car had gone over the edge of the cliffs near Billings.

An information was filed against defendant on April 29, 1988, charging him with felony assault pursuant to § 45-5-202(2) (b), MCA. On May 25, 1988, defendant filed a Motion to Dismiss alleging that the information failed to give probable cause to charge defendant with the crime of felony assault. The District Court determined that probable cause did exist and denied the motion.

Defendant was ordered to appear in court on October 6, 1988. Due to his failure to appear, a plea of not guilty was entered by the court on his behalf. Trial date was then set for December 5, 1988. On November 23, 1988, defendant moved to dismiss for lack of speedy trial due to the length of time between arrest and the date set for the entry of a plea. After defendant personally appeared with his attorney on November 29, 1988, and entered a plea of not guilty, his motion was denied.

A trial was held as scheduled and the jury found defendant guilty as charged. He then made motions to dismiss, motion for new trial or modification of verdict to not guilty. Again, the District Court denied his motions, concluding that there was substantial evidence to support the jury’s verdict.

I

Was the State’s motion for leave to file an information supported by probable cause?

Defendant contends that because this case was based on circumstantial evidence, the District Court abused its discretion in not holding a preliminary hearing, and there were not sufficient facts to justify filing the information. He maintains that he was not identified, his vehicle was not identified, and “only the fact that it was his gun used in the commission of the crime” connected him to the offense. He asserts that a preliminary hearing would have shown an unwarranted prosecution. Defendant filed a motion to dismiss on the basis that there was not probable cause to support the information.

Relying on § 46-11-201, MCA, the State maintains that the information was proper and there was no abuse of discretion.

“The county attorney may apply directly to the district court for permission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judge may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge shall grant leave to file the information, otherwise the application shall be denied.”

Section 46-11-201(1), MCA. See State v. Bradford (1984), 210 Mont. 130, 139, 683 P.2d 924, 928, 929. We agree.

The State need not demonstrate a prima facie case in the information but need only show probable cause to believe an offense has been committed. In Bradford, 683 P.2d at 929, we stated:

“Similarly, evidence to establish probable cause need not be as complete as the evidence necessary to establish guilt. (Citation omitted.) [T]he determination whether a motion to file an information is supported by probable cause is left to the sound discretion of the trial court. Thus, the scope of review is one of detecting abuse in the exercise of that discretion.”

Defendant was charged with felony assault pursuant to § 45-5-202(2)(b), MCA. A person commits that offense if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon. The facts set forth in the affidavit showed that the defendant accidentally discharged his shotgun in his home the night of the incident for which he was charged; the police were called to investigate and the serial number of his gun was reported; an hour and a half later, Popp was shot at by a male person from another car, causing considerable damage to Popp’s car; Popp described the perpetrator’s car as a dirty reddish-color, possibly a Rabbit and defendant’s car fit that description; the shotgun shells collected at the scene were determined by experts to have been fired from defendant’s gun; and defendant’s gun was discovered in a ditch near where the shooting took place. We affirm the District Court’s holding that the State’s motion for leave to file an information was supported by probable cause.

II

Was the defendant denied his right to a speedy trial?

Defendant contends that he was denied his right to a speedy trial, pointing out that 220 days elapsed from the date of his arrest to trial. He urges that a delay of 220 days gives rise to a rebuttable presumption of prejudice. He maintains that the reason for the delay was due to an oversight by the State in failing to set an arraignment date. Finally he urges that he was prejudiced by the delay due to the “faded” memories of the witnesses and the victim at the time of trial.

The State concedes that there was an oversight on its part regarding the setting of a date for arraignment. It maintains that there were 58 days chargeable to the defendant which must be deducted from the total delay. Thus, it is the State’s position that only 162 of the 220 days are chargeable to the State, which does not constitute a sufficient length of time to raise a presumption of prejudice to the defendant. It also contends that even if the 162-day delay is presumptively prejudicial, consideration of the reason for the delay and whether there was actual prejudice would excuse the delay. The reason for the delay was considered and explained at length by the District Court.

Both the Federal and State Constitutions guarantee defendant a right to a speedy trial. In determining the question of prejudice pursuant to Mont. Const., Art. II, § 24, this Court analyzes and weighs four factors. State v. Wombolt (1988), [231 Mont. 400,] 753 P.2d 330, 45 St.Rep. 714. The four factors are:

1. length of delay;
2. reason for the delay;
3. whether defendant asserted the right; and
4. whether defendant was prejudiced.

If the length of delay was not presumptively prejudicial, the other factors need not be examined. However, no single factor is determinative. See State v. Palmer (1986), 223 Mont. 25, 723 P.2d 956. As defendant asserts, there was a delay of 220 days in this case from the time of arrest to the time of trial. The length of this delay is enough to be presumptively prejudicial. State v. Waters (1987), 228 Mont. 490, 743 P.2d 617 (277 days); Palmer, 723 P.2d 956 (256 days); State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365 (214 days).

