author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS ARTHUR ROMERO, Defendant and Appellant.
    No. 86-24.
    Submitted Oct. 21, 1986.
    Decided Dec. 30, 1986.
    730 P.2d 1157.

      Knuchel & McGregor, Daniel B. McGregor argued, Livingston, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen argued, Asst. Atty. Gen., Helena, Neis Swandal, Co. Atty., Livingston, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant was convicted of criminal possession with intent to sell dangerous drugs, in a jury trial in Park County. We affirm.

The issues are:

1. Did the District Court err in denying the motion to suppress admission of the marijuana seized from the truck?

2. Was the evidence of other acts properly admitted?

On December 11, 1984, defendant Mr. Romero rented a motel room in Columbus, Montana. While in Columbus, he drank at several bars and was involved in a couple of altercations, resulting in his coming into contact with the police.

In the early morning hours of December 12, 1984, Highway Patrolman Jay Dixon was notified that a vehicle was in the median of the interstate near Livingston, Montana. The vehicle was Mr. Romero’s truck. The roads were icy, as it had snowed earlier. Patrolman Dixon reached the truck at approximately 5:30 a.m. and called in the Colorado license plate number to the Livingston Police Department. Mr. Romero called out from the truck that he wanted a wrecker, not the officer’s services. At approximately the same time, Patrolman Dixon received a radio report from the Big Timber sheriff’s office that the driver of the truck had been in an altercation in Columbus the night before and might be intoxicated and/or armed. Patrolman Dixon informed Mr. Romero he would call a wrecker. He went into Livingston, called Gray’s Road Rescue, and also picked up a Livingston police officer before returning to the scene of the accident.

When the officers returned to the truck, Mr. Romero was asleep or passed out on the seat. Patrolman Dixon rapped on the window and opened the door to waken Mr. Romero, who immediately became combative. The officers detected an odor of alcoholic beverage and arrested Mr. Romero for driving under the influence of drugs or alcohol (DUI). They handcuffed him, placed him under arrest, and put him in the patrol car. As Patrolman Dixon secured the truck, he noticed 3 or 4 beer bottles on the floor of the cab. He did not seize the bottles as evidence of DUI at that time.

When Mr. Romero was booked into the Park County jail, he had $1,500 in 50-dollar bills in his possession. After the booking, shortly before 7:00 a.m., Patrolman Dixon and the other officer went to Gray’s Road Rescue to get the beer bottles from the truck. It was being held inside a building. As Patrolman Dixon retrieved the beer bottles, he noticed a small amount of green, leafy substance on the floor. He seized that also. The substance field tested positive for marijuana.

Based upon the marijuana found on the floor of the pickup, Mr. Romero’s substantial pocket cash, and reports from Columbus that Mr. Romero was suspected of attempting to sell marijuana, Patrolman Dixon obtained a search warrant for the truck. He found three large bundles of marijuana in a tool box located under the locked hood of the pickup. Mr. Romero was then charged with intent to sell more than a kilogram of marijuana and criminal possession of dangerous drugs, both felonies. Mr. Romero remained incarcerated and the pickup remained impounded.

One month later, the owner of Gray’s called Patrolman Dixon to inform him that the pickup, which was then sitting out on the impound lot, had been tampered with. When Patrolman Dixon arrived, he saw that a piece of metal was hanging from the right rear wheel well. He looked in the wheel well and saw a wrapped bundle, similar to those seized earlier. A piece of metal had also been removed from the left wheel well and was lying on the ground. Patrolman Dixon phoned another officer for assistance. They searched the truck, finding 20 bundles of what proved to be marijuana in the wheel wells and behind the seat. This search was conducted without a warrant.

Mr. Romero was later released on bail while awaiting trial. During July and August of 1985, he met in Billings with an undercover drug enforcement officer several times to effect drug sales. These meetings resulted in three separate marijuana sales by Mr. Romero to the undercover officer.

Prior to trial, defense counsel filed a motion to suppress concerning all marijuana seized from the truck. He argued that a search warrant should have been obtained before the initial search because the truck was impounded and no exigent circumstances existed. Additionally, defense counsel argued the fruit of the poisonous tree doctrine barred introduction of the marijuana seized later. The motion was denied. The trial judge found the initial seizure of beer bottles and the trace amount of marijuana was justified under the plain view doctrine, the second seizure of three bundles was valid pursuant to a search warrant, and the final seizure of 20 bundles was valid under the plain view doctrine.

The State filed notice of intent to introduce evidence of other acts at trial, including testimony concerning Mr. Romero’s activities in Columbus, the recovery of one pound of marijuana from his Columbus motel room, and the July and August transactions with the undercover officer. Following briefing and argument on these matters the trial judge allowed the evidence to be presented at trial.

The other acts testimony was presented the first day of Mr. Romero’s trial. Both counsel and the trial judge forgot to present a cautionary instruction to the jury prior to the testimony. The second morning of trial, defense counsel argued in chambers that failure to deliver the cautionary instruction had caused irreparable damage to his client and a mistrial should be granted. The trial judge denied the motion for mistrial, determining that no marijuana had yet actually been introduced into evidence and the jury had been instructed previously not to conclude that testimony about bags or bundles of green, leafy substance proved that it was marijuana. The trial judge further determined that if any prejudice had occurred, a curative instruction the second morning of trial would correct it. Such an instruction was given prior to any testimony on the second day of trial.

The jury found Mr. Romero guilty of criminal possession with intent to sell dangerous drugs. He was sentenced to 16 years in the Montana State Prison.

I

Did the District Court err in denying the motion to suppress admission of the marijuana seized from the truck?

Mr. Romero argues that there were three separate violations of his right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Mont. Const. Article II, Section 11. The first violation occurred, he says, when the beer bottles were retrieved from the truck and the small amount of marijuana was found on the floor. Mr. Romero states that this search of his truck does not fit any of the four recognized exceptions to the general prohibition against automobile searches without warrants: the automobile exception, the exception for searches incident to arrest, inventory searches, and the plain view exception. Mr. Romero contends that a warrant should have been obtained before the officers retrieved the beer bottles.

The parties’ briefs contain lengthy arguments under several theories on whether the warrantless seizure of the beer bottles was constitutional. Because we conclude that this was a reasonably delayed plain view seizure, we will not discuss the other theories raised.

