author: MR. JUSTICE McDONOUGH

text:
    MARK TOWNSEND, Individually as Guardian of Wayne Townsend, a minor, Plaintiffs and Respondents, v. STATE OF MONTANA, Defendant and Appellant.
    No. 86-446.
    Submitted on Briefs April 30, 1987.
    Decided June 17, 1987.
    738 P.2d 1274.
    Poore, Roth & Robinson, J. Richard Orizotti, Butte, for defendant and appellant.
    Michael McKeon, Anaconda, for plaintiffs and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The State of Montana appeals the May 28, 1986, order of the District Court of the Second Judicial District granting plaintiff, Mark Townsend’s motion for a new trial. We reverse.

On June 4, 1983, nine-and-a-half year old Wayne Townsend was injured when his bicycle hit a pothole on Saddle Rock Road. Saddle Rock Road is a 1.9 mile long black-top road, owned and maintained by the State of Montana. The road is located in the Butte Section of the Butte Division of the Montana Department of Highways. Pat Kane was the Field Maintenance Chief at the time of the accident. Bill Steyh was the Field Maintenance Supervisor (section man) in charge of the Butte Section. Both individuals testified at trial that while traveling Saddle Rock Road in May of 1983, they noticed potholes starting to form at the site of Wayne’s accident. Neither man thought, in view of the limited use of the road, that the forming potholes constituted an immediate danger to the public. Therefore, repair of the potholes was not immediately ordered. The potholes were not filled until September of 1983, three months after the accident.

The deposition of Don Gruel, Administrator of the Maintenance and Equipment Division of the Montana Department of Highways, was read at trial. Gruel was questioned extensively about a 1965 statute requiring the Department to develop rules for the construction, repair, maintenance and marking of state highways and bridges, Section 60-2-201(4), MCA. Gruel stated that he did not believe the Department had responded to that mandate. He stated further that although the Montana Department of Highways Maintenance Manual was probably the closest thing to rules the Department had in 1983, it was not developed in response to Section 60-2-201(4), MCA. Rather, the manual was developed in 1973 at Gruel’s instigation to provide guidelines for Department employees statewide.

The jury was instructed that the Department was required by law to adopt rules for the construction, repair, maintenance, and marking of state highways and bridges and that the Maintenance Manual “was adopted as required by law.” Although the State objected to the instruction at trial, neither party objects to this characterization of the manual on appeal. We therefore find for purposes of this appeal only that the Maintenance Manual contains the statutorily-mandated rules.

The manual and its purpose are important to this appeal because it contains the following:

“4. MAINTENANCE OF BITUMINOUS SURFACE
“4.10 GENERAL DESCRIPTION
“The early detection and repair of minor blemishes is the most important phase of maintenance work. Cracks and other surface breaks which are almost unnoticeable in their early stages, may develop into major repair jobs ... if unattended. Such breaks can occur even in a few days where traffic is heavy. For this reason, close inspection of the pavement by competent and experienced personnel is absolutely necessary.
“4.60 PATCHING POT HOLES
“This type of failure should have immediate attention. Pot holes or chuck holes are dangerous to traffic, increase rapidly in size and are excellent for feeding water into the base and subgrade.”

Maintenance Manual, pp. 4-1 and 4-6.

Testimony was received regarding the extent employees were expected to comply with the Maintenance Manual. Pat Kane, Field Maintenance Chief, repeatedly emphasized the discretionary nature of the “guidelines” contained therein. However, plaintiff’s attorney would then attempt to impeach Kane with remarks made at his deposition indicating that adherence to the manual was necessary to insure proper work performance. Bill Steyh, section man for the Butte Section, testified that he referred to the manual as a guideline to be followed whenever possible and that “it was not good practice to not go by the book.”

Pat Kane and Bill Steyh testified about the maintenance work performed on Saddle Rock Road over the years. Written documentation indicated that the last major repair of the area prior to Wayne’s accident occurred September 4, 1981, when a blade patch approximately .3 miles long was laid. Both individuals testified that many potholes were hand patched between the September 1981 and September 1983 work; however, they did not remember whether any of the patches were made in the area of the accident. Their diaries indicated hand patching had occurred, but did not specify where.

Following the close of three days of testimony, the jury returned a verdict finding that the State of Montana was not negligent. Plaintiff moved for a new trial April 21, 1986. The memorandum and order granting plaintiff’s motion was issued May 28, 1986. In it, the trial judge stated:

“[T]he evidence it received during the course of this trial has established overwhelmingly and conclusively that the State of Montana, through its Department of Highways, was negligent for failing to maintain Saddle Rock Road in a reasonably safe condition. When the State’s employees admit that to violate its maintenance manual is bad practice on their part and then have evidence showing repeated violations of that maintenance manual, there has been established, in this court’s opinion, negligence as a matter of law.”

The State of Montana raises three issues in its appeal of the order granting Townsend a new trial.

1. Was there substantial evidence to support the jury’s verdict that the State of Montana was not negligent?

2. Did the District Court abuse its discretion in ordering a new trial and also holding that the State of Montana was negligent as a matter of law?

3. Did the District Court err in refusing to allow certain testimony relating to the factors considered by the State of Montana, Department of Highways in maintaining roadways, including Saddle Rock Road?

Our resolution of the first two issues renders consideration of issue number three unnecessary.

The first and second issues are intertwined. The parties are in agreement that highway employees were aware of the potholes approximately one month before Wayne’s accident. They also agree that the potholes were repaired approximately four months after they were first noticed. The real question is whether the State’s failure to immediately repair these potholes was in violation of its duty to exercise ordinary and reasonable care in maintaining Montana’s roads and highways.

The jury found no violation of the reasonable care expected. The trial judge disagreed and granted Townsend’s motion for a new trial. As support for his decision, the trial judge found that because the State’s employees admitted violation of their Maintenance Manual was bad practice and because there was evidence of repeated violations of that manual, negligence existed as a matter of law. The State argues, and we agree, that this conclusion is in violation of Cash v. Otis Elevator Co., et al. (Mont. 1984), [210 Mont. 319,] 684 P.2d 1041, 41 St.Rep. 1077.

In Cash, we held that violations of administrative codes not incorporated into a statute by reference are evidence of negligence, but not negligence per se. Likewise, the admitted violations of the Maintenance Manual provided evidence of negligence. The State then had the burden of producing other evidence to show it had exercised due care in maintaining Saddle Rock Road. Apparently, in the jury’s mind at least, the State succeeded in meeting this burden.

We find that the trial judge erred in concluding that the conduct of the State’s employees was negligent as a matter of law. The trial judge relied upon this erroneous principle of law in granting a new trial. Applying the correct standard of negligence to this case there is substantial credible evidence to Townsend, support the jury verdict.

If there is substantial credible evidence to support the jury’s verdict, the verdict should stand. Maykuth v. Eaton (Mont. 1984), [212 Mont. 370,] 687 P.2d 726, 727, 41 St.Rep. 1800, 1802.

Pat Kane and Bill Steyh testified that the potholes were just forming and only V2 to % inches deep when first observed in May of 1983. Phil Krisk, the individual who ultimately patched the potholes, testified that they were three inches deep in September, three months after Wayne Townsend’s accident. Mark Townsend testified that the potholes were six to eight inches deep at the time of Wayne’s accident. The jury was free to accept the testimony of whomever they believed to be most credible.

Pat Kane testified that pothole size is greatly affected by the type of vehicles using the road. Trucks grossing over 100,000 pounds cause potholes to grow much more quickly than do ordinary passenger cars. People who resided on or near Saddle Rock Road testified that traffic on that road consisted primarily of the residents’ vehicles and a few trucks. Thus, there was sufficient evidence to support a determination by the jury that the State’s employees acted reasonably in not immediately repairing shallow potholes which were not susceptible to rapid growth.

Townsend contends the jury’s verdict improperly invokes the financial feasibility defense. We disagree. The financial feasibility defense has been soundly rejected by our Court when cost is the State’s sole excuse for its failure to construct or maintain properly. State ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201. “However, where cost is but one among many factors affecting the State’s choice of a particular method of construction or maintenance, it is relevant evidence on the reasonableness of the alternative taken.” Modrell v. State (1978), 179 Mont. 498, 501, 587 P.2d 405, 406.

The jury was given the identical instruction approved in Modrell as to the impermissible use of the financial feasibility defense.

“INSTRUCTION NO. 16

“If you find that the Defendant, State of Montana, was negligent in planning, constructing or maintaining the highway in question you may not excuse the State’s negligence on the ground that proper maintenance or lack of sufficient employees was beyond the financial means of the State of Montana. Lack of adequate funds or an adequate number of employees is not a factor in the duty of the State to plan, construct and maintain its highways in a reasonably safe condition.”

Here, cost is not the State’s sole defense. There is a limit to how many potholes can be repaired in any given time period. The Department’s supervisory employees made a decision based on the severity of the potholes, as well as the frequency and type of traffic on the road in determining whether repair of the potholes was immediately necessary. They took a calculated risk that the potholes were small enough and the traffic light enough that repair of the potholes could wait without endangering the safety of the traveling public. The jury agreed with the employees’ decision. There is substantial credible evidence to support the jury’s decision.