The second factor of the Wombolt test is the reason for delay. The burden is on the State to show there was a reasonable excuse for delay in bringing defendant to trial. State v. Cutner (1984), 214 Mont. 189, 692 P.2d 466. The District Court found that the reason for the delay was of significant importance in this case and stated:

“Through an oversight, the Defendant did not enter a plea in the case at bar. A delay of 154 days occurred between the time of Defendant’s arrest and the State’s filing of a motion to compel entry of plea ....
“The reason for the delay between arrest and date set for the entry of a plea (October 6, 1988), was an oversight by the State. The State and this Court assumed Defendant had entered a plea at the time the information was filed or shortly thereafter. According to the Montana Supreme Court in State v. Waters, . . . ‘The right to a speedy trial is designed to prevent oppressive tactics by the State.’ The 154 day delay, in the case at bar, was due to an oversight by the State. There is no evidence that the State engaged in bad faith or oppressive tactics, and the Defendant does not contend as much in his brief supporting his motion to dismiss for lack of speedy trial.”

We agree with the District Court that there is a lack of any evidence of oppressive tactics by the State in this case.

The third factor to consider is whether the defendant asserted his right to a speedy trial. This was done when defendant filed his motion to dismiss before the trial date. See Wombolt (1988), 753 P.2d 330.

The fourth factor to consider is whether defendant was prejudiced by the delay. The District Court concluded that the defendant was not prejudiced by the delay and that although the delay between defendant’s arrest and the State’s motion to compel entry of plea was attributable to the State, defendant caused further delay himself by failing to appear , and enter a plea. In Palmer, this Court identified the interests of a defendant which may be prejudiced by a delay. The interests are:

“(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532.”

Palmer, 723 P.2d at 959. Oppressive pretrial incarceration was not a factor in this case. Furthermore, the record is devoid of any evidence that defendant suffered from anxiety and does not support defendant’s argument that his defense was impaired. We affirm the District Court’s conclusion that defendant was not denied his right to a speedy trial.

III

Did the District Court err in denying defendant’s motion in limine?

Defendant contends the District Court erred by denying his motion in limine to exclude photographs of defendant’s car or any testimony regarding the car because Popp could not clearly identify or describe the car used in the crime. Defendant urges that Popp’s own testimony proves that he was uncertain about what type of car was used in the crime or what it looked like. Popp testified that the car was “dirty. And it was kind of reddish color. I couldn’t tell, although, it was so very dark.” Defendant points out that Popp admitted seeing a Plymouth Horizon that he thought might be the vehicle involved and called the police about it.

The State maintains that the evidence was relevant pursuant to Rule 402, M.R.Evid. It contends that the photos together with Popp’s testimony clearly tended to place defendant in the assailant’s vehicle at the time of the shooting, and was therefore relevant. We agree.

Rule 401, M.R.Evid., defines relevant evidence as:

“evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.”

In Derenberger v. Lutey (1983), 207 Mont. 1, 9, 674 P.2d 485, 489, we stated the test is:

“. . . whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable probative value is ‘any tendency to make the existence of any fact . . . more probable or less probable than it would be without the evidence.’ This standard rejects more stringent ones which call for evidence to make the fact or proposition for which it is offered more probable than any other. It is meant to allow wide admissibility of circumstantial evidence limited only by Rule 403 or other special relevancy rules in Article IV.” (Citations omitted.)

Popp described the car as he remembered it and the photographs supported his testimony. It is for the trier of fact to decide whether it is the same car or not. We hold the District Court properly denied defendant’s motion in limine.

IV

Was the jury’s verdict supported by substantial evidence?

Defendant filed a motion for a new trial or a directed verdict pursuant to § 46-16-702, MCA. The District Court denied this motion. Defendant contends that the evidence was wholly circumstantial and implies that to be enough to leave a “reasonable doubt” in the minds of the jury. He therefore maintains that he should have been acquitted.

The standard of review on issues of substantial evidence is that the conviction cannot be overturned if evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Tome (1987), 228 Mont. 398, 742 P.2d 479. The decision is within the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion. State v. Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial evidence alone is sufficient to obtain a conviction. It must only be of such a “quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt,” and all the facts and circumstances must be considered collectively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23. We hold that the evidence would allow a rational trier of fact to find the defendant guilty of felony assault beyond a reasonable doubt.

Affirmed.

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


text:
    SANDY MITCHELL, Plaintiff and Appellant, v. UNIVERSITY OF MONTANA, a branch of the Montana University System, a public entity; Its President Neal J. Bucklew; and Kay Cotton in his capacity as controller and as an individual, Defendants and Respondents.
    No. 89-373.
    Submitted on Briefs Oct. 20, 1989.
    Decided Dec. 18, 1989.
    783 P.2d 1337.
    Peter Michael Meloy, Meloy Law Firm, Helena, for plaintiff and appellant.
    John O. Mudd, Garlington, Lohn & Robinson, Missoula, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff Sandy Mitchell appeals the order of the Fourth Judicial District Court, Missoula County, granting summary judgment to the defendants University of Montana, Neal J. Bucklew, and Kay Cotton in her tort action for breach of the implied covenant of good faith and fair dealing and wrongful discharge. The District Court granted summary judgment based on the immunity provisions of § 2-9-111, MCA. We reverse the District Court and remand the case for further proceedings.