The police may seize evidence without a warrant when they have a prior justification for the intrusion, inadvertently come across incriminating evidence, and exigent circumstances render an immediate seizure imperative. State v. Godsey (1982), 202 Mont. 100, 103, 656 P.2d 811, 813. This is the plain view exception to the warrant requirement for searches and seizures. It is conceded that Patrolman Dixon could have seized the beer bottles as evidence of DUI under the plain view exception when he first saw them in the truck.

Mr. Romero’s position is that by waiting until the truck was impounded, Patrolman Dixon lost his opportunity to seize the bottles as evidence without a warrant. However, several jurisdictions have held that a delayed seizure of articles perceived in an arrested person’s vehicle at the time of arrest is proper as long as the delay is reasonable. State v. Jines (Mo. 1976), 539 S.W.2d 801; People v. Calhoun (1971), 30 Mich.App. 160, 186 N.W.2d 56; State v. Caldrone (1970), 205 Kan. 828, 473 P.2d 66, cert. denied, 401 U.S. 916, 91 S.Ct. 896, 27 L.Ed.2d 817; State v. Stewig (1968), 281 Minn. 331, 161 N.W.2d 673; State v. Perez (1968), 79 N.M. 417, 444 P.2d 602; Price v. United States (D.C.Cir. 1965), 348 F.2d 68, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125.

We agree that a seizure which is proper under the plain view exception may be delayed, so long as the delay is reasonable. After all, the focus of the Fourth Amendment is reasonableness. In this case, Patrolman Dixon determined not to seize the beer bottles from the truck stuck in the median of the interstate at 5:30 a.m. on an icy winter morning while the combative Mr. Romero waited in the patrol car. Instead, he went back to retrieve the bottles as soon as Mr. Romero was booked and incarcerated and the truck had been towed to an impound lot. We conclude that this delay was reasonable.

The defense cites this Court’s opinion in State v. Cripps (1978), 177 Mont. 410, 582 P.2d 312, as persuasive. In that case, defendants had arranged to sell drugs to an undercover police officer. When defendants arrived at the meeting place, police and sheriff’s officers converged on them. After all the defendants had been arrested and handcuffed, the officers conducted a search of defendants’ vehicle. This Court held that the search was not within the permissible scope of a search incident to an arrest or within the automobile exception. The Court distinguished that situation from one involved in a previous case:

“In Turner the defendant was arrested for D.W.I. While a police officer was driving defendant’s vehicle to the police station, he became aware of a beer bottle on the floor of the car. When he leaned over to pick it up, he noticed a bag of marijuana lying near the beer bottle. This Court held that. . . the marijuana was admissible . . . In Turner the police officer was legitimately inside defendant’s car to begin with. His discovery of the beer bottle and subsequent discovery of the marijuana was not because of an intent on his part to search the vehicle. Under the circumstances, what the officer did in Turner was reasonable; here it was not.”

Cripps, 582 P.2d at 318-19, distinguishing from State v. Turner (1974), 164 Mont. 371, 523 P.2d 1386. Distinguished from Cripps in the same way Turner can — the officer was legitimately inside the vehicle. Here, the officer was legitimately in the vehicle to seize the beer bottles which had been discovered earlier. This was not a search incident to an arrest, but a reasonably delayed plain view seizure of the beer bottles which led to a plain view seizure of the marijuana on the floor. Therefore, the trial court properly admitted into evidence the marijuana found on the truck floor.

The defense also asserts that there were no exigent circumstances to justify the officers’ entry into the impounded truck and seizure of the beer bottles. It argues that because of the 1 to IV2 hour delay, the plain view doctrine no longer applies and a warrant should have been obtained. On its face, this argument appears to have merit. It is premised upon the idea that the police had possession of the truck from the time of Mr. Romero’s arrest, and could have obtained a warrant. However, if a warrant should be required after the delay here, why should a warrant not be required upon any seizure which accompanies an arrest? Considering the nature of the plain view exception, we conclude that the exigent circumstances which would have allowed seizure of the bottles immediately after the arrest did not disappear during the short time between Mr. Romero’s arrest and the retrieval of the beer bottles.

The operator of Gray’s testified that the seizure of the beer bottles took somewhere between two and five minutes. The defense implies that this time estimate is somehow damaging to the State’s case. We do not agree. The two-to-five minute estimate does not establish anything more than that there was a careful seizure of the beer bottles and the consequently-discovered marijuana.

As a result of our conclusion on the admissibility of the small amount of marijuana from the truck floor, it follows that the 3 bundles of marijuana seized on December 12 and the 20 bundles seized in January were admissible into evidence. The warrant issued for the December 12 search was supported by the small amount of marijuana found on the floor of the truck, the reports from Columbus, and the $1,500 in 50-dollar bills in Mr. Romero’s possession at the time of arrest. We affirm the conclusion that his is adequate probable cause. The marijuana seized in January is not ‘fruit of the poisonous tree’ because of our conclusions that the first two seizures were valid. It was discovered when the officers were justifiably investigating the report that the impounded truck had been tampered with. It is admissible under the plain view exception.

We hold that the District Court properly admitted into evidence the marijuana seized from the truck.

II

Was the evidence of other acts properly admitted?

Mr. Romero asserts that testimony presented about his activities in Columbus on the day before he was arrested and about his sales of marijuana to the undercover agent while he was awaiting trial did not meet the guidelines set out in State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, on evidence of other crimes. He also contends that since the court failed to pre-instruct the jury to weigh the evidence about his activities in Columbus only for limited purposes, reversible error is present under State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

Evidence of acts which are inextricably or inseparably linked with the crime charged is admissible without regard to the rules governing “other crimes” evidence. State v. Riley (Mont. 1982), 199 Mont. 413, 649 P.2d 1273, 1279, 39 St.Rep. 1491, 1499. The testimony given on the first day of trial established that Mr. Romero had a bundle of what appeared to be marijuana in his possession while in a Columbus bar. It also establishes that he requested a driver for an unexplained trip to Canada, that one pound of marijuana was found in Mr. Romero’s motel room the morning after he checked out, and that he denied having a vehicle when questioned by the Columbus police. We conclude that these prior acts, which occurred a few hours before his arrest, are inextricably linked to the charged crime of possession of marijuana with intent to sell. Therefore, the Just and Jenson requirements do not apply to the testimony about Mr. Romero’s activities in Columbus.