Reversed and remanded for reinstatement of the jury verdict.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    In the Matter of the ESTATE OF GRACE ALICE WATSON, Deceased.
    No. 86-424.
    Submitted on Briefs April 3, 1987.
    Decided June 17, 1987.
    738 P.2d 494.

      Robert L. Johnson, Lewistown, for appellant.
    Timothy J. O’Hare, Lewistown, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellants Orville Watson and Garnet Watson appeal an order of the Tenth Judicial District Court, Fergus County. The order determined that appellants’ deceased mother had testamentary capacity, and admitted the mother’s will into formal probate. We affirm.

Appellants present a single issue for our review: Did the District Court err in failing to give Orville and Garnet Watson the benefit of the presumption of Section 72-20-208, MCA, which states: “Presumption against trustees. All transactions between a trustee and his beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which he obtains any advantage from his beneficiary are presumed to be entered into by the latter without sufficient consideration and under undue influence.” (Emphasis added.)

Grace A. Watson and her husband, Cyrus, were dry land farmers near Moccasin, Montana. They had three sons: Henry, Orville and Garnet. Cyrus died in 1945 leaving his entire estate to Grace. Over the next thirty years, the sons filed suits and countersuits against Grace and against each other. Henry, the oldest son, and Garnet, the youngest, left the farm. Grace moved to Lewistown, and Orville remained on the farm. In 1974, Grace and the sons settled a property division, and Orville moved off the farm. In 1976, while under the care of Henry, Grace made a will which left her estate to Henry and Garnet in equal shares, and named them as co-personal representatives. The will expressly excluded Orville from any share of the estate.

On January 18, 1980, Grace gave Henry her power of attorney. Later, while Grace was in a nursing home on October 31, 1980, she executed a trust agreement with Henry. Under the trust, Grace would receive a life income from the trust estate; and upon Grace’s death, the trust estate would be distributed in accordance with Grace’s will.

On November 21, 1980, at age 86, Grace executed a new will. The will was signed in the presence of her attorney and witnessed by a third party. Henry was not present when the will was signed. The will named Henry as the sole devisee. The will also provided that if Henry pre-deceased Grace, then Grace’s estate would pass to Henry’s widow, Virginia R. Watson. Henry was named as personal representative, with Virginia as the alternate. Henry died on July 14, 1984. When Grace died on April 21, 1985, Virginia was the sole remaining devisee under Grace’s will.

On May 23, 1985, as personal representative of Grace’s estate, Virginia applied for informal probate. The application for determination of inheritance tax placed the total value of Grace’s estate at $78,454. On July 2, 1985, Orville and Garnet filed an action which sought to set aside the probate of Grace’s will, declare that Grace Watson died intestate, and appoint Orville and Garnet as personal representatives.

On June 20, 1986, the District Court made the following findings:

“9. That at the time the decedent, GRACE A. WATSON, executed her said Last Will and Testament, the Will admitted into informal probate in Fergus County Probate Cause No. 7607, she understood the nature and extent of her estate and understood that by that Will she was making the appointment provided for in the Trust Agreement previously executed by her. She also understood that she excluded any devise to her son, CYRUS ORVILLE WATSON, and made a somewhat unique provision for her son, GARNET A. WATSON; and understood why she made that latter provision: to avoid anything going to GARNET A. WATSON’S wife.
“By reason of the foregoing, it is the finding of this Court that in making and executing the said Will the decedent had testamentary capacity.
“10. That decedent’s son, OREN HENRY WATSON, may have had opportunity to exercise undue influence upon his mother, the decedent, but there is no evidence that he did so in fact. The Will is the result of the decedent’s desires and intentions, and hers only. [Emphasis added.]”

The court then concluded:

“3. The said Will, having been contested and having been found to be valid and unrevoked, should be admitted into formal probate and VIRGINIA R. WATSON is entitled to remain the Personal Representative of the Estate of GRACE A. WATSON.”

Orville and Garnet contend that the District Court was required to give them the benefit of the presumption of Section 72-20-208, MCA. They assert that Section 72-20-208, MCA, places the burden of proving no undue influence on the proponents of the will. Orville and Garnet contend that Henry bore a confidential relationship with Grace as a result of the power of attorney she gave him, and that Henry contrived to exclude them from the estate. They argue that Grace lacked adequate testimonial intent or capacity due to her memory loss, confusion, and Henry’s undue influence. They further argue that Henry acted within his capacity as trustee when he helped Grace try to retrieve a doll she had given to Garnet’s wife.

On this issue, our standard of review is whether substantial evidence supports the District Court’s findings, when viewed in a light most favorable to the prevailing party. Adams v. Allen (Mont. 1984), [209 Mont. 149,] 679 P.2d 1232, 1234, 41 St.Rep. 610, 612.

In analyzing the issue we note the intention of Grace, as expressed in her will, controls the legal disposition of her estate. Section 72-2-501, MCA. If the true intentions of the testatrix are manifest in her will, we will not contradict those intentions. Matter of Estate of Hogan (Mont. 1985), [218 Mont. 428,] 708 P.2d 1018, 1020, 42 St.Rep. 1711, 1713.

Grace knew the objects and extent of her bounty, and specifically mentioned both Orville and Garnet in her will. A special provision stated that Henry should look after Garnet. Orville was expressly excluded from both the 1976 will and the 1980 will.

Contrary to the contentions of Orville and Garnet, the contestant of a will has the burden of establishing undue influence. Section 72-3-310, MCA. Adams, 679 P.2d at 1235. However, Orville and Garnet only showed that Henry had the opportunity to exercise undue influence, but presented no evidence that he did so in fact. We hold that the mere opportunity for undue influence is not tantamount to the actual exercise of undue influence.

Orville and Garnet presented no evidence of any improper act by Henry in the administration of the trust. The trust agreement was properly executed by Grace, as grantor, and Henry, as trustee. It contained the following dispositive provision:

“During the lifetime of the Grantor, the Trustee shall pay to the Grantor all of the net income from the trust estate; and, upon the death of the Grantor, the Trustee shall dispose of the remainder of the trust estate in such shares, proportions, and estates, in trust or otherwise, as the Grantor may direct and appoint by her Last Will and Testament. . .”

Grace’s will was incorporated by reference into the trust agreement. The execution of Grace’s will was a unilateral act by her as testatrix. The execution neither affected Grace’s status as grantor of the trust nor altered Henry’s status as trustee.

The general principle of liability of a trustee necessarily applies only to those acts related to his administration of the trust, and not for acts or omissions outside the trust. The preparation of a will by a grantor wherein the trustee is granted the residue of the estate, is not, standing alone, a trust transaction between the trustee and grantor/beneficiary within the meaning of Section 72-20-208, MCA.

Furthermore, Section 72-20-208, MCA, only creates a rebuttable presumption of undue influence. Presumptions may be rebutted and overcome by relevant evidence. Substantial relevant evidence supports the court’s determination that Grace’s will was properly executed, and that Grace was competent and acted without undue influence by Henry. Grace’s nurse, physician and attesting witness all testified that Grace was competent at the time she executed her will, less than one month after she executed the trust.

Orville and Garnet’s reliance on the presumption of Section 72-20-208, MCA, is misplaced. This statute has specific application where a trustee takes trust property for his personal benefit. Orville and Garnet presume a transaction where none existed. The mere naming of Henry as both trustee and residuary devisee does not create a transaction between the trustee and grantor/beneficiary and thereby shift the burden of proof to the trustee.

We will not apply Section 72-20-208, MCA, where the subject matter of the statute is not applicable to the facts and is not supported by the evidence. We hold that Section 72-20-208, MCA, does not apply to this case.

We affirm the findings and conclusions of the District Court.

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


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF ROSEANNE BLOOM-HIGHAM, Petitioner and Respondent, and THOMAS MICHAEL HIGHAM, Respondent and Appellant.
    No. 86-590.
    Submitted on Briefs April 3, 1987.
    Decided June 17, 1987.
    738 P.2d 114.
    Roseanne Bloom-Higham, pro se.
    Thomas Michael Higham, pro se.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant brings this appeal pro se from a preliminary decree of dissolution of the District Court of the Thirteenth Judicial District in and for Carbon County, Montana, denying him custody of his son. We remand.

Respondent Roseanne Bloom-Higham filed for dissolution of marriage in November 1984. She and appellant, Thomas Higham, are parents of a boy, then age six, and a girl, then age four. Thomas had custody of a son from a previous marriage. Roseanne petitioned for sole custody of both children of her marriage to Thomas. Thomas resisted her motion for custody of their son. The District Court ordered the court’s domestic relations department to make a custody investigation. Subsequent to the order, Thomas filed an amended answer stating he did not oppose Roseanne’s demand for custody of both children, although he did not believe “such custody of the children is the best solution for them per se . . . [and he] is willing and much desires to care for the children in part or in whole, at anytime.” The children were at that time spending equal time with both parents.