Mitchell raises the following issues on appeal:

(1) Did the District Court err in determining that the University of Montana and its employees are immune from suit under § 2-9-111, MCA?
(2) Does the legislative history of § 2-9-111, MCA, indicate an intent only to immunize legislative bodies for acts or omissions arising solely out of legislative functions?

Mitchell is a certified public accountant. She was employed by the University of Montana beginning in 1978. Prior to her termination in 1981, Mitchell worked as an accounting supervisor in the Controller’s office of the University.

Mitchell alleges the claim in this matter arose from a long time dispute between Mitchell and the University controller, defendant Cotton, beginning with his tenure as controller. She alleges that this dispute was later compounded when Mitchell competed directly with Cotton for the controllers job.

On October 9, 1981, Mitchell received a letter of termination from Cotton. She alleges that “the termination was made without just cause, without notice and without warning, verbal or written, with respect to her job performance.” (Amended Complaint, p. 2, para. IV.) Mitchell appealed her termination through the University Grievance Committee. The Committee found the termination was unwarranted and recommended to the University President and Cotton that Mitchell be reinstated.

In compliance with the recommendation, Cotton reinstated Mitchell, transferring her to a new, allegedly more difficult department. Mitchell alleges that “defendants knew that Plaintiff’s new position was fraught with potential for error, that she would make mistakes and they would have cause for consummating the termination effort which failed in 1981.” (Amended Complaint, p.2, para. V.)

On February 22, 1983, the defendants terminated Mitchell from her employment a second time. Once again she brought a grievance before the Committee, however this time the Committee found just cause for the termination. After exhausting her possible remedies under administrative grievance procedures, Mitchell filed this lawsuit on March 22, 1984.

In her amended complaint, Mitchell alleges that in “[r]elying on the representations of the Defendants that she would be treated as any other employee, in good faith . . . and not experience retaliation from the filing of her initial grievance, she accepted the difficult task of administering the new program.” (Amended Complaint, p.3, para. VI.) She contends that because of the length of her satisfactory service, her reinstatement in 1981, and periodic merit salary increases, there was an implied promise by the defendants that she would not be terminated without just cause. Thus, Mitchell alleges that in terminating her employment the defendants breached the covenant of good faith and fair dealing implied in the employment relationship.

Defendants assert that the 1983 termination was based on just cause. After a lengthy period of discovery, the defendants filed a motion for summary judgment on February 16, 1989, asserting three grounds as the basis of the motion: (1) that all the defendants are immune from suit, (2) that Montana law does not permit judicial review of routine personnel decisions of the Board of Regents and that even if those decisions are subject to review they are not subject to review by a jury, and (3) the pleadings and undisputed facts show that defendants did not breach their obligation to deal with the plaintiff in good faith. On April 27, 1989, the trial court denied the motion.

On May 12, 1989, we handed down our decision in Peterson v. Great Falls School District No. 1 and A (Mont. 1989), [237 Mont. 376,] 773 P.2d 316, 46 St.Rep. 880 [8 Ed. Law 61] The defendants renewed their motion on May 15, arguing that Peterson was dispositive of this case and granted immunity to all the defendants, The trial court granted defendants’ motion on May 23, 1989, solely on the grounds of the immunity provided by the statute. Mitchell now appeals the District Court’s May 23 order granting summary judgment, raising the aforementioned issues.

I.

The immunity question presented here can be determined from a reading of the plain language of § 2-9-111, MCA. The statute provides:

“2-9-111. Immunity from suit for legislative acts and omissions.
“(1) As used in this section: (a) the term ‘governmental entity’ includes the state, counties, municipalities, and school districts; (b) The term ‘legislative body’ includes the legislature . . . and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune from suit for damages arising, from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.
“(4) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.”

Section 2-9-111, MCA. (Emphasis added.) Defendants argued in their motion and now on appeal that the Board of Regents the controlling public body of the University of Montana, is the legislative body of the Montana University System, and that President Bucklew and Cotton are officers and agents of that legislative body. Thus defendants contend that pursuant to our decisions in Bieber v. Broadwater County (Mont. 1988), [232 Mont. 487,] 759 P.2d 145, 45 St.Rep. 1218, and Peterson, § 2-9-111, MCA, clearly grants immunity to the defendants.

We disagree. The Board of Regents is not a “local governmental entity given legislative powers by statute” and thus not a “legislative body” as contemplated by the language of subsection (1). One meaning of “local governmental entity” can be found at Article XI, Section 1 of the 1972 Constitution:

“Section 1. Definition. The term ‘local government units’ includes, but is not limited to, counties and incorporated cities and towns. Other local government units may be established by law.”

Title 7 of the Montana Code Annotated “Local Governments”, deals generally with the powers, characteristics, and operation of local government. Nowhere in this title is the Board of Regents or the university system discussed within the context of being a local government entity or unit. Rather, the Board of Regents and the Montana University System is authorized by Article X, Section 9(2) and is controlled by the provisions of Title 20, Chapter 25, MCA. The Board of Regents has authority over the six units of the Montana University System located statewide. Clearly, the Regents are not a local governmental entity as contemplated by § 2-9-111, MCA.