Since the testimony of the undercover agent was presented the second day of trial, after the Just admonition was given to the jury, the Just requirement was met. The Jenson guidelines for “other crime” evidence are that there be 1) similarity between the crimes or acts; 2) nearness in time; 3) a tendency to establish a common scheme, plan, or system; and 4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. Jensen, 602 P.2d at 961. Mr. Romero argues that the first and fourth requirements were not met. We disagree. At trial, Mr. Romero’s counsel argued that there was no proof that Mr. Romero was aware of or responsible for the marijuana hidden in secret compartments of the truck. The undercover agent’s testimony went directly to Mr. Romero’s personal involvement with the similar crime of sales of large quantities of marijuana. We conclude that the District Court correctly determined that the probative value of this evidence is not substantially outweighed by the prejudice to Mr. Romero, and that the District Court properly allowed the testimony into evidence.

We affirm the District Court.

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

MR. JUSTICE SHEEHY,

dissenting:

The majority have rescued the conviction of the defendant from a terribly bungled police investigation, but at what cost to the law of searches and seizures.

All of the evidence retrieved from the truck should have been suppressed in this case.

The first search of the truck occurred when the vehicle was safely impounded in a wrecking yard at the orders of the police. Thus the usual exceptions to a warrantless seizure do not apply. There were no exigent circumstances. There was no inventory search incident to arrest. No reason appears why the officers did not apply first for a search warrant before entering the impounded truck.

The “plain view” doctrine does not save the intrusion into the truck without a warrant. If at the time of the arrest the officers had taken into their possession the articles then in plain view, their actions would have been permissible. That did not occur here. Instead the articles were seized as a result of a warrantless search of the truck at a time when the “plain view” rule did not apply.

The fact that the officers saw the articles in the truck would have been usable in an affidavit for a search warrant later. The rule is that articles, though in plain view, seized as part of a warrantless entry, must be suppressed on motion. See People v. Griffin (Colo. 1986), 727 P.2d 55; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

The illegal seizure of a marijuana leaf as part of a warrantless entry into the truck was used later by the police as part of their justification of probable cause to get the search warrant for the second seizure of contraband. The taint of the first illegal seizure comes over and poisons the second seizure.

The third seizure, that from the hidden panels and wheelwells, again occurred without a warrant, and no excusable attendant circumstances. Again the search was illegal, and the products of the illegal search should be suppressed.

Therefore I dissent.

MR. JUSTICE HUNT concurs in the dissent of MR. JUSTICE SHEEHY.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON MR. JUSTICE MORRISON,

license: Public Domain

text:
    STATE, ex rel. THOMAS and Donald CHISHOLM, Relators, v. The DISTRICT COURT OF THE SEVENTEENTH JUDICIAL DISTRICT of the State of Montana, In and For the COUNTY OF VALLEY, the Hon. R.C. McDonough, the District Judge Presiding, Respondents.
    No. 86-190.
    Submitted Sept. 9, 1986.
    Decided Dec. 30, 1986.
    731 P.2d 324.
    Erik B. Thueson, Great Falls, for relators.
    Habedank, Gumming, Best, Maltese & Savage; Robert Savage argued, Sidney, Russell McDonough, Dist. Court Judge, Glendive, for respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case is before the Court on a petition for a writ of mandamus pursuant to Section 27-26-101, MCA, Art. VII, Section 2 of the Montana Constitution which allows a petition of supervisory control, and Rule 17, M.R.App.Civ.P., which allows the issuance of extraordinary writs when there is not a speedy and adequate remedy by appeal. We decline to issue the writ.

The relators (Chisholms) filed a suit against Nelson Corscadden for conversion in the District Court of the Seventeenth Judicial District, in and for Valley County, Montana. Before the case came to trial, Corscadden filed for bankruptcy. Chisholms then filed a complaint against First National Bank of Glasgow, Montana, in the same court. The complaint alleging the Bank secretly conspired to deprive them of their property rights in certain property which is the subject of the action against Corscadden. Subsequently, Chisholms petitioned the bankruptcy court to abstain from asserting jurisdiction to allow them to proceed against Corscadden, but the court refused.

Shortly before the trial against the Bank was scheduled to begin, the Bank moved the District Court for partial summary judgment as to ownership of any disputed property. The District Court abstained from asserting jurisdiction over the issue of ownership, but refused to grant summary judgment unless Chisholms “diligently” refused to pursue an action in the bankruptcy court to determine ownership.

It is from this order the petition for writ ensued, asking us to order the District Court to withdraw its order and reschedule the trial of Chisholm v. First National of Glasgow.

A writ of mandamus “is an extraordinary remedy, not to be had merely for the asking, but to be obtained only in those rare cases wherein there is not any plain, speedy and adequate remedy in the ordinary course of law; . . .” State ex rel. Duggan v. District Court (1922), 65 Mont. 197, 199, 210 P. 1062, 1063. “[A] writ will issue only when there has been a showing that a clear legal duty exists and there is no speedy or adequate remedy in the ordinary course of law;. . .” State ex rel. Intake Water Co. v. Board of Natural Resources and Conservation (1982), 197 Mont. 482, 487, 645 P.2d 383, 386; Cain v. Department of Health (1978), 177 Mont. 448, 451, 582 P.2d 332, 334; Section 27-26-102(2), MCA.

“In determining whether action by a court or judge may be compelled by the writ of mandate, the essential questions to be decided are, whether the act sought to be compelled is one ‘which the law specially enjoins as a duty resulting from an office, trust or station,’ . . . and whether there is ‘a plain, speedy and adequate remedy in the ordinary course of law.’. . . A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it.”

State ex rel. County of Musselshell v. District Court (1931), 89 Mont. 531, 534, 300 P.2d 235, 236. Although an affirmative answer to the second question is dispositive, we note the District Court has a clear legal duty not to hear a case over which it has no jurisdiction.