A hearing on the dissolution was held May 8, 1985, at which Roseanne was represented by counsel and Thomas appeared pro se. The hearing was bifurcated, the dissolution was granted awarding custody of both children to Roseanne, with reasonable visitation granted Thomas. The parties and Roseanne’s attorney were instructed to attempt to work out a property settlement and the amount of child support payments. A preliminary decree of dissolution was filed June 10, but Thomas did not receive a copy.

Roseanne’s counsel apparently notified Thomas by telephone in July that the court desired an “in-chambers” meeting the following day. Thomas attended the meeting and claims it was at that meeting he first learned that the preliminary decree of dissolution granted custody of both children to Roseanne. On advice of the District Judge, he immediately obtained counsel who moved the court to set aside the custody portion of the preliminary decree of dissolution.

A hearing was held in August to set aside the custody portion of the preliminary decree and to set temporary child support. The court ordered Thomas to pay temporary child support of $100 per month per child to Roseanne. In February 1986, the court denied Thomas’ motion to set aside the custody decree. His motion to reconsider, filed pro se, was denied. An appeal to this Court filed pro se April 22, 1986, was dismissed as being premature, because the property settlement had not yet been agreed to and no final order had been entered. All issues were settled in September 1986. This appeal was filed pro se on the issue of custody.

“In child custody matters the primary factor to be considered is the best interest of the child. Section 40-4-212, MCA, Malcomb v. Malcomb (1982), 196 Mont. 477, 640 P.2d 450, 39 St.Rep. 262.” Meyer v. Meyer (Mont. 1982), 204 Mont. 177, 663 P.2d 328, 330, 40 St.Rep. 753, 755.

The relevant factors to be considered as set forth in Section 40-4-212, MCA, include:

“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent, parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community; and
“(5) the mental and physical health of all individuals involved.”

While the District Court is not required to make specific findings on each of the five elements in the statute, the “essential and determining facts upon which the District Court rested its conclusion” must be expressed. [Citing cases.] In Re Marriage of Keating (Mont. 1984), [212 Mont. 462,] 689 P.2d 249, 251-252, 41 St.Rep. 1865, 1868. In the preliminary decree of dissolution in the instant case, the District Court found “[t]hat it is in the best interests of the minor children of the parties to be placed in the care, custody and control of the petitioner, with reasonable visitation granted to the respondent.” The District Court then concluded “[t]hat the care, custody and control of the minor children of the parties should be with the petitioner, with reasonable visitation to the respondent.” The preliminary decree of dissolution lacks the “essential and determining facts” on which custody was based.

When custody is contested, at the request of a parent the court may order an investigation and report concerning custodial arrangements for the child. Section 40-4-215, MCA. The statute also mandates the District Court to mail the report to counsel and any party not represented by counsel at least ten days prior to the hearing. Roseanne made such a request and the court ordered an investigation. There is no evidence in the record, however, that a report was received by the court, or' that it was mailed to counsel, or that the court considered the report before issuing its preliminary decree. No testimony relative to the investigation was received at any hearing.

“Not only did the trial court fail to send copies of the report, but no hearing was held to permit testimony on the issues ... If the trial court found it appropriate to order the custody investigation, it abused its discretion by not considering the report in the process of reaching its final custody decision.”

In Re Marriage of Ziegler (Mont.1985), [215 Mont. 208,] 696 P.2d 983, 986, 42 St.Rep. 298, 300-301. It is clear the court in the case at bar similarly abused its discretion.

We are reluctant to overturn the District Court in custody matters and will do so only when we find a clear abuse of discretion. Rule 52(a) M.R.Civ.P. In this case we find such abuse. Therefore we vacate the order as to custody, and remand the case to the District Court for appropriate action.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD L. SHAFFER, Defendant and Appellant.
    No. 87-018.
    Submitted on Briefs May 28, 1987.
    Decided June 17, 1987.
    738 P.2d 491.

      Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Susan Loehn, Lincoln Co. Atty., Libby, for plaintiff and respondent.
    Donald L. Shaffer, Libby, pro se.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Donald L. Shaffer, the defendant, appeals his conviction in Lincoln County District Court for driving under the influence of alcohol. The issue presented to this Court is whether the District Court erred in allowing evidence and argument on the contents of anonymous phone calls. We affirm.

On February 13, 1986, at 12:01 a.m., the police station in Eureka, Montana, received a phone call from an anonymous adult woman reporting that a blue station wagon, Montana license number 56-2471, was traveling toward Libby at a high rate of speed. Four or five minutes later, the police station dispatcher received a second anonymous phone call from a man who reported that his vehicle had nearly been run off the road by a vehicle. The caller’s description of the speeding vehicle was, in the dispatcher’s words, “exactly the same” as the earlier report. The dispatcher informed a deputy sheriff patrolling near Eureka and the sheriff’s office in Libby that the vehicle was traveling toward Libby, or in a southerly direction. Two officers in separate cars met the described vehicle on the highway north of Libby. The first officer to see the vehicle reported that the vehicle’s license plate number matched that of the number earlier reported to the dispatcher. The second officer eventually was able to stop the vehicle after clocking it by radar at 47 m.p.h. in a 35 m.p.h. speed zone. Another officer arrived at the scene soon thereafter. According to the arresting officer, the defendant smelled of alcohol, slurred his speech, appeared to be off-balance, used obscene language, and was very argumentative and aggressive. After being informed of the two anonymous phone calls, the defendant denied having been in the Eureka area since 5:00 p.m. that day. In addition, the defendant refused to follow the officer’s directions for performing various field sobriety tests and was thereafter arrested for driving under the influence of alcohol (DUI), Section 61-8-401, MCA. A videotaped interview showed the defendant refusing to take a breath-alcohol test, using obscene language, slurring his speech, and being obnoxious and irate toward the officers. The defendant was found guilty in Justice of the Peace Court and he appealed to District Court. The three officers who witnessed the defendant on the date of the incident all testified that in their opinion the defendant was under the influence of alcohol. Furthermore, they gave reasons to justify their opinions. The dispatcher, over objection, testified as to the anonymous phone calls she received on the night the defendant was arrested. That testimony was referred to in the State’s final argument and the record discloses that no objection or motion to strike was made by the defendant. It should be noted that the dispatcher asked for the names of the anonymous callers but the callers refused to disclose that information. The jury returned a guilty verdict and the court sentenced the defendant to 48 hours in jail, suspended his driving privileges for six months, imposed a fine of $400, and ordered the defendant to attend the Montana Court School at his own cost.

The issue before us is whether the District Court erred in allowing evidence and argument on the contents of anonymous phone calls. The defendant argues that the State’s reference to the phone calls at trial constituted a violation of his right to confront witnesses under the state and federal constitutions.

The standard of review is the substantial evidence test. This test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. State v. Oman (Mont. 1985), [218 Mont. 260,] 707 P.2d 1117, 42 St.Rep. 1565. We believe the stopping of defendant’s vehicle was justified and we cite the following:

“All that is required of an officer in making an investigatory stop is that he have a “particularized” or “reasonable” suspicion that criminal activity may be afoot. This is the applicable standard for an investigative stop of a vehicle; or in other words ‘some basis from which the court can determine that the detention was not arbitrary or harassing.’ ” State v. Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078, 1081, relying on United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.”

State v. Sharp (Mont.1985), [217 Mont. 40,] 702 P.2d 959, 962, 42 St.Rep. 1009, 1012.

The arresting officer had a justifiable reasonable suspicion that a possible DUI offense was in progress. Information as to the vehicle’s description, license number, and direction of travel was corroborated by two officers. Moreover, the defendant was speeding at the time his vehicle was clocked by the arresting officer. The officer’s reasonable suspicion which justified the stop ripened into probable cause to arrest for DUI upon the officer’s observations of the defendant’s impaired motor functions. We find substantial evidence independent of the anonymous tips to support the conviction. We refer to evidence of the defendant’s intoxicated condition as testified to by three officers, defendant’s slurring of his speech, use of obscene language toward the officers, and other obnoxious and aggressive behavior as shown on the videotaped interview. Clearly, the evidence presented indicates that there was ample justification for placing the defendant under arrest for DUI.

The defendant argues that since the names of those giving the tips to the police were not disclosed at trial, his state and federal constitutional right to confront his witnesses has been violated. He cites Moore v. U.S. (1976), 429 U.S. 20, 97 S.Ct. 29, 50 L.Ed.2d 25, for support. That case is distinguishable on facts. In Moore, the police received a tip from an informant that Moore and others were in possession of heroin at “Moore’s apartment.” The police executed a search warrant and found Moore and a woman in close proximity to a quantity of heroin on a coffee table. In adjudging Moore guilty, the trial court expressly relied on the hearsay declaration of the informant. The United States Supreme Court reversed and remanded, stating that “whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin, the fact is that the trial court did not find Moore guilty on that evidence alone.” 429 U.S. at 22, 97 S.Ct. at 30. The Court therefore remanded as to whether the wrongful admission of the hearsay evidence was harmless error.