Respondent argues that such an interpretation of subsection (1) of the statute, defining legislative bodies as exclusively the State legislature or local governmental entities with statutory powers, changes the plain meaning of the word “includes” as written in the statute to a very different meaning: “is limited to”. We fail to see any error with this construction. If so intended, the legislature could have easily used the phrase “includes, but is not limited to” in defining governmental entities. Because the legislature chose not to use such language, we apply the familiar maxim of statutory construction: ex-pressio unius est exclusio alterius. (The expression of one thing is the exclusion of another.) Furthermore, this construction of subsection (1) is consistent with our decision in B.M. v. State (1982), 200 Mont. 58, 649 P.2d 425, 33 A.L.R.4th 1157, [1 Ed.Law 157] where we held that it is “our duty to strictly construe any attempted governmental immunity — that is, every act expanding statutory immunity must be clearly expressed.” B.M., 649 P.2d at 427.

II.

In light of our holding above, we need not discuss the second issue raised by Mitchell on appeal. The Board of Regents is not a local governmental entity, thus no immunity is afforded by the statute in this case.

Reversed and remanded for further proceedings consistent with this opinion.

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


text:
    ANDREW KRUEGER and Suzanne Krueger, Plaintiffs and Respondents, v. GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant and Appellant.
    No. 89-024.
    Submitted Oct. 16, 1989.
    Decided Dec. 18, 1989.
    783 P.2d 1340.

      Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Richard A. Bowman argued, Kent B. Hanson and Kim M. Schmid, Bowman & Brooke, Minneapolis, Minn., for defendant and appellant.
    Dennis Patrick Conner argued, Great Falls, Erik B. Thueson, Helena, for plaintiffs and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a jury verdict and judgment of the Eighth Judicial District, Cascade County, awarding general and special compensatory damages in a products liability case. Defendant General Motors Corporation [GM] appeals an award of the District Court of the Eighth Judicial District, Cascade County awarding the plaintiff Andrew Krueger (Krueger) damages in the sum of $1,293,430.00. The District Court found that GM’s failure to warn regarding a defectively designed full-time four wheel drive transfer case was the proximate cause of plaintiffs injuries. We affirm.

GM raises the following issues and specifications of error on appeal:

1) Did the District Court err in excluding evidence of videotaped tests conducted by the defendant’s expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question?
2) Did the District Court err in admitting evidence of other incidents involving the sudden rolling of vehicles equipped with the New Process Model 203 transfer case?
3) Did the District Court err in excluding evidence of plaintiffs prior drug convictions and alleged habitual drug use on the issue of plaintiffs life expectancy?
4) Did the District Court err in instructing the jury regarding the affirmative defense of assumption of the risk in products liability litigation?
5) Is there substantial evidence in the record to support the District Court’s finding that GM’s failure to warn was a proximate cause of Andrew Krueger’s injuries?
6) Did the District Court err in admitting into evidence hearsay testimony and allowing plaintiffs arguments alleged by defendant to be based on hearsay statements?
7) Did the District Court err in overruling defendants objections to plaintiffs closing arguments requesting the jury to “send a message” to GM when punitive damages were not an issue in the case?

On February 17, 1983 Krueger experienced problems with the universal joint on the front drive shaft of a 1976 General Motors Chevrolet full-time four wheel drive pickup that he had borrowed from a friend. He drove the pickup to the Pit Stop, an auto repair shop in Great Falls owned by a friend, where he planned to remove the shaft and leave it for repairs.

Krueger parked the truck on the sloping driveway outside the Pit Stop (approximately 5Yz degrees) and with the vehicle engaged in park proceeded to remove the front drive shaft. When Krueger disconnected the shaft the pickup began to roll down the slope of the driveway. The back of Krueger’s head got caught in the front differential and was pulled forward on to his chest as the truck rolled over him. The accident broke Krueger’s neck and severely damaged his spinal cord, rendering Krueger a quadriplegic.

Prior to 1973, all GM four wheel drive vehicles were equipped with conventional transfer cases; with such transfer cases the rear drive shaft remains locked when the vehicle is in “park.” This is necessary because with a conventional transfer case disengaged and the wheel hubs unlocked, as they normally would be on dry pavement, the vehide is essentially a two wheel drive vehide and would roll unless the rear drive shaft was locked.

The pickup involved in this accident was equipped with a New Process Model 203 full-time four wheel drive transfer case, used in GM models with automatic transmissions from the years 1973 to 1979. On these vehicles, the “park” gear locks the power output shaft leading from the engine to the transfer case, to which the front and rear drive shafts are then connected.

Because of cornering problems where the outer wheel must rotate faster than the wheels on the inside of the corner, a differential is needed to compensate for these two different rotation speeds. A differential makes this compensation by applying the engine’s driving force through the path of least resistance. In a full-time four wheel drive vehicle, a third inter-axial differential, located in the transfer case, is needed to compensate for the difference in cornering speeds between the front end rear wheels. When either of the drive shafts is disconnected on a full-time four wheel drive, this inter-axial differential applies the locking force of the “park” gear through the path of least resistance to the drive shaft that is no longer connected, this allows all the vehicle’s wheels, including those on the still connected axle and drive shaft, to roll freely. Thus, a vehicle equipped with a New Process Model 203 transfer case and engaged in “park” will begin to roll when a single drive shaft is removed or a single wheel is jacked off the ground. The only way to prevent this motion is to first engage the vehicle in “park” and then in four wheel drive “lock.” Engaging “lock” on a full-time four wheel drive is similar to engaging the transfer case and locking the hubs on a conventional four wheel drive. It locks all wheels so they will turn at the same speed regardless of cornering distances, eliminating the function of the differential, and thus no one portion of the drive train can become a path of least resistance.