More importantly, however, Chisholms have not shown they do not have a plain, speedy and adequate remedy in the ordinary course of the law. They were directed by the bankruptcy court to file an adversary complaint in the bankruptcy court, which they have failed to do.

They argue their remedy against Corscadden in bankruptcy court is limited, since he is bankrupt and there are several other creditors involved. A determination of ownership of the property by the bankruptcy court, however, does not preclude a remedy against the Bank. If it is determined the property belongs to Chisholms, they can proceed with their action against the Bank in state court. If it is determined the property belongs to Corscadden, Chisholms have the right of appeal from the bankruptcy court’s order; and may proceed in state court on allegations of the complaint not based upon the title to the disputed property.

Chisholms’ argument they will not be afforded due process of law under the bankruptcy court’s procedure is without merit. Provision for jury trials appears in the bankruptcy court’s rules, Federal statutes, 28 U.S.C. 1480, and case law. The dispute between Chisholms and Corscadden arises from the alleged breach of a written contract.

“[I]n actions sounding in account and contract there is a right to a jury trial under the seventh amendment to the Constitution. Matter of Kakolewski, 29 B.R. 572 (Bankr.D.Mo. 1983). Actions to establish liability on a debt require a jury trial. In re Lamb 29 B.R. 950, (Bankr.E.D. Tenn. 1983). In an action for breach of contract, a defendant has the right to have a jury determine whether the contract has been breached, and, if so, what are the damages. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44, (1961). In Dairy Queen the relief requested was purely equitable — an injunction and an accounting. However, because the basis of the action was a claim for breach of contract it was legal in nature, warranting trial. Id., at 479, 82 S.Ct. at 900.

In Re Energy Resources Co., Inc. (1985), 49 B.R. 278, 282. See also Beacon Theaters, Inc. v. Westover (1959), 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988. In any event, Chisholms have not yet requested a jury trial in the bankruptcy court, nor has the court ruled they are not entitled to one. Moreover, nothing in the record indicates that once an adversarial action is filed in bankruptcy court it will not be handled expeditiously.

The property in question is subject to the jurisdiction of the bankruptcy court by virtue of Corscadden’s filing a voluntary petition under Chapter 11 of the Bankruptcy Code. After the bankruptcy court determines whether the property is part of the bankrupt’s estate, further appropriate action may be brought.

We find there is a plain, speedy and adequate remedy available to Chisholms and therefore the petition for writ of mandamus is denied.

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

MR. JUSTICE MORRISON,

dissenting:

The majority opinion mistakenly assumes that title to certain Corscadden property is at issue in the state district court case. This is not true and the whole premise of the majority opinion is fallacious.

It is true that Chisholm sued Corscadden in state district court for conversion. In a separate action the plaintiff sued the bank for bad faith alleging that the bank conspired with Corscadden to take Chisholm’s property. In neither event is title to the property being litigated because a conversion action recognizes title in the other person but seeks damages for the wrongful taking of that property. Our review here is only of the action against the bank which is not a party to the bankruptcy action.

The bankruptcy court is charged with the responsibility of marshaling assets belonging to Corscadden and should do so. The issues to be litigated in state district court have nothing to do with the issues in the bankruptcy court.

The case in state district court with which we are here confronted, involves alleged actions by the bank unlawfully interfering with Chisholm’s property interests. If the allegations are true the bank was guilty of bad faith and is liable for punitive damages. It must be emphasized once more that title to the property is not an issue. Recognizing title to be in Corscadden, Chisholm alleges that the bank wrongfully took those interests from him and is liable for the reasonable value of the interests together with other damages.

The bankruptcy court itself has recognized that the issues in state district court are entirely different. By order dated April 3, 1986, the bankruptcy court stated:

“Corscadden is not a party to the state court action [between the bank and the plaintiffs] but is merely a potential witness . . . while the automatic state provisions of the bankruptcy code are intended to provide the debtor certain safeguards, the protection debtor seeks here is not within the statute. While some parallels may attach between the pending state court action and the debtor’s bankruptcy petition, debtor’s concerns of res judicata is unfounded due to the difference in party and prayer for relief.”

We are confronted with a situation where the bankruptcy court itself has said the issues are different and results of litigation between the bank and Chisholm will not affect proceedings in the bankruptcy court. Yet the state district court has refused jurisdiction to Chisholm so that Chisholm can proceed on his bad faith claim against the bank. Amazingly this Court approves.

I must express my extreme frustration with the treatment accorded these issues. The majority opinion does not address the issues in the case. Essential facts are not mentioned in the opinion. The casual reader of advance sheets would glance through the majority opinion without realizing how far off the mark the decision is. I have tried, without success, to intelligently debate the case in the Court conference. I am now left with being a voice in the wilderness on a case where the majority fails to even discuss the dispositive issues.

I dissent to the decision. I dissent to the decision-making process.


author: MR. CHIEF JUSTICE TURNAGE

text:
    DARRELL GIERKE, Claimant and Appellant, v. BILLINGS GAZETTE, Employer and Associated Indemnity Corporation, Defendant and Respondent.
    No. 86-217.
    Submitted on Briefs Aug. 21, 1986.
    Decided Dec. 30, 1986.
    730 P.2d 1143.

      Lynaugh, Fitzgerald, Hingle & Eiselein, Thomas J. Lynaugh, Billings, for claimant and appellant.
    Neil S. Keefer, Billings, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Gierke appeals from a March 6, 1986, decision of the Workers’ Compensation Court which denied Gierke’s claim for additional disability benefits. We affirm.

Gierke raises four issues for our review:

1. Did substantial evidence support the court’s decision that Gierke is not entitled to additional benefits?

2. Did the court fail to consider Gierke’s pain, age, education and work experience?

3. Did the court err when it characterized Gierke’s retirement as voluntary?

4. Did the court err when it placed the burden on Gierke to prove that he had no reasonable prospect of employment in the normal labor market?

On August 17, 1983, Gierke injured his right shoulder when he tripped while pulling a park bench off a street in Worland, Wyoming. All parties agree that Gierke was injured within the scope and course of his employment with the Billings Gazette. Gierke’s orthopedic surgeon, Dr. James Scott, diagnosed Gierke as having a rota-tor cuff tear to his right shoulder.