Here the two tips were corroborated by two investigating officers and were used in conjunction with evidence of the vehicle’s excessive speed to effectuate a justifiable stop of the vehicle. The tips were not, as in Moore, the essential evidence upon which the defendant was convicted; testimony by law enforcement personnel and the videotape constituted the essential evidence at trial.

We believe the issue presented by defendant involves hearsay, not the right of confrontation of witnesses. Rule 801(c), M.R.Evid. states:

“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

We conclude that the two anonymous phone calls were offered in evidence to establish a reasonable suspicion that a driving violation was underway. Both calls concerned a vehicle traveling toward Libby at an excessive speed, and in fact the defendant was clocked at 47 m.p.h. in a 35 m.p.h. speed zone. The calls did not mention the defendant’s physical condition or draw conclusions as to whether the defendant was driving under the influence of alcohol. Since the calls were not offered to prove that the defendant was driving under the influence of alcohol, the calls were not hearsay. Furthermore, since the calls were not hearsay, the confrontation issue is non-existent. We hold that there is substantial evidence to support the defendant’s conviction.

Affirmed.

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


text:
    DAN O’NEILL, Petitioner and Respondent, v. DEPARTMENT OF REVENUE of the State of Montana, Respondent and Appellant.
    No. 86-474.
    Submitted April 29, 1987.
    Decided June 22, 1987.
    739 P.2d 456.

      Larry Schuster, Dept, of Revenue, Helena, for respondent and appellant.
    Dunlap & Caughlan, Deidre Caughlan argued, Butte, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Department of Revenue (DOR) appeals a July 24, 1986, order of the Second Judicial District Court, Silver Bow County. The order reversed the State Tax Appeal Board’s valuation of O’Neill’s property in 1982, accepted O’Neill’s valuation of the property, and ordered that O’Neill’s taxes be adjusted accordingly. We vacate and remand to the District Court for further development of the record.

DOR-presented five issues for our review:

(1) Did the District Court err by substituting its judgment for that of STAB, thereby exceeding its scope of authority under Section 2-4-704, MCA?

(2) Did the District Court err by allowing O’Neill to testify at the judicial review of the STAB decision, without the showing of good cause required by Section 15-2-303(4), MCA?

(3) Did the District Court err by allowing O’Neill to supplement the administrative record with an affidavit, without the showing of good cause required by Section 15-2-303(4), MCA?

(4) Did the District Court err by infusing its own opinion of O’Neill’s property value into its decision?

(5) Did the District Court err by allowing O’Neill to pay his delinquent taxes, without an accompanying payment of accrued penalties and interest?

At oral argument, we also raised the following issue:

(6) Does Section 15-7-308, MCA, prohibit DOR from revealing specific information about the relevant comparable sales which DOR used in appraising O’Neill’s property?

Daniel O’Neill owns two parcels of commercial real estate on Harrison Avenue in Butte, Montana. The first parcel is an unimproved acre at 3755 Harrison Avenue. The second parcel consists of 7.5 acres containing a motel and O’Neill’s residence at 3655 Harrison Avenue. In 1982, the Department of Revenue valued the first parcel at $63,398 and the second parcel at $166,320, based on the realty transfer certificates of comparable sales in the area.

However, O’Neill asserted that his property values were $18,893 and $79,600, respectively. O’Neill unsuccessfully appealed the DOR valuations to STAB. He then petitioned the District Court for judicial review under the provisions of Section 15-2-303(1), MCA, which states: “Any party to an appeal before the state tax appeal board who is aggrieved by a final decision in a contested case is entitled to judicial review under this [301 et seq.] part.” The District Court reversed the STAB decision, and DOR appeals.

Issues 1-3

Following its review, the District Court made these findings of fact:

“XII. The the use of [Lescovar Motors, Copper King Inn, and Wendy’s Hamburgers] properties for comparable market values is not a true reflection of the market value as the sales are speculative and further (2) of the comparables are too far from the subject properties to be of value in establishing market value in close proximity.
“XIII. That such values set for purposes of appraisal of the Plaintiff’s property are inconclusive as a test of true market value. It is a personal observation of this Judge that the Plaintiff’s property does not generate business comparable to other motels, even minor active motels on Harrison Avenue. One motel larger than Defendant’s [sic] motel closes for the winter months because of lack of occupancy. The Butte-Silver Bow business community has lost, as of the date of the appraisal herein, at least one-third of its theretofore business. The Department of Revenue is clearly wrong and it should have to make another appraisal. (Emphasis added.)”

The District Court made the following conclusions of law:

“2. That the system of appraisal using speculative land purchases as applied is inconsistent with providing a general and uniform method of classifying lands in accordance with true market value fails to provide an equitable and uniform basis of assessment of the Plaintiff’s property when compared with the market value of the property.
“3. That similar properties in the same area of Harrison Avenue have been appraised differently as the Plaintiff demonstrated by comparing his property to that of the Hamm’s Motel.
“4. That a review of the entire record together with the evidence presented at the hearing indicates that the Board’s denial of the Plaintiff’s appeal and retaining the appraisal value of the subject property on the tax rolls is clearly erroneous in view of the reliable probative and substantial evidence on the whole record. [Emphasis added.]”

DOR contends that the District Court exceeded its scope of review under Section 2-4-704, MCA. DOR argues that the District Court has the expertise in ascertaining the law, but STAB has the expertise in ascertaining the facts. DOR asserts that STAB, as the trier of fact, was entitled to determine the proper appraised value of O’Neill’s property.

Issues 1, 2 and 3 are interrelated and require discussion of Section 2-4-703, Section 2-4-704, and Section 15-2-303(4), MCA. Our analysis of these issues begins with the Montana Administrative Procedure Act (MAPA) Section 2-4-703, MCA, which requires prior permission of the court before any additional evidence can be presented to an administrative agency:

“If, before the date set for hearing, application is made to the court for leave to present additional evidence . . . the court may order that the additional evidence be taken before the agency upon conditions determined by the court. (Emphasis added.)”

Under Section 2-4-703, MCA, when the court has allowed such additional evidence, it may be presented to the agency, but not to the court. This limitation accords with the standard of review of contested MAPA cases under Section 2-4-704, MCA, which confines the court’s review to the record:

“(1) The review shall be conducted by the court without a jury and shall be confined to the record . . . The court, upon request, shall hear oral argument and receive written briefs.
“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced . . . [Emphasis added.]”

In contrast, the court’s review of contested STAB decisions is not confined to the record. Section 15-2-303(4), MCA provides:

“Notwithstanding the provisions of 2-7-704(1), the court may, for good cause shown, permit additional evidence to be introduced.”

In other words, judicial review of MAPA contested cases under Section 2-7-704, MCA, is limited to the record, but judicial review of STAB contested cases under Section 15-2-303(4), MCA, allows the court to supplement the record. Dept. of Revenue v. Davidson Cattle Co. (Mont. 1980), [190 Mont. 326,] 620 P.2d 1232, 1235, 37 St.Rep. 2074, 2077. Under Section 15-2-303(4), MCA, the court reviewing a STAB decision may, on its own initiative or upon motion of a party, find good cause and allow additional evidence to be introduced before the court. Hi-Line Radio Fellowship v. DOR (Mont. 1987), [227 Mont. 150,] 737 P.2d 886, 44 St.Rep. 955. Once the additional evidence is introduced into the record, the reviewing court must then make appropriate findings of fact and conclusions of law. Rule 52(a), M.R.Civ.P.

On the day of the hearing on judicial review, O’Neill moved the District Court for leave to introduce additional evidence. The court granted O’Neill’s motion, and he then testified about the market value of his property. O’Neill also introduced a Butte title officer’s affidavit, which stated that two parcels near J.C. Penney’s sold for approximately $20,000/acre, and that one parcel north of Lydia’s Restaurant sold for approximately $7,500/acre at a tax sale.

DOR contends that O’Neill failed to show good cause for the addition of his testimony and the affidavit, and that the sudden introduction of the evidence denied DOR the opportunity for effective rebuttal. DOR asserts that O’Neill failed to show that the affiant was unavailable as a witness, and therefore the affidavit was hearsay. DOR further argues that O’Neill had ample opportunities to fully state his case before the Silver Bow Tax Appeal Board and STAB, and that his testimony was unsupported and cumulative.

We find that the showing of good cause under Section 15-2-303(4) is permissive, not mandatory. Any legally sufficient reason meets the good cause requirement of Section 15-2-303(4), MCA, and such sufficiency lies within the discretion of the reviewing court. Furthermore, the additional evidence is not restricted to the parties. The court can accept evidence from a variety of sources. In the instant case, O’Neill’s testimony may have been cumulative, but it was also probative of the market value of the property and thus fulfilled the good cause requirement. The affidavit did not violate the good cause requirement because it offered evidence of comparable sales. The availability of the affiant is a question of credibility, not admissibility. We hold that the District Court properly exercised its discretion under Section 15-2-303(4) when it permitted the introduction of O’Neill’s testimony and affidavit.

Issue 4

Did the District Court err by infusing its own opinion of O’Neill’s property value into its decision?