As one can see, there is a great difference in the effect of putting a full-time versus a conventional four wheel drive pickup in park when the front drive shaft is disconnected. In the conventional models, “park” locked the rear drive shaft and that is all that had to be done. But in a vehicle equipped with the New Process Model 203 one had to place the transmission in “park” and also engage the transfer case in “lock,” locking all four wheels and insuring that the vehicle was completely immobilized.

During his service in the military, Krueger gained considerable experience and knowledge regarding the operation and repair of conventional four wheel drive vehicles. Krueger had also been employed as a drive line specialist for Glacier Motors in Cut Bank, Montana. During that time he built and repaired approximately 500 drive lines. Krueger’s knowledge or lack thereof of the dangers in removing the front drive shaft on a full-time four wheel drive equipped with the New Process Model 203 and whether GM provided a reasonably safe transfer case design and/or a warning sufficient to avoid strict products liability were focal issues at trial.

During trial, plaintiff advocated an alternative transfer case design, the Borg Warner Quadra Trac (used in Jeeps at the time), asserting that it would have prevented the accident. The Quadra Trac employs a limited-slip friction clutch in the transfer case to retain the traction that would be lost when all the power is transferred via the differential to the wheel experiencing the least resistance. The friction clutch requires an individual wheel or axle to experience a threshold amount of torque for the clutch to slip and allow the differential to work freely. Until the threshold level of torque is reached, such as when the inside wheel experiences resistance when cornering, both wheels will revolve at the same speed. Thus, when a single wheel is the only one powered, such as when one wheel spins out on ice or snow, the friction clutch provides a limited traction recovery to the other wheel until the spinning wheel regains its traction. A vehicle equipped with the New Process 203, on the other hand, would be unable to generate any traction and remain immobile. Friction clutches wear out quickly and are rarely maintained at the torque specifications level present when manufactured.

Krueger argued that a properly maintained Borg Warner Quadra Trac transfer case would have prevented the accident because the friction clutch in the transfer case differential would have engaged the park gear to the rear drive shaft once the vehicle began to roll. Plaintiff contended that this would have either held the vehicle on the slope or, if the clutch was worn, slowed its rolling enough to provide Krueger enough time to get clear of the vehicle. GM argued that even a Borg Warner Quadra Trac transfer case at specifications would not have held the vehicle on the accident slope.

I.

We now address the first issue raised by GM: Did the District Court err in excluding evidence of videotaped tests conducted by the defendant’s expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? In its brief, GM argues that copies of the videotapes were given to the plaintiff prior to trial, and thus do not raise a discovery compliance issue. At the deposition of defendant’s expert, Richard Keefer, approximately two weeks prior to trial, GM assured Krueger’s attorney, Mr. Dennis Conner, that any such videotapes would be disclosed prior to trial:

“Q (BY MR. CONNER) Well, what pending assignments do you have?
“A Pending assignments?
“Q Right.
“A I don’t believe I have any specific pending assignments .... if refinements to the preliminary work we’ve done on evaluating various kinds of vehicles, full-time and/or part time and the rollaway situation, are requested, why, I expect we’ll do it. And if it’s requested that they are reported in some way, why, we certainly have the capability to do that.
“MR. CONNER: Well, if he’s going to do any further work prior to the time of trial, I’d like such documents or records that are generated which are discoverable to be certainly produced pripr to trial, as well as having the opportunity to further depose him —
“MR. HANSON: Well, if you’re agreeing, then —
“MR. CONNER: — on that subject.
“MR. HANSON: — when you have your witnesses do all the work they haven’t yet done that you’re going to reproduce them for depositions, fine. Tamny hadn’t done jack squat when he got under oath. And we’re not going to agree to any kind of conditions on our people, redeposing them, that isn’t going to apply to you, certainly.
“We will certainly show you whatever exhibits are generated, and we will inform you of anything you’re entitled to know about the basis or grounds for his opinions. Whether I’m going to bring Mr. Keefer back and have you depose him again, I highly doubt it, just as I highly doubt that you’re going to give me a meaningful opportunity to learn what Tamny’s done since the time of his deposition.” Keefer Deposition, pp. 123-125. (Emphasis added.) Mr. Keefer was deposed on July 12,1988. Prior to the deposition he conducted tests of various four wheel drive vehicles to determine if they would roll on a slope equal to the accident slope when the driveline was removed. During these tests he determined that a 1977 Jeep equipped with a Borg Warner Quadra Trac transfer case would not roll on the test slope. Keefer Deposition, p. 139. On July 21 and 22 he conducted further tests, recording them on videotape. GM alleges that this new evidence would demonstrate that virtually any vehicle, including a Jeep with Quadra Trac, would respond as the accident vehicle did under the circumstances. The trial began on July 25, 1988, three days after the final testing. The existence and content of the videotapes was not disclosed to plaintiff until mid-trial, after the plaintiff had rested on August 3, 1988.