At the time of the injury, Gierke was fifty-six years old. He had been employed at the Billings Gazette for eighteen years. Before his injury and thereafter, he worked as county circulation and transportation manager. His duties consisted primarily of supervising four district managers in eastern Montana. These duties required Gierke to drive several hundred miles per week. Gierke testified that he spent 80 percent of his time on the road. On occasion, he also performed physical work, such as stacking papers. Gierke worked full-time from the date of his injury until the first operation on his right shoulder on January 16, 1984. Dr. Scott performed the operation.

Dr. Scott operated again on Gierke’s shoulder on February 6, 1984. Associated Indemnity accepted liability and paid Gierke temporary total disability benefits for January 16 and 17 and February 6 through 12,1984. On September 16,1985, Associated Indemnity also paid Gierke $13,850 for one hundred weeks of permanent partial disability. The payment was based upon Dr. Scott’s 35 percent impairment rating of Gierke’s upper extremity, which converted to a 20 percent impairment of the whole man.

In April, 1985, the Gazette offered a voluntary early retirement program to all of its 175 employees. Eighteen employees accepted the early retirement, including Gierke. Gierke’s effective date of retirement was April 17, 1985, when he received a lump-sum separation payment of $12,180. Four months later, Gierke filed a petition to increase his disability benefits.

Issue No. 1

Does substantial evidence support the court’s decision that Gierke is not entitled to additional disability benefits?

Judge Reardon of the Workers’ Compensation Court heard the testimony and observed the demeanor of all witnesses at trial. He reviewed all pleadings, exhibits and depositions. Judge Reardon concluded that the evidence failed to establish a causal relationship between the industrial accident and Gierke’s current complaints about his left shoulder pain.

On appeal, Gierke first contends that he was permanently totally disabled as a result of the injury to his right shoulder, which he claims has now spread to his left shoulder. Section 39-71-116(13), MCA, defines permanent total disability as:

“. . .a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.”

Gierke’s contention that he is permanently totally disabled is disputed by his own testimony, where Gierke discussed his plans to continue working:

“Q. What did you plan to do at the time you retired, if anything?
“A. I had no plans other than certainly the necessity to find employment, or to be employed some way some time. You know, I always enjoyed working. I have no intentions of discontinuing work.” Gierke elaborated on these employment plans later in his testimony:
“Q. What type of work do you feel you could do? I mean, all things considered, your training, experience.
“A. My training and experience, I think the strong suit would be sales of some nature.”

As further evidence of his ability to work, both Gierke and his Gazette supervisor testified that Gierke asked the Gazette for an “independent-haul contract” on the day of his retirement. Under this independent contract, Gierke would load bundles of newspapers at the Gazette each night and deliver them to selected drop points.

We also note that in December, 1984, Gierke was adequately performing his job, according to a job performance review by his supervisor. Gierke supported the review with his own testimony: “I felt that I was still in the same category of exceeding job standards.”

Furthermore, Gierke has consulted two doctors, Dr. Scott and Dr. Gary Ray, an osteopath. Both doctors testified that Gierke can do just about any type of work, as long as he avoids certain motions with his right shoulder on a prolonged basis.

Dr. Scott testified:

“Q. Basically, Doctor, so far as the right shoulder is concerned, he should avoid an activity where he has to have the right arm above the head, or the right arm working straight out?
“A. Yes.
“Q. And, other than that, he can do about anything that he would be capable of doing?
“A. That is a generous statement, but generally I would agree.”
Dr. Ray testified:
“Q. Now, Doctor, let’s get on the positive side of things a little bit. What can Mr. Gierke do, I would like your comments on that, I mean so far as day-to-day physical activities that would relate to work and the job market.
“A. The simple way of answering that would be to do everything that I have not mentioned, and, in fact, that is, there is an awful lot of things that can be done. If I had these two conditions, I would want an inside job, to begin with. And, of course, that gives us about eighty percent of the jobs available in Yellowstone County would be indoors. The limitations of the arm would be really very minor in terms of what things that you could not do ,. . . But any sort of desk work, any sort of sales work that did not require overhead work would be fine.”

The Workers’ Compensation Court properly concluded that Gierke was not permanently totally disabled as a result of his industrial accident. The conclusion was based on Dr. Scott’s medical evidence that Gierke had reached maximum recovery and that his symptoms were chronic. The conclusion also noted that both Gierke’s supervisor and Gierke himself testified that Gierke satisfactorily performed his employment duties from the date of his industrial injury until his retirement twenty months later.

In the alternative, Gierke contends that he is permanently partially disabled. Section 39-71-116(12), MCA, defines permanent partial disability as:

“. . . a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.”

Gierke has failed to meet the statute’s “preponderance of medical evidence” test. From the date of his injury to the date of his retirement, Gierke never reported any pain to his Gazette supervisor. Furthermore, Gierke did not tell Dr. Scott about his left shoulder pain until August, 1984, a year after the original injury to his right shoulder. Gierke’s pain claim is also disputed by Dr. Scott. In both a letter to Gierke and in his deposition, Dr. Scott concluded that the left shoulder pain was unrelated to Gierke’s industrial injury:

“Q. Now, Doctor, I believe you state on page four, which would be the January 21st letter, that you don’t see any connection between his left shoulder — left neck pain and the accident that he had in August of ‘83, when he dislocated his right shoulder, is that correct?
“A. Yes. sir.
“Q. And that would be your opinion, that the two were unrelated?
“A. Yes, sir.
“Q. Now is this consistent, Doctor, with his lack of reporting pain anywhere else for six or eight months, well, a year really, after the dislocation in August, of 1983?
“A. Yes.
“Q. And this is still your opinion as of today?
“A. Yes, it is.”

Dr. Scott also testified that Gierke’s new pain in both shoulders is distinct from the pain resulting from Gierke’s industrial injury:

“Q. Now, prior to his hospitalization, his pain was in his right shoulder, and it came from the rotator cuff tear, I take it.
“A. Yes, sir.
“Q. And the pain that we are talking about on January 8th, of 1985, nearly a year later, is different, and it is in both shoulders?
“A. Well, yes sir.
“Q. And at this point at least you still don’t have it diagnosed?
“A. No, sir.”