DOR contends that the District Court, in essence, became a witness and advocate for O’Neill by permitting its personal views to become part of its decision. DOR asserts that a reviewing court should remain an impartial tribunal for all litigants. DOR argues that the court’s personal observations are unilateral impressions which cannot be deemed judicially-noticed facts.

Judicial notice of facts is governed by Rule 201(b) of the Montana Rules of Evidence which states: “A fact to be judicially noticed must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

We note that the District Court went far beyond the record when it observed that O’Neill’s property does “not generate business comparable to other motels.” The District Court’s observations could only be verified by the income statements of other motels on Harrison Avenue, or similar specific data. This data would not be “generally known” or “capable of accurate and ready determination.” To qualify for judicial notice, an extrinsic fact must lie within the judge’s immediate knowledge and not require thorough research.

In the instant case, the District Court’s empirical observations pass beyond the scope of judicial notice and border on judicial impression. The observations were not supported by the record, and are not sufficiently indisputable to qualify as judicially-noticed facts. We hold that the District Court erred on this issue.

Issue 5

Did the District Court err by allowing O’Neill to pay delinquent taxes without an accompanying payment of accrued penalties and interest?

STAB had issued an order staying the collection of all O’Neill’s taxes, penalties and interest while O’Neill’s appeal was pending before STAB. O’Neill later attempted to pay his delinquent taxes to the Butte-Silver Bow Treasurer, who refused to accept payment of the taxes without an accompanying payment of the accrued penalties and interest. Upon motion by O’Neill on January 17, 1984, the District Court allowed O’Neill to pay his delinquent taxes to the Butte-Silver Bow Treasurer. However, the District Court did not require O’Neill to pay the accrued penalties and interest.

DOR contends that the District Court erred, because the taxpayer is required to pay the disputed portion of the tax under protest before it becomes delinquent. DOR argues that both STAB and the District Court acted beyond the scope of their lawful powers, when they stayed payment of penalties and interest.

Our analysis of this issue is governed by Section 15-1-402, MCA, which allows a taxpayer to pay his taxes under protest and recover the amount protested if his challenge is successful. Section 15-1-402(1), MCA, states:

“The person upon whom a tax or license fee is being imposed may . . . before the tax or license fee becomes delinquent, pay under written protest that portion of the tax or license fee protested. The payment must (a) be made to the officer designated and authorized to collect it; and (b) specify the grounds of protest. [Emphasis added.]”

A tax becomes delinquent when the taxes are due and not paid. Section 15-16-102, MCA.

We held in Eagle Communications v. Treasurer of Flathead County (Mont. 1984), [211 Mont. 195,] 685 P.2d 912, 918, 41 St.Rep. 1303, 1311, that the County Treasurer is the officer who collects tax funds under Section 15-1-402, MCA. The general rule is that a taxpayer must pay his taxes when due, as a condition precedent for preserving his right to refund of property taxes under Section 15-1-402, MCA. Eagle Communications, 685 P.2d at 917. In the instant case, the Butte-Silver Bow Treasurer refused to accept payment of O’Neill’s delinquent taxes without an accompanying payment of penalties and interest, because O’Neill failed to comply with the requirements of Section 15-1-402, MCA. We hold that the Treasurer properly exercised his authority by refusing payment.

However, we cannot ignore the fact that both STAB and the District Court stayed the payment of penalties and interest by O’Neill. Therefore, we hold that O’Neill is required to pay penalties and interest on his 1982 taxes only to the date that he tendered payment of his 1982 taxes to the Butte-Silver Bow Treasurer. O’Neill’s failure to heretofore pay such penalties and interest on his 1982 taxes does not affect his standing to proceed with his contested case.

Issue 6

Does Section 15-7-308, MCA, prohibit the DOR from revealing specific information about the relevant comparable sales which DOR used in appraising O’Neill’s property?

Section 15-7-308, MCA, states that the disclosure of information on a realty transfer certificate (RTC) shall be restricted:

“The certificate required by this part and the information therein shall not be a public record and shall be held confidential by the county clerk and recorder, county ássessor, and department of revenue. This is because the legislature finds that the demands of individual privacy outweigh the merits of public disclosure.”

Throughout these proceedings, DOR asserted that it based O’Neill’s tax assessment on data from relevant “comparable sales.” This data was extracted from RTCs in the Harrison Avenue area. DOR’s case is therefore predicated on the validity and relevancy of those RTCs. Yet, nowhere in the record did DOR reveal any details of the RTCs it used. Without the relevant information from the RTCs, a taxpayer cannot effectively rebut DOR’s assessments, the Tax Appeal Board cannot make an informed decision, and the courts cannot conduct an adequate judicial review.

In oral argument before this Court, DOR contended that the confidentiality requirements of Section 15-7-308, MCA, precluded DOR’s disclosure of RTC information to the taxpayer party, tax boards or reviewing courts.

In analyzing Section 15-7-308, MCA, we note that the language protects the confidentiality of RTCs when the demand for individual privacy exceeds the merits of public disclosure. However, we must draw a distinction between public disclosure and limited disclosure to the taxpayer party, tax boards and reviewing courts in contested proceedings. When limited disclosure of relevant RTC information is crucial to a fair and informed decision by a tax appeal board or court, such disclosure outweighs individual privacy.

Therefore, in contested tax proceedings, we hold that relevant information from the RTCs shall be disclosed to the taxpayer party, tax boards, and reviewing courts. During the pendency of the proceedings, the RTC information shall not be available to the public. At the conclusion of the contested proceeding, any portion of the record which contains the disclosed RTC information shall be sealed and unavailable for public inspection. Such limited and transient disclosure of RTC information conforms to the confidentiality requirements of Section 15-7-308, MCA; while providing the benefits of substantive due process to the taxpayer in a contested case.

Under this holding, a taxpayer may apply to the District Court for a subpoena to compel the DOR to release relevant RTC information, upon which DOR based its comparable sales data. In order to minimize the intrusion into the records, the subpoena must identify the specific information requested by the taxpayer with as much precision as possible. The issuance and scope of the subpoena shall lie within the discretion of the District Court. Any abuse of the subpoena process, or overbroad requests for RTC information, may be prevented by a protective order from STAB or the District Court.

We vacate and remand this case to the District Court for further development of the record.

MR. JUSTICES HARRISON, WEBER, HUNT, GULBRANDSON and SHEEHY and HON. LEONARD LANGEN, District Judge, concur.


author: MR. JUSTICE WEBER

text:
    STATE COMPENSATION INSURANCE FUND, as subrogee for Workers’ Compensation benefits paid or payable to or on behalf of Tom W. Putnam, and Leonard D. Nielsen d/ b/a Nielsen Logging, Petitioners and Appellants, v. CASTLE MOUNTAIN CORPORATION, Employer, and United Pacific/Reliance Insurance Companies, Defendant and Respondent.
    No. 86-368.
    Submitted April 27, 1987.
    Decided June 23, 1987.
    739 P.2d 461.
    See also, [216] Mont. [306,] 702 P.2d 333.

      Hughes, Kellner, Sullivan. & Alke, Mike McCarter, Helena, argued for State Comp.
    Kelly & Halverson, P.C., Patrick R. Sheehy, Billings, argued for Putnam.
    Neil S. Keefer, argued for Castle Mountain & United Pacific, Billings, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State Compensation Fund (State Fund) appeals this decision of the Workers’ Compensation Court, and the claimant Tom Putnam cross-appeals. The court held that claimant’s employer was Nielsen Logging and that Nielsen Logging was an employee of Castle Mountain Corporation (Castle Mountain) at the time claimant was injured. It also held that the State Fund, which insured Nielsen Logging, was not entitled to indemnification from Castle Mountain’s insurer for workers’ compensation payments made to Mr. Putnam. We affirm in part and vacate in part.

One issue resolves this appeal. The issue is:

Did the Workers’ Compensation Court err in its application of Section 39-71-405(2), MCA?

Mr. Putnam was injured in October 1981 while working on a slash clearing project in an area known as Indian Island in Meagher County. At the time of his injury, Mr. Putnam was working for a partnership known as Nielsen Logging, which in turn had contracted to do the slash clearing for Castle Mountain. Mr. Putnam filed a workers’ compensation claim with Nielsen Logging’s insurer, the State Fund. His claim was denied on the basis that Nielsen Logging’s insurance had been canceled as of October 1, 1981. Mr. Putnam petitioned for an investigation of the denial, and also sought benefits from Castle Mountain’s insurer, in the event Nielsen Logging was indeed uninsured at the time of the injury.

The State Fund determined that a mistake had been made and that Nielsen Logging was insured at the time of the injury. The State Fund also took the position that the relationship between Castle Mountain and Nielsen Logging was one of employer-employee, and that Mr. Putnam was an employee of Castle Mountain and eligible for benefits through its insurer. However, State Fund accepted liability while the issues of employment and liability were straightened out between the two employers and their insurers.