In this regard, the facts of this case are similar to those in Workman v. McIntyre (1980), 190 Mont. 5, 617 P.2d 1281, where we held that admission of an undisclosed film exhibit was an abuse of discretion. The film was not made available to the plaintiff after assurances by the State that it would be. We held that:

“These tactics are contrary to the letter and spirit of all pretrial discovery which is to prevent surprise, to simplify the issues, and to permit counsel to prepare their case for trial on the basis of the pretrial order.”

Workman, 617 P.2d at 1285. It is clear from the record in this case that GM assured the plaintiff that any further exhibits generated by their expert would be disclosed prior to trial and that GM failed to do so. The District Court did not abuse its discretion in excluding the videotape evidence.

GM’s expert was also precluded from testifying regarding the tests conducted in the excluded videotapes, and regarding current model full-time four wheel drive designs. The trial judge ruled that: “Well that’s part of the experiment and that’s subsequent to the close of discovery. And its also a possibility of interjecting subsequent designs. So our court is clear on that that those are not permissible.”

Transcript, August 8, 1988, p. 1996,

We agree. In a strict liability action under a design defect theory, the question is whether the design specifications were partly or totally defective. Rix v. General Motors Corp. (1986), 222 Mont. 318, 330, 723 P.2d 195, 202. Design specifications are “judged not by the condition of the product, but the state of scientific and technological knowledge available to the designer at the time the product was placed on the market.” Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 62, 673 P.2d 1208, 1221. (Emphasis added.) In Rix, we set forth the following elements for instructional purposes in an alternative design products liability case:

“. . . (3) In determining whether an alternative design should have been used, the jury should balance so many of the following factors as it finds to be pertinent at the time of manufacture:
“(a) The reasonable probability that the product as originally designed would cause serious harm to the claimant.
“(b) Consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design.
“(c) The technological feasibility of an alternative design that would have prevented claimant’s harm.”

Rix, 723 P.2d at 201. (Emphasis added.) Thus, the only test evidence admissible in this case would be test evidence concerning other designs available at the time the New Process 203 transfer case was placed on the market, such as the Borg Warner Quadra Trac, or conventional transfer cases. The record indicates that all the evidence excluded by the District Court was either associated with the inadmissible videotape tests, or involved subsequent designs used in the automobile industry, particularly the designs used in current model full-time four wheel drive passenger vehicles. We reiterate the rule as we did in Rix:

“. . . a design is defective if at the time of manufacture an alternative designed product would have been safer than the original designed product and was both technologically feasible and a marketable reality. Again the time frame under scrutiny is the time of manufacture and not any other time.”

Rix, 723 P.2d at 202. (Emphasis added.) The District Court did not abuse its discretion in excluding evidence concerning the late test results and evidence of designs not pertinent to the time of manufacture.

II.

Regarding the second issue raised by GM, the test of admissibility for evidence of other accidents in a products liability case is “whether the circumstances surrounding the product involved in other accidents were substantially the same or similar to the accident at issue.” Kuiper, 673 P.2d at 1219. The accidents need not be identical to be admissible. Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613 P.2d 982, 986.

Here, the other accidents all involved the New Process Model 203 transfer case and its inherent design characteristics which cause it to roll when a single wheel is jacked up or a single drive shaft removed. Although one incident involved a Chrysler vehicle, that vehicle was equipped with the same 203 transfer case used by GM. Also, the incident involving removal of the rear drive shaft demonstrates the same roll-away characteristics at issue in this case that distinguish the New Process 203 from a conventional transfer case or one equipped with a limited slip differential.

The admission of evidence of other accidents in products liability litigation is entrusted to the discretion of the trial judge. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 9, 713 P.2d 527, 532. We do not see any abuse of discretion in this case.

III.

As its third issue GM argues that the District Court erred in excluding evidence of Krueger’s alleged habitual drug use on the issues of plaintiffs life expectancy and assumption of the risk. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, M.R.Evid. Here, the evidence is speculative at best, and, if it bears any relevance at all to this case, the evidence is of such a highly prejudicial nature in comparison to its probative value that its admission could constitute error.

Under Rule 403, the determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Zeke’s Distributing Co. v. Brown-Forman Corp. (Mont. 1989), [239 Mont. 272,] 779 P.2d 908, 911, 46 St.Rep. 1678, 1681; Dahlin v. Holmquist (1988), [235 Mont.17,] 766 P.2d 239, 241, 45 St.Rep. 2127, 2129-2130. The exclusion of the drug evidence in this case was a sound exercise of discretion by the trial judge.

IV.

Pertaining to issue IV, at trial, the District Court gave the following instruction, in addition to the pattern instruction (Instruction No. 23), on the affirmative defense of assumption of the risk;

“The Defendant has the burden of proving that Andy Krueger assumed the risk of his injuries. To establish this defense, General Motors must prove:
“(1) That Andy Krueger actually knew before he was injured that the vehicle would roll if he disconnected the front driveline;
“(2) That knowing this, Krueger voluntarily exposed himself to the danger, and
“(3) That Krueger unreasonably exposed himself to that danger.
“If the Defendant fails to prove all three of the above, then Andy Krueger did not assume the risk of his injuries.”