In reviewing Gierke’s case, the substantial evidence test was defined in Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 86-87, 580 P.2d 450, 452-453. We held:

“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of the evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn that decision.”

Gierke failed to establish a causal connection between his right shoulder injury and his new pain in both shoulders. Gierke failed to support his claim that he is additionally disabled by his right shoulder injury. On the contrary, the abundance of evidence from Gierke’s doctor and from Gierke himself indicates that his right shoulder is not greatly disabling. Gierke testified that he wants to work, and both doctors testified that he is able to work.

In view of such substantial evidence, and applying the Steffes test, we hold that the evidence fully supports the decision of the Workers’ Compensation Court.

Issue No. 2

Did the court fail to consider Gierke’s pain, age, education and work experience?

Gierke contends that the Workers’ Compensation Court ignored testimony by Gierke, Gierke’s wife and Gierke’s co-worker about his pain and insomnia. Gierke also claims that the court failed to consider Gierke’s age, education and work experience.

We find no merit in Gierke’s contentions. In its Findings of Fact, the Workers’ Compensation Court specifically notes Gierke’s age and education under a section entitled “Claimant”:

“2. Claimant was born on January 2, 1927. At the time of the hearing, he was 58 years of age.
“3. He is married and has one minor child living at home.
“4. Claimant did not complete high school.”

The Workers’ Compensation Court further discusses Gierke’s work experience in a section entitled “Claimant’s Employment With The Gazette”:

“5. Claimant went to work for the Billings Gazette in January, 1967. After a series of promotions, he became the County Circulation and Transportation Manager for the Gazette. His job entailed supervising four district managers and all independent-haul contracts. Claimant testified that his job included many different duties, including hauling papers from the Gazette to the delivery area if the responsible contractor was unable do to so.

In its Conclusions of Law, the Workers’ Compensation Court refers to Gierke’s overall condition, including his new pain:

“Both Dr. Scott and Dr. Ray testified as to the types of work claimant can do and which types he should avoid. This testimony takes into account claimant’s overall physical condition, including any and all pains not related to the industrial injury of August 17, 1983. Even so, both doctors testified that claimant can do just about any type of work, so long as he avoids certain motions with his right shoulder on a prolonged basis.
“In sum, the right shoulder, standing alone, is not greatly disabling. Even when other factors are considered, there is a great deal that claimant can do.”

Gierke’s assertion that the court failed to consider all factors is directly rebutted by the evidence and the well-written decision of the Workers Compensation Court. The court carefully considered all factors and fully supported its conclusions. Gierke’s contention on this issue has no merit.

Issue No. 3

Did the court err when it characterized Gierke’s retirement as voluntary?

Gierke argues that his retirement was not voluntary because the Gazette created and offered the plan to its employees, rather than the plan being inspired by Gierke himself. Gierke further contends that the plan was not voluntary because the Gazette encouraged the plan and thus exerted subtle pressure. In his brief, Gierke omits any mention of the $12,180 lump-sum payment he received in consideration for his early retirement.

The Gazette contends that Gierke retired of his own free will and that his job did not seriously aggravate the pain in his shoulder. As we discussed in the first issue, Gierke’s injury did not prevent him from performing his job at the Gazette. The Workers’ Compensation Court denied permanent disability benefits to Gierke because he could have continued to work for the Gazette if he had not voluntarily retired. As the court stated: “He was adequately performing his duties and was under no threat of being fired when he elected to take an early retirement.” Both Dr. Scott and Dr. Ray concluded that Gierke could continue to drive his company pick-up truck, which was equipped with power options, air conditioning and tilt-wheel steering.

Although Gierke contends that the Gazette forced him to retire, his contention is directly rebutted by his own testimony:

“Q. Now, I am going to ask you this, Mr. Gierke: Were you fired by the Gazette, or did you quit?
“A. I don’t feel I was fired. Definitely not.”

Later in his testimony, Gierke stated:

“Q. Okay. Did Michel or anyone else ever say, “Darrell, either you retire or we’re going to fire you?”
“A. No sir, they did not.”

Gierke alleges that his retirement was made under duress. However, the voluntary retirement program was offered to every Gazette worker, with no special focus on Gierke. The Workers’ Compensation Court properly concluded, based upon testimony by Gierke and his Gazette supervisor, that Gierke voluntarily retired. In consideration for his retirement, he received the $12,180 payment.

We affirm the Workers’ Compensation Court’s judgment. Gierke’s retirement was not related to any failure in his job performance. His retirement was voluntary and uncoerced.

Issue No. 4

Did the court err when it placed the burden on Gierke to prove that he has no reasonable prospect of employment in the normal labor market?

In the six months following his retirement on April 17, 1985, until the compensation hearing on October 29, 1985, Gierke never looked for a job. He testified:

“Q. Now, have you worked at all since you left the Gazette?
“A. No, sir, I have not.
“Q. Have you registered at the employment office?
“A. No, sir, I have not.”

In its decision, the Workers’ Compensation Court outlined the burden of proof on Gierke, citing Metzger v. Chemetron Corp. (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 1035, 41 St.Rep. 1788, 1790: “To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment duties associated with those jobs because of his work-related injury.” Gierke failed to introduce such substantial credible evidence.

On the contrary, Gierke voluntarily retired from one segment of his normal labor market and then failed to look for work in the remainder. As we have repeatedly held, the general rule is that the claimant bears the burden of establishing a right to compensation. Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1105. Gierke repeatedly testified about his desire to work. Both doctors testified about his ability to work. When such evidence is combined with Gierke’s failure to seek employment, Gierke’s claim of “no reasonable prospect of employment” is without merit.

We affirm the judgment of the Workers’ Compensation Court on all issues.

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


author: Mr. Justice Gulbrandson

text:
    DAVID EDWARD BICK, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, DIVISION OF MOTOR VEHICLES, Respondent and Respondent.
    No. 86-282.
    Submitted on Briefs Sept. 25, 1986.
    Decided Dec. 30, 1986.
    730 P.2d 418.

      French, Mercer, Grainey & Duckworth, Edward K. Duckworth, Ronan, for petitioner and appellant.
    Mike Greely, Atty. Gen., Kathy Seely, Asst. Atty. Gen., Helena, for respondent and respondent.
   Mr. Justice Gulbrandson

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Twentieth Judicial District in and for Lake County, Montana. The court affirmed a decision of the Department of Justice, Division of Motor Vehicles, suspending petitioner’s driver’s license. We affirm the order of the District Court.