In October 1984 the State Fund filed a petition with the Workers’ Compensation Court, asserting a right to indemnity against Castle Mountain’s insurer. The matter was submitted on extensive stipulated facts and stipulated issues to be determined by the court. The court concluded that the relationship between Castle Mountain and Nielsen Logging at the time of Mr. Putnam’s injury was that of employer-employee, not contractor-independent contractor. It concluded that Mr. Putnam was an employee of Nielsen Logging. It concluded that the State Fund was not entitled to indemnification from Castle Mountain’s insurer under Section 39-71-405(2), MCA, for benefits paid as a result of Mr. Putnam’s injury. It reasoned that to require Castle Mountain’s insurer to pay workers’ compensation benefits to Nielsen Logging’s injured employee would run contrary to the public policy of having all subcontractors maintain their own workers’ compensation insurance coverage. Both the State Fund and Mr. Putnam appeal.

Did the Workers’ Compensation Court err in its application of Section 39-71-405(2), MCA?

The Workers’ Compensation Court determined that Mr. Putnam was an employee of Nielsen Logging, which had workers’ compensation insurance coverage through the State Fund. No one argues against that conclusion. Mr. Putnam says that once that determination was made, the court had no jurisdiction to decide whether Nielsen Logging was an employee of Castle Mountain. He therefore urges that conclusion No.2 and judgment paragraph No.2 be stricken.

Castle Mountain and the State Fund both take the position that the court properly determined that Nielsen Logging was Castle Mountain’s employee. That conclusion, if affirmed, may shield Castle Mountain from liability in a separate tort action which Mr. Putnam has brought against it. The State Fund desires the additional conclusion that it is entitled to indemnification from Castle Mountain for benefits paid to Mr. Putnam, under Section 39-71-405(2), MCA.

Section 39-71-405, MCA, provides:

“Liability of employer who contracts work out. (1) An employer who contracts with an independent contractor to have work performed of a kind which is a regular or a recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under this chapter to the employees of the contractor if the contractor has not properly complied with the coverage requirements of the Worker’s Compensation Act. Any insurer who becomes liable for payment of benefits may recover the amount of benefits paid and to be paid and necessary expenses from the contractor primarily liable therein.
“(2) Where an employer contracts to have any work to be done by a contractor other than an independent contractor, and the work so contracted to be done is a part or process in the trade or business of the employer, then the employer is liable to pay all benefits under this chapter to the same extent as if the work were done without the intervention of the contractor, and the work so contracted to be done shall not be construed to be casual employment. Where an employer contracts work to be done as specified in this subsection, the contractor and the contractor’s employees shall come under that plan of compensation adopted by the employer.
“(3) Where an employer contracts any work to be done, wholly or in part for the employer, by an independent contractor, where the work so contracted to be done is casual employment as to such employer, then the contractor shall become the employer for the purposes of this chapter.”

The Workers’ Compensation Court applied Section 39-71-405(2), MCA.

The State Fund cites Carlson v. Cain (Mont. 1983), 204 Mont. 311, 664 P.2d 913, 40 St.Rep. 865, as support for requiring Castle Mountain to indemnify it for Mr. Putnam’s workers’ compensation benefits. In Carlson, the claimant ran a newspaper delivery route for Jerry Cain, who had contracted with the Billings Gazette to deliver newspapers to drop-off points in eastern Montana. Mr. Cain was ostensibly an independent contractor. However, when the claimant was injured on the delivery route and Mr. Cain had no workers’ compensation coverage, this Court determined that the claimant was an employee of Mr. Cain and Mr. Cain was an employee of the Billings Gazette. The Court held that claimant was entitled to benefits under the Gazette’s workers’ compensation coverage, under Section 39-71-405(2), MCA. The State Fund argues that under the same type of factual analysis as was used in Carlson, Nielsen Logging is an employee of Castle Mountain and Castle Mountain must indemnify it. The critical fact distinguishing Carlson from the present case is that Jerry Cain was uninsured. In contrast, Nielsen Logging had workers’ compensation insurance. The State Fund cites other cases on this issue. They are distinguishable on the same basis.

1C Larson, Workmen’s Compensation Law, Section 49.11 at 9-21 and 9-22, states:

“The purpose of this [’contractor-under’ statutes like Section 39-71-405, MCA] legislation was to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has it within his power, in choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation protection for their workers. This being the rationale of the rule, in the increasingly common situation displaying a hierarchy of principal contractors upon subcontractors upon sub-subcontractors, if an employee of the lowest subcontractor on the totem pole is injured, there is no practical reason for reaching up the hierarchy any further than the first insured contractor.”

The above statement by Larson expresses a rule which reflects the general purpose of Montana’s workers’ compensation laws, to provide for the protection of workers. We interpret the three subsections of Section 39-71-405, MCA, with that general purpose in mind.

Subsection (1) applies to the employer of an independent contractor performing work which is a regular or recurring part of the employer’s trade or business. It holds that employer liable for workers’ compensation benefits paid to the contractor’s employees, if the contractor is uninsured. Subsection (3) states that the employer of an independent contractor hired for “casual employment” is not liable for benefits. Subsection (2) holds liable for benefits the employer of a non-independent contractor engaged in work which is a part or process in the business of the employer. It is unclear how this is different from a general statement of the obligation of any employer to pay benefits. Subsection (2) does not refer to whether the contractor carries insurance. This was a critical factor in Subsection (1).

Section 39-71-405, MCA, was drafted over 70 years ago, near the beginning of the workers’ compensation system in Montana. At that time, the law and practice of contractor-subcontractor relationships was much less complex than it is today. Nothing in the statute suggests an intent to shift responsibility from one insured employer to another. We conclude that Subsection (2) was intended to grant workers’ compensation coverage to each non-independent contractor employee, when the work was in the regular course of business. It essentially grants workers’ compensation insurance coverage to a non-independent contractor employee in the same manner as if there were no intervening non-independent contractor. While we recognize that Subsection (2) could be read to require Castle Mountain to provide benefits for Mr. Putnam if Nielsen Logging was a non-independent contractor, we conclude that the subsection was not intended to address situations where the contractor is sufficiently independent to carry its own workers’ compensation insurance.

We hold that Section 39-71-405(2), MCA, does not cover a claim for indemnity by one insurance carrier against another. Since Mr. Putnam’s injury is covered by Nielsen Logging’s workers’ compensation insurance, Section 39-71-405, MCA, does not apply. It is not necessary to determine whether Nielsen Logging was an independent contractor or not, for purposes of Mr. Putnam’s workers’ compensation benefits. This is consistent with the rule expressed in Larson, and in harmony with the general purpose of Montana’s workers’ compensation law. In so holding, we emphasize that we do not rule upon the issue of whether Mr. Putnam may bring a separate suit against Castle Mountain.

We are reluctant to find fault with the failure of Section 39-71-405, MCA, to address concerns which have arisen over 70 years later. However, we suggest that the legislature may wish to modify or replace the statute with a clearer provision.

We affirm the Workers’ Compensation Court’s conclusion that Mr. Putnam was an employee of Nielsen Logging. We also affirm conclusion No. 4 that Mr. Putnam is entitled to workers’ compensation benefits through Nielsen Logging’s insurer, the State Fund. We vacate the lower court’s conclusion No.2 and judgment paragraph No.2 that Nielsen Logging was an employee of Castle Mountain.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, GULBRANDSON and HON. LEONARD H. LANGEN and HON. JOEL G. ROTH, District Judges, concur.


text:
    STATE OF MONTANA ex rel., Tom and Lillian MARTIN, et al., Plaintiffs/Respondents, v. GEORGE FINLEY and Evelyn Finley, husband and wife, Defendants/Appellants.
    No. 86-414.
    Submitted June 1, 1987.
    Decided June 23, 1987.
    738 P.2d 497.

      Kammerer Law Offices, P.C., Clinton H. Kammerer, Missoula, for defendants/appellants.
    Shaun Donovan, Mineral County Atty., Superior, for plaintiffs/ respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from an order issued by the District Court of the Fourth Judicial District in and for Mineral County. The District Court utilized the public nuisance doctrine to require a livestock owner to prevent his cattle from running upon the public roadways within an open range area. We reverse and 'remand in part and affirm in part.

The material facts of this case are not in dispute. George and Evelyn Finley are a married couple who own roughly 500 acres of land in Mineral County, Montana. The Finleys purchased their property in 1952, have lived on the land since 1965, and since about 1975 have raised a small number of livestock. The Finleys’ land is not fenced and the entire surrounding area is open range. The surrounding countryside is mixed forest and range and is bisected by public dirt and gravel county roads.

The Mineral County Sheriff’s Department received over the years a relatively large number of complaints lodged by neighbors against the Finleys’ wandering livestock. No action was taken, however, until the fall of 1984, following an increase in the number of reported incidents involving wandering cattle. On November 15, 1984, the State of Montana, on behalf of Tom and Lillian Martin and forty-seven other named plaintiffs, filed this action seeking injunctive relief.

In its complaint, the State, arguing that the Finleys’ loose livestock constituted a public nuisance, sought to enjoin the Finleys from allowing their livestock to wander beyond their property. The State argued that the Finleys’ livestock constituted a public nuisance because (1) the livestock interfered with the plaintiffs’ free use and enjoyment of their property, Section 45-8-lll(l)(a), MCA, and (2) the livestock ran at large upon public roads causing hazardous road and driving conditions, Section 45-8-lll(l)(c), MCA.