Instruction No. 201 GM argues that the instruction erroneously requires that Krueger knew the truck would roll on him and render him a quadriplegic before he attempted to disconnect the front driveline, the absurd equivalent of requiring that he have a death wish.

With regard to the affirmative defense of assumption of the risk in products liability, Montana has adopted the position of the Restatement of Torts 2d, § 402A, Comment (n):

“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

Brown v. North Am. Mfg. Co. (1977), 176 Mont. 98, 110, 576 P.2d 711, 719. Assumption of the risk is now apportioned in a manner similar to fault under a comparative negligence scheme. Zahrte v. Sturm, Ruger & Co., Inc. (1983), 203 Mont. 90, 94, 661 P.2d 17, 19.

The standard applied in evaluating the defense is a subjective one rather than the objective standard of the reasonable man test:

“The standard to be applied is a subjective one, of what the particular plaintiff sees, knows, understands and appreciates. If this it differs from the objective standard which is applied to contributory negligence .... If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may be found that his conduct is contributory negligence because it does not conform to the community standard of the reasonable man.”

Brown, 576 P.2d at 719, quoting Restatement of Torts 2d, § 496D, Comment (c). In order for GM to assert the defense, Krueger must have had subjective or actual knowledge that the truck would roll. This does not require that he have knowledge of the severity of the injuries he would suffer. GM admitted that Krueger would have never attempted to complete the repairs in the manner he chose if he knew that the vehicle would begin to roll when he disconnected the drive shaft.

GM asserts that Instruction 20 is tantamount to an abolition of the defense of assumption of the risk in products liability. We disagree. The instruction merely required that the plaintiff have actual knowledge of the danger and then specifically stated what actual knowledge of the danger entails under the facts of this case. It was obvious to the jury under these facts that Krueger lacked such knowledge. In other cases it may be equally obvious that a plaintiff has subjective knowledge of the actual danger posed by a defect. In such cases, a jury could then evaluate the extent to which that plaintiff assumed the risk of his injuries.

It is reversible error to refuse to instruct on an important part of a party’s theory of the case. Furthermore, a party has a right to have jury instructions which are adaptable to his theory of the case. Tacke, 713 P.2d at 534. Although we believe that Montana Pattern Instruction 7.05, taken directly from Zahrte, would have been a sufficient, comprehendable and accurate statement of the law in this case, we find no error on the part of the trial judge in giving Instruction No. 20 as a complementary instruction under the facts of this case.

V.

We now turn to the issue of sufficiency of the evidence, (Issue V), to support the District Court’s denial of GM’s motions for directed verdict and new trial.

When reviewing a jury verdict, this Court’s function is to determine if there is substantial credible evidence in the record supporting the jury’s verdict. Gunning v. General Motors Corp. (Mont. 1989), [239 Mont. 104,] 779 P.2d 64, 66, 46 St.Rep. 1546, 1548, Weinberg v. Farmers State Bank of Worden (1988), [231 Mont. 10,] 752 P.2d 719, 721-722, 45 St.Rep. 391, 392. Where there is substantial evidence to support the jury’s verdict the District Court’s refusal to grant a new trial will not be disturbed. Brothers v. Town of Virginia City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467. When reviewing a denial of a motion for directed verdict, we concede as true all of plaintiff’s evidence and give the plaintiff the benefit of all legitimate inferences. If the record at that point should contain substantial evidence sustaining the jury finding then the trial court’s action in denying the motion for directed verdict and submitting the cause to the jury, and the jury verdict itself, must be sustained. Brothers, 558 P.2d at 467.

In the case at bar there is substantial credible evidence supporting the jury’s verdict and the District Court’s denial of GM’s motions for directed verdict and new trial. This evidence supports the finding that GM’s failure to warn concerning the inherent design characteristics of the New Process Model 203 transfer case — characteristics causing vehicles equipped with it to roll under circumstances that vehicles equipped with conventional transfer cases would not — was the proximate cause of Krueger’s injuries. Krueger’s testimony and the testimony of the other accident victims tended to prove the same thing: the accident victims all believed that a vehicle equipped with the New Process Model 203 transfer case would behave like a conventional four wheel drive when a driveline was removed or a wheel jacked up; they all testified that had they known otherwise they would never have attempted the repairs in the manner they did. Furthermore, evidence was presented regarding the Borg Warner Quadra Trac transfer case that enabled the jury to balance the transfer case design chosen by GM against the feasibility and marketability of alternative designs.

A manufacturer may be required to provide a warning in relation to its product if it is to avoid a determination that the product is unreasonably dangerous. Restatement of Torts 2d § 402A, Comment (j) at 353 (1965). The product is automatically defective if it is unreasonably dangerous, and a warning is required but not given. Rost v. C.F.&I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. It is the manufacturer’s duty to warn inadequately informed users about the risk of danger involved with the use of a product. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445.