Dave Edward Bick, appellant, received written notice from the Montana Department of Justice, Motor Vehicle Division, Driver Improvement Bureau (Bureau) that it intended to suspend his driving privileges from March 12, 1985, until September 12, 1985. Appellant could obtain a restricted probationary license if he attended a driver counseling session. The Bureau based its action on Section 61-2-302, MCA, Section 61-5-206, MCA, and Rule 23.3.202, Administrative Rules of Montana (ARM).

Appellant attended the driver counselling session. He then petitioned the Bureau, pursuant to Section 61-5-206(3), MCA, for a hearing on its action to restrict his driving privileges, where he moved the Bureau to rescind the order of suspension or probation. He filed exceptions to the hearing examiner’s proposed decision denying his motion to rescind. The final decision of the Driver Improvement Committee, however, denied the motion to rescind.

Appellant petitioned the District Court for a review of the decision. The issues were briefed by the parties and the District Court affirmed on two separate grounds: (1) the driver rehabilitation point system, Rule 23.3.202, ARM, was expressly authorized by the legislature in Section 61-2-302(1), MCA, and impliedly authorized in Section 61-5-206(l)(b), MCA, and (2) appellant’s driving record without application of the point system is sufficient evidence to support suspension of his license. This appeal followed.

We are presented with three issues:

(1) whether the Department of Justice had authority to promulgate Rule 23.3.202, ARM;

(2) whether Rule 23.3.202, ARM, is a valid administrative rule; and

(3) whether appellant’s driving record without application of the point system is a proper basis for suspension of his driver’s license.

Administrative agencies enjoy only those powers specifically conferred upon them by the legislature. Bell v. Department of Licensing (1979), 182 Mont. 21, 22, 594 P.2d 331, 332. Administrative rules must be strictly confined within the applicable legislative guidelines. McPhail v. Montana Board of Psychologists (1982), 196 Mont. 514, 516, 640 P.2d 906, 907. Indeed, it is axiomatic in Montana law that a statute cannot be changed by administrative regulation. Michels v. Department of Social and Rehabilitation Services (1980), 187 Mont. 173, 178, 609 P.2d 271, 273. We look to the statutes to determine whether there is a legislative grant of authority. The District Court found Rule 23.3.202, ARM, was authorized under express authority of Section 61-2-302(1), MCA, and impliedly authorized in Section 61-5-206(1) (b), MCA.

Section 61-2-302(1), MCA, specifically authorizes the Department of Justice to establish by administrative rules a driver rehabilitation and improvement program.

“Establishment of driver improvement program — participation by offending drivers. (1) The department of justice may establish by administrative rules a driver rehabilitation and improvement program or programs which may consist of classroom instruction in rules of the road, driving lechniques, defensive driving, driver attitudes and habits, actual on-the-road driver’s training, and other such subjects or tasks designed to contribute to proper driving attitudes, habits, and techniques.”

It is not our job to redesign the program should we find it lacking in any respect, but merely to determine whether or not the Department acted reasonably and within its delegated authority. The statute clearly grants rule making authority to the Department.

Section 61-5-206(l)(b), MCA, does not contain specific rule making authorization. It says in pertinent part:

“Authority of department to suspend license or driving privilege or issue probationary license. (1) The department is hereby authorized to suspend the license or driving privilege of an operator or chauffeur without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:
“(b) has been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways;”

Nonetheless, a grant of authority to suspend a person’s driver’s license carries with it the implication that a procedure must be established for doing so. So long as “[t]he interpretation is not plainly outside the board’s authority ... we are therefore bound by it.” Douglas v. Beneficial Finance (9th Cir. 1972), 469 F.2d 453, 456, n. 2, (quoting Immigration and Naturalization Service v. Stanisic (1968), 395 U.S. 62, 72, 89 S.Ct. 1519, 1526, 23 L.Ed.2d 101, 109). We find no evidence the Department exceeded its legislative grant of authority by promulgating Rule 23.3.202, ARM.

We next must examine the rule to determine its validity. The rule sets out a system which assigns a given number of points for various kinds of traffic violations. Accumulation by a driver of a certain number of points over a period of time results in suspension or revocation of his driver’s license. Appellant contends the point system is out of harmony and in conflict with Section 61-5-206(1), MCA, because it engrafts additional requirements. “[N]o rule adopted is valid . . . unless: (a) consistent and not in conflict with the statute; and (b) reasonably necessary to effectuate the purpose of the statute . . .” Section 2-4-305(6), MCA.

A valid rule must meet both prongs of a two-prong test to determine whether or not it harmonizes with its enabling legislation. It must not engraft additional and contradictory requirements on the statute, and it must not engraft additional non-contradictory requirements on the statute which were not contemplated by the legislature. Bell v. Department of Licensing, supra, 182 Mont. at 23, 594 P.2d at 333. The rule also must be reasonably necessary to effectuate the purpose of the statute. Board of Barbers of the Department of Professional and Occupational Licensing v. Big Sky College (Mont. 1981), 626 P.2d 1269, 1270, 38 St.Rep. 621, 623. We do not find that the point system is either a contradictory or non-contradictory additional requirement on the statute.

“It is a ‘rule of thumb’ adopted for the convenience of the administration of the statute in order to bring before the department for hearing those who may justifiably have their license suspended, serving as a prima facie guide when the discretion of the administering officials would be invoked. As such, it provides a workable method for effectuating legislative purposes.”

State v. Birmingham (1964), 95 Ariz. 310, 390 P.2d 103, 106. “The decision to use objective rules . . . provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers.” Dixon v. Love (1977), 431 U.S. 105, 115, 97 S.Ct. 1723, 1729, 52 L.Ed.2d 172, 182. The point system increases the fairness of the suspension process, is consistent with the statute, and is necessary to effectuate the purpose of the statute.