Following a show cause hearing, the District Court issued an order on December 3, 1984, granting a preliminary injunction. The court, in relevant part, found that the unrestrained wanderings of the Finleys’ livestock on public roadways constituted a public nuisance. Also, in a finding relevant to a separate issue on appeal, the court found that the Finleys owned a bull which was not certified as purebred and therefore could not, pursuant to Section 81-4-210, MCA, run at large.

The Finleys responded with a motion to dissolve the preliminary injunction. But in separate orders issued in May 1986, the District Court denied the Finleys’ motion and ordered that this nuisance be abated. Specifically, the court found that the presence of the Finleys’ livestock upon the public roads of Mineral County constituted a public nuisance as defined by Section 45-8-lll(l)(c), MCA, and ordered the Finleys to prevent their livestock from running upon these roads. Further, the court repeated its earlier finding that the Finleys were allowing an unregistered bull to run free on the open range and ordered the Finleys to confine this bull until they demonstrated it was purebred in accordance with the statutory requirements. From this order the Finleys appeal.

We are asked in this case to determine whether the public nuisance doctrine may be used to require a livestock owner to restrain his stock from the county roadways located in an open range area.

Montana since before its admission to the Union has been an open range state. This status is presently codified at Section 81-4-203, MCA, which provides;

“In 81-4-204, 81-4-207, and 81-4-208, the term ‘open range’ means all lands in the state of Montana not enclosed by a fence of not less than two wires in good repair. The term ‘open range’ includes all highways outside of private enclosures and used by the public whether or not the same have been formally dedicated to the public.”

The types of animals which may not roam free on the open range are specified by statutory exception. Sheep, swine and goats may not run on the open range. Section 81-4-201, MCA. Male equine animals may not run on the open range, equine animal defined as any stallion, ridgeling, unaltered male mule or jackass over the age of one year. Section 81-4-204, MCA. Bulls which are not purebred of a recognized line may not run at large and no bull, purebred or not, may be turned loose on the open range between December 1 and June 1. Section 81-4-210, MCA.

Under the definitional statute of open range, all highways in the state are included under the open range concept. However, with the steady increase of motor travel, refinement of the open range concept was proven necessary. In Montana, this refinement was undertaken by the legislature in 1974. Sections 60-7-101 et seq., MCA, obligate the State Department of Highways to fence certain rights-of-way and Sections 60-7-201 et seq., MCA, renders livestock owners liable for negligent conduct which results in the presence of their stock on certain rights-of-way. See Ambrogini v. Todd (1982), 197 Mont. 111, 120, 642 P.2d 1013, 1018. In the instant case, the only possibly relevant statute is Section 60-7-201, MCA, which, because it is limited to the rights-of-way of state highways, is inapplicable to the county roads at issue in this case.

Thus, the livestock owner in this case is under no statutory obligation to prevent his stock from wandering upon county roads. And the case law of this state has never imposed such an obligation. See Jenkins v. Valley Garden Ranch, Inc. (1968), 151 Mont. 463, 443 P.2d 753; Bartsch v. Irvine, Co. (1967), 149 Mont. 405, 427 P.2d 302.

The law of the open range remains the law of this state. The exceptions enacted by the legislature have been carefully crafted. We are now asked to apply a very general public nuisance statute to specific open range provisions. The use of a statute, external from the statutory livestock chapter, to impose an additional duty upon livestock owners is suspect.

Unfortunately, the remedies traditionally utilized by neighbors of stock owners are unavailable here. Because the wanderings of the livestock in question occur on public roads, neighbors cannot fence out and sue for trespass. Additionally, the commissioners of Mineral County concluded that a herd district could not be formed in this area. Section 81-4-301(1), MCA, requires that twenty-five percent or more of the land in any herd district be “in actual cultivation or being used for residential purposes.” The commissioners were advised that more than seventy-five percent of the land in Mineral County is owned by the federal government and administered by the United States Forest Service. The question was raised whether forestry silviculture programs could fit within the definition of “cultivation.” The commissioners were advised that the programs could not so fit and concluded that a herd district could therefore not be implemented. This question was not pursued by the State and was not addressed on appeal.

We recognize that the unrestrained wanderings of livestock on county roads poses potential hazards to motorists and pedestrians alike. However, we find as a matter of law that the public nuisance abatement statutes should not be utilized to require a livestock owner to prevent his or her stock from running free on county roads in an open range area.

Next, we affirm the District Court’s order requiring the Finleys to confine their bull until they demonstrate that this animal is purebred in accordance with statutory requirements. Sections 81-4-210, MCA, and 81-4-211(2), MCA, are statutory limitations to the open range law, imposing procedural certification or grading requirements upon a stockowner before an owner may allow a bull to run at large.

This action is remanded for further proceedings consistent with this opinion.

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


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    TIMBERLAND RESOURCES, INC., a Washington corporation, Plaintiff and Appellant, v. DIXIE A. VAUGHT, Clerk and Recorder of Sanders County, Montana; Claude I. Burlingame, County Attorney, and Sanders County, Montana, Defendants and Respondents.
    No. 87-90.
    Submitted on Briefs April 30, 1987.
    Decided June 23, 1987.
    738 P.2d 1277.

      Douglas Law Firm, S. Charles Sprinkle, Libby, for plaintiff and appellant.
    Recht & Greef, John D. Greef, Hamilton, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a summary judgment of the District Court of the Twentieth Judicial District in and for Sanders County, Montana. The District Court concluded that Sanders County was es-topped from refusing to record certain deeds although descriptions to the parcels of land did not meet the requirement of Section 76-3-401, MCA, for aliquot part descriptions. The court required the parcels in question to be surveyed on resale before the resale deed could be recorded, however. The court also granted summary judgment in favor of Sanders County, concluding Timberland was not entitled to recover damages. Timberland appeals the condition precedent to recordation of certain deeds and the summary judgment in favor of Sanders County. We uphold in part and reverse and remand in part.

The facts are undisputed. In the spring of 1978, Timberland Resources purchased and began the resale of contiguous parcels of property, each in excess of twenty acres, located in Sections 22, 23, and 27 of Township 24 north, Range 32 west, Sanders County, Montana. The parcels were purchased from Trout Creek Land Company. Quitclaim deeds from Trout Creek, as grantor, to Timberland, as a grantee were recorded in 1978 and 1979 in the office of the Sanders County Clerk and Recorder for each of thirty-five tracts. By January 1981, thirty-three of these tracts had been sold by Timberland and a Notice of Purchaser’s Interest for each of the sales was accepted and recorded by the Clerk and Recorder.

In January 1981, the Sanders County Attorney took the position that many of the parcels in question had been recorded in violation of the Montana Subdivision and Platting Act. An Attorney General’s Opinion was sought regarding the meaning of “aliquot part” in Section 76-3-401, MCA. The county advised Timberland that when deeds for the remaining parcels were presented for recording at the completion of the contract term for which the Notices were recorded, those tracts which did not meet the requirements of Section 76-3-401, MCA, would not be recorded without a survey.

Timberland appeals this part of the District Court’s order as well as the summary judgment in favor of Sanders County denying Timberland any damages that may have resulted from rescission of various earlier contracts. The Court will consider the following issues:

1. The meaning of “one-thirty-second or larger aliquot parts of a United States government section,” within the context of Section 76-3-401, MCA;

2. whether Sanders County is estopped from bringing an action to enjoin future transfers of the parcels in question; and

3. whether Sanders County is liable to Timberland for damages because of its refusal to record deeds to the parcels in question.

The statute in question, Section 76-3-401, MCA, provides:

“Survey requirements for lands other than subdivisions. All divisions of land for sale other than a subdivision after July 1, 1974, into parcels which cannot be described as one-thirty-second or larger aliquot parts of a United States government section or a United States government lot must be surveyed by or under the supervision of a registered land surveyor.”

This Court has said:

“The requirement of Section 76-3-401, MCA, can be satisfied if the parcel contains not less than 20 acres and is an aliquot part of a government section or lot and if it is divisible into aliquot parts of a government section or lot and the parcel is physically contiguous, even though the aliquot parts may be located in more than one government section or lot.”

McCarthy v. Timberland Resources (Mont. 1985), [219 Mont. 278,] 712 P.2d 1292, 1293, 42 St.Rep. 2016, 2018. In other words, so long as the land in question is not less than twenty contiguous acres and can be described with reference to United States government sections it complies with Section 76-3-401, MCA.

Section 76-3-402(3), MCA, provides that “division of sections into aliquot parts . . . shall conform to United States bureau of land management instructions . . . “ Sanders County argues that because Timberland proposes a twenty acre parcel which lies in two government sections, it is described by a diiferent scheme than the bureau of land management instructions, and thus is not an aliquot part which can be filed without a survey. We reject this argument for two reasons, however. The crux of the issue is whether the property is identifiable. “[D]eeds . . . must contain an adequate description of the property to be conveyed.” In re Estate of Verbeek (1970), 2 Wash. App. 144, 467 P.2d 178, 186; Sparks v. Douglas County (1985), 39 Wash.App. 714, 695 P.2d 588, 589.