The only alleged warning given by GM is contained in a sticker that was located on the driver’s sunvisor in the accident vehicle and all vehicles equipped with the New Process 203 transfer case. Plaintiff’s Exhibit 199. This sticker merely consists of operating instructions for full-time four wheel drive in the unlocked and locked positions of the transfer case, it does not warn of any of the dangers or differences from conventional transfer cases when repairs are attempted with the transfer case and interaxial differential unlocked.

GM contends that because of Krueger’s training in motor vehicle repair and the precautions associated with it, (such as using the parking brake, wheel chocks, and generally avoiding repairs on a slope), it is clear that any warning given “would have fallen on deaf ears.” Rost, 616 P.2d at 386-387. In this regard, GM argues that the jury was entitled to hear evidence regarding plaintiffs propensity toward carelessness in the face of information available to him, including evidence of plaintiffs alleged use of dangerous drugs.

We have already discussed the admissibility of the alleged drug evidence and do not believe the subject merits further discussion. Furthermore, the “deaf ears” situation in Rost is distinguishable from the case at bar. In Rost, a warning by the manufacturer of elevator cables was excused because the owner of the premises where the plaintiff was injured had a duty to maintain and inspect the elevator and would have failed to do so regardless of a warning of the obvious fact that worn elevator cables pose a serious danger. In fact, the store owner in Rost had been involved in a prior accident in the same elevator when the cables broke. Here, there is no superseding cause excusing GM’s failure to warn. Thus, the jury was entitled to find that GM’s failure to warn was the proximate cause of Krueger’s injuries.

VI.

We now come to Issue VI concerning the admission of hearsay statements and arguments based on such statements. GM objects to the admission of the hearsay testimony of an alleged GM master technician as given by Krueger’s expert Simon Tamny. Mr. Tamny testified regarding a conversation that he had with the technician about a similar accident the technician had involving a 203 transfer case.

An expert may base an opinion on facts or data perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence. Rule 703, M.R.Evid. See e.g. Azure v. City of Billings (1979), 182 Mont. 234, 255, 596 P.2d 460, 472, State v. Deshner (1971), 158 Mont. 188, 193-194, 489 P.2d 1290, 1293-1294. At trial, plaintiff qualified Mr. Tamny as an expert in transfer case design. Field investigations of user experience is an appropriate method for such an expert to form opinions as to whether a particular transfer case design is an effective design or is dangerous. Mr. Tamny synthesized the technician’s accident with other incidents involving the New Process 203 in arriving at his opinion that the transfer case was defective and a warning should have been provided. See Azure, 596 P.2d at 472. The District Court did not abuse its discretion in allowing plaintiff’s expert to testify concerning one of the bases upon which he formed his opinion.

GM’s expert Paul Johnson testified that the torque specifications of the limited slip differential in the alternative design transfer case advocated by Krueger were not sufficient to hold the vehicle in place on the accident slope. During cross examination of the witness, Krueger’s counsel referred to a hypothetical phone call where a Borg Warner employee had confirmed that the specifications were indeed the ones given in the testimony of Krueger’s expert, and thus would have immobilized the accident vehicle or at least sufficiently slowed its rolling to allow the plaintiff to get clear of the vehicle. Krueger’s counsel challenged GM’s expert to call Borg Warner during a recess and confirm the torque specifications of the alternative transfer case design.

The District Court sustained GM’s initial objection to this questioning, then allowed Krueger’s counsel to inquire after the recess whether Mr. Johnson had made the phone call. At closing argument, Krueger’s counsel commented on Mr. Johnson’s failure to accept counsel’s challenge to call Borg Warner regarding the specifications.

The situation here is similar to that in Gunnels v. Hoyt (Mont. 1981), [_Mont.__,] 633 P.2d 1187, 38 St.Rep. 1492, where we held that the plaintiff was not prejudiced by several instances of alleged misconduct by defense counsel, the most serious being that defense counsel made improper comments upon and references to excluded evidence, which indicated to the jury that the plaintiff was concealing evidence. Improper argument requires a reversal of a verdict only when prejudice has resulted which prevents a fair trial. Gunnels, 633 P.2d at 1194; Nelson v. Hartman (1982), 199 Mont. 295, 301, 648 P.2d 1176, 1179. Any prejudice suffered by the defendant here was minimal, and certainly did not rise to such level as to deprive GM of a fair trial.

VII.

Finally, GM contends that the District Court erred in overruling GM’s objections to Krueger’s closing argument requesting the jury to “send a message to GM” when punitive damages were not an issue.

We decline in this case to determine whether the “send a message” argument is proper or prejudicial in products liability litigation where punitive damages are not an issue. As we stated earlier, improper argument requires reversal of a verdict only when prejudice has resulted that prevents a fair trial. Gunnels, supra, 633 P.2d at 1194; Nelson, supra, 648 P.2d at 1179. Considering the severity and permanent nature of plaintiff’s injuries, and the daily attendant care he will require for the remainder of his life, we see the amount of the the jury’s verdict as compensation for the plaintiff’s injuries and not merely a reflection of alleged inflammatory remarks made during the plaintiff’s closing arguments.

We conclude that there was no abuse of discretion by the District Court in denying General Motor’s motions for directed verdict and new trial.

AFFIRMED.

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