First, as clearly stated in McCarthy, supra, the aliquot parts may be located in one or more sections. The parcel in question lies in two government sections, and does not conform to the standard shape of a twenty acre aliquot part. Nonetheless, it can be described with reference to United States government sections. The description of the land has not changed since it was divided by Trout Creek, quitclaimed to Timberland, and the quitclaim deeds were duly recorded. Division of this land into parcels pursuant to Section 76-3-401, MCA, occurred at that time.

“ ‘Division of land’ means the segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring or contracting to transfer title to or possession of a portion of the tract or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to this chapter.”

Section 76-3-103(3), MCA. Nor are the parcels subdivisions. “ ‘Subdivision’ means a division of land or land so divided which creates one or more parcels containing less than 20 acres ... in order that . . . the parcels may be sold, . . .” Section 76-3-103(15), MCA.

Second, subsequent transfer of the property did not meet any exceptions which would cause it to require a survey, thus precluding the Clerk and Recorder from recording it. Section 76-3-302, MCA. At the time Trout Creek quitclaimed the property to Timberland and it was properly recorded, Section 7-4-2613, MCA, the requirements of Section 76-3-401, MCA, were met.

The Court is reluctant to apply the doctrine of equitable estoppel to governmental entities as a matter of policy. In general, its application will be looked on with disfavor and the doctrine will be applied only in exceptional circumstances or where there is manifest injustice. See Chennault v. Sager (Mont. 1980), 187 Mont. 455, 610 P.2d 173, 176, 37 St.Rep. 857, 860. We agree with the District Court that, “it would be a manifest injustice ... to require ... a survey.” Sanders County did not require a survey before accepting notices of real estate contracts for recording. It cannot now require one prior to accepting for recording a deed bearing the same description as the Notice. It is too late for the buyer and the seller to include the costs of a survey in negotiating the contract sales price. For these reasons and because we determine Timberland is not in violation of Section 76-3-401, MCA, Sanders County is estopped from bringing an action to enjoin future transfers of the parcels in question.

The county is directed to accept and record deeds for the parcels in question, where the size of the parcel is twenty acres or more, where the Notice of Purchaser’s Interest for the parcel was accepted and recorded, and the parcel can be described with reference to United States government sections. A survey of those parcels on resale is not necessary in order for the resale deed to be recorded.

We uphold the District Court in its determination that Timberland is not entitled to damages. In the McCarthy case, supra, we allowed McCarthy to rescind his contract with Timberland because Timberland could not deliver marketable title to McCarthy due to refusal of the Clerk and Recorder to record the deed. We did not address the legality of the Clerk and Recorder’s action. Clearly, however, among Timberland’s alternatives was to proceed with a survey, or to bring an action to compel Sanders County to accept the description. Timberland had the means to preclude rescission actions, but took no steps toward this end until this action. It would be unreasonable to award damages under these circumstances. Thus, Sanders County is entitled to summary judgment.

We remand this case to the District Court for action consistent with this opinion.

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


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    STATE OF MONTANA, Plaintiff and Appellant, v. LONNIE MOEHR, Defendant and Respondent.
    No. 87-03.
    Submitted on Briefs May 21, 1987.
    Decided June 24, 1987.
    738 P.2d 499.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Joe A. Rodriguez, Co. Atty., Hardin, for plaintiff and appellant.
    James E. Torske, Hardin, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The State of Montana appeals the September 18, 1986, order of the Thirteenth Judicial District Court, County of Big Horn, granting defendant’s motion to dismiss for lack of speedy trial. We reverse.

On October 22, 1985, the Big Horn deputy county attorney filed an information and affidavit of probable cause alleging attempted sexual intercourse without consent by defendant, as specified in Sections 45-4-103 and 45-5-502(1), MCA.

Defendant was arrested and plead, not guilty to the charge of attempted sexual intercourse without consent at his arraignment October 22, 1985. On the same date, defendant was released from jail upon posting a $5000 bond.

An omnibus hearing was held February 28, 1986, and trial was scheduled for April 21, 1986. Immediately before trial on April 21, 1986, the State moved to amend the information by changing the reference code section from Section 45-5-502, MCA, to Section 45-5-503, MCA. Section 45-5-502, MCA, is the sexual assault statute and Section 45-5-503, MCA, addresses sexual intercourse without consent. Defendant objected to the amendment and requested a continuance should the motion to amend be granted. The district judge granted the motion to amend and also granted defendant’s request for continuance.

On May 20, 1986, the deputy county attorney filed a motion for trial date requesting trial in the immediate future to avoid any speedy trial problems. Trial was scheduled for August 18, 1986. On that date, Judge Luedke deemed himself disqualified, and the parties agreed to have Judge Sande appointed as presiding judge. Trial was rescheduled for August 20, 1986, but was vacated due to the unavailability of a court reporter. Defendant filed a motion to dismiss for lack of speedy trial on August 22, 1986. A hearing on the motion to dismiss was held September 12, 1986, and the District Court subsequently entered its order granting the motion to dismiss.

The District Court found the delay of 304 days to be attributable to the State. The court disagreed with the State’s contention that the delay following defendant’s request for continuance should be chargeable to defendant. The court, found the amendment to the information to be one of substance and not of form, therefore defendant was entitled to a continuance without defendant being charged for delay thereafter. The State appeals and raises the following issue:

Whether the District Court erred in granting defendant’s motion to dismiss for lack of a speedy trial?

The State contends that the amendment to the information was one of form and not of substance. Therefore, the continuance was not necessary and the subsequent delay is chargeable to defendant. We agree.

While the information incorrectly cited the sexual assault statute, Section 45-5-502(1), MCA, the intended charge of attempted sexual intercourse without consent is quite clear in the information:

“Jim Vogel, Deputy County Attorney of Big Horn County, deposes and says that on or about October 20, 1985, near Jack’s Homart Store and Graham-Staunton Chevrolet on Custer Street, Big Horn, County, Montana, the above-named Defendant committed the offense of ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT as specified in 45-4-103 and 45-5-502(1), M.C.A., 1983.
“The facts constituting the offense are:
“That at the above place and the above time, the above-named defendant committed the offense of ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT in that he knowingly attempted to have sexual intercourse without consent with another, namely, Mary Looks Behind, not his spouse, with the victim sustaining bodily injury, namely, a dislocated shoulder, and numerous bruises during the assault, contrary to the form, force and effect of the statutes in such case, made and provided and against the peace and dignity of the State of Montana.”

Section 45-5-503(1), MCA, defines sexual intercourse without consent as, “A person who knowingly has sexual intercourse without consent with a person of the opposite sex not his spouse commits the offense of sexual intercourse without consent.” The allegations in the information list all the elements of the crime of attempted sexual intercourse without consent.

The recent case of State v. Handy (Mont. 1986), [221 Mont. 365,] 719 P.2d 766, 43 St.Rep. 897, addresses the issue of sufficiency of an information which includes an incorrect statutory cite. In Handy, the information charged the defendant with violating Section 61-8-406, MCA, “in that said defendant did knowingly or purposely or negligently drive or be in actual physical control of a motor vehicle while under the influence of alcohol.” The cite to Section 61-8-406, MCA, which concerns operation of a motor vehicle with a blood alcohol concentration of 0.10 or more, was incorrect. The State moved to amend the information by changing the statutory cite to Section 61-8-401, MCA, which contains language nearly identical to that used in the information. This Court found amendment to be proper because the defendant was clearly appriséd of the charge. 719 P.2d 768, 43 St.Rep. 900.

In State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436, this Court stated, “[W]hen the facts, acts and circumstances are set forth with sufficient certainty to constitute an offense, it is not a fatal defect that the complaint gives the offense an erroneous name.” 196 Mont. 154, 640 P.2d 438. In the present case, the facts set forth in the information leave no room for doubt that defendant was being charged with attempted sexual intercourse without consent. Additionally, the offense was correctly named; this Court has previously held that an information is sufficient if it properly charges an offense in the language of the statute describing the offense. State v. Hankins (Mont. 1984), [209 Mont. 365.] 680 P.2d 958, 41 St.Rep. 762.

We find the information in this case fully apprised defendant of the offense for which he was being charged. Thus, the amendment to the information was one of form which did not prejudice the rights of defendant and trial could have occurred April 21, 1986, as scheduled without impairing the defense. Section 46-11-403(2), MCA, provides: “The court may permit an information to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”

We find the period of delay incurred following the grant of continuance to be chargeable against defendant. The record shows that trial would have occurred within six months of the filing of the charge had defendant not moved for continuance. Defendant being responsible for the subsequent delay, the State does not have the burden of explaining the delay or showing absence of prejudice to defendant. See State v. Tiedemann (1978), 178 Mont. 394, 584 P.2d 1284.

The District Court is reversed and this matter remanded for proceedings consistent with this opinion.

MR. JUSTICE HARRISON, WEBER, HUNT and SHEEHY concur.