Appellant also argues the District Court erred in its conclusion his driving record without application of the point system is sufficient evidence to support suspension of his license. He contends the legal conclusions were not supported by factual findings. The District Court clearly considered this argument before issuing its order:

“Although the petitioner’s driving record was not specifically set forth in the findings of fact, the driving record was before the hearing examiner and the drive improvement committee and is quite sufficient to support the conclusion of law, without application of any point system, that four speeding convictions, one careless driving conviction and one improper passing conviction in a 25 month period shows a disregard for traffic laws and a disregard for the safety of other persons on the highway with such frequency of serious offenses as to support the department’s suspension of petitioner’s driver's license. This court concurs in that conclusion and affirms the final decision of the department.”

The facts speak for themselves. Following the suspension of his driver’s license, appellant requested and was given a hearing. His driving record was submitted by the Department as its evidence in support of the suspension of his license but appellant submitted no evidence refuting the convictions or disputing his driving record. It was incumbent upon him to prove he was not convicted or that the records or computations were not correct.

In fact, after the appellant’s official driving record was offered, no more was needed. In re France (1966), 147 Mont. 283, 287, 411 P.2d 732, 734. Appellant had his day in court, or in the case of bond forfeitures, his opportunity for a day in court. There were sufficient factual findings to support the court’s conclusion that appellant “shows a disregard for traffic laws and a disregard for the safety of other persons on the highway with such frequency of serious offenses as to support the Department’s suspension of [his] driver’s license.”

Appellant’s license was not suspended to punish him, but for the protection of the public. State ex rel. Griffith v. Brustkern (Mont. 1983), 202 Mont. 438, 658 P.2d 410, 412, 40 St.Rep. 194, 197. The giving or revocation of a driver’s license is within the police power of the State. In re France, supra, at 288, 411 P.2d at 734.

We affirm.

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


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SANDRA MILLS STEWART STOKOE, Defendant and Appellant.
    No. 86-259.
    Submitted on Briefs Aug. 14, 1986.
    Decided Dec. 30, 1986.
    730 P.2d 415.
    Nye & Meyer, Billings, for defendant and appellant.
    Marc Racicot, County Prosecutor, Helena, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Sandra Stokoe appeals a Yellowstone County District Court jury verdict convicting her of the criminal sale of dangerous drugs to Lee Jonas.

Two issues are raised on appeal:

(1) Whether there is substantial evidence to support the conviction for sale of dangerous drugs?

(2) Whether a purchaser is an accomplice to a seller of dangerous drugs thereby requiring. independent corroboration of the purchaser’s testimony to sustain the seller’s conviction?

We affirm.

On November 2, 1984, undercover agent Geary of the Montana Criminal Investigation Bureau was contacted in Billings, Montana, by Lee Jonas who offered to sell him an ounce of cocaine. Two other agents and two Yellowstone County Sheriff deputies in separate vehicles began surveillance of Jonas’ residence at 3:55 p.m. on November 5, 1984, or approximately sixteen minutes before agent Geary arrived wearing an electronic transmitting device pursuant to court order. During the operation, the surveillants heard several references to “Sandy” [Stokoe] and “Sandy’s place.” Jonas’ girlfriend met agent Geary at the house and said that Jonas would be back in a few minutes. Jonas arrived at 4:23 p.m. and displayed a sample of the cocaine for Geary. Jonas said the sample had come “from Sandy’s” and that he had to go back to Sandy’s house to get the ounce of cocaine. At 4:32 p.m. the surveillants watched Jonas and his girlfriend exit their residence and drive to Stokoe’s residence. Agent Geary followed in his car and parked in front of Stokoe’s house, remaining in the car. Jonas and his girlfriend testified that Stokoe let both of them into her house. They observed that Stokoe’s five year old daughter was the only other person present. Jonas added that Stokoe, his aunt, had expected him. Jonas went to a back bedroom of the house, weighed out the cocaine on a scale, and put it into a baggie. Approximately four minutes after arriving, (4:59 p.m.) Jonas’ girlfriend came out of the house and entered agent Geary’s vehicle demanding that he pay her $2,400, drive to nearby Trails End Park to avoid curious neighbors and wait for Jonas to arrive with the cocaine. Geary paid the girlfriend $2,400 at this time. Before the girlfriend left the house, the surveillant party could see Jonas, the girlfriend, and an unknown female adult having a discussion. A surveillant agent followed Geary and Jonas’ girlfriend to the park where they were met by Jonas seven minutes later. Geary entered Jonas’ vehicle upon Jonas’ hand signal to do so. Jonas handed over the ounce of cocaine and Geary paid him $50 more. Jonas told Geary that he [Geary] was supposed to get $100 back from the girlfriend. Geary walked back to his car where the girlfriend gave Geary $100. At this point the girlfriend walked back to Jonas’ vehicle. Jonas and the girlfriend then drove back to the Stokoe house under surveillance and were let into the house by Stokoe. The surveillance was then terminated. As for the payment arrangement, Jonas testified as follows:

“Q: How did you reach the fact situation that you gave her [Stokoe] $2,250 and you kept $100?
“A: I told Patrick Geary that I could get it for him for $2,350, because Sandy had already told me I could get it from her for $2,250.
“Q: So you had agreed to pay her $2,250 for it [the cocaine]?
“A: Yes.
“Q: And you did that after you got the money from Officer Geary.
“A: That I agreed to pay her for it?
“Q: No, no, you actually made the payment after you got back there. [To Stokoe’s house.]
“A: Yes, I did.”

As to the source of the cocaine, Jonas further testified:

“Q: Did you have more than one other source?
“A: No, I did not.
“Q: What prompted you to choose to buy cocaine or allegedly buy cocaine from Sandy Stokoe versus from your other source?
“A: Availability.
“Q. What do you mean availability?
“A: She [Stokoe] had it and my other source didn’t.”

Jonas pleaded guilty to the sale of cocaine to agent Geary and a marijuana sale to Geary on September 28, 1984. In exchange for a statement, the State recommended a three-year probationary sentence which was approved by the District Court. The Montana State Crime Lab positively identified the substance as cocaine.

The test for the sufficiency of the evidence to support the judgment of conviction is whether there is substantial evidence to support the conviction, viewed in a light most favorable to the State. State v. Lamb (1982), 198 Mont. 323, 646 P.2d 516. “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Kutnyak (Mont. 1984), [211 Mont. 155] 685 P.2d 901, 910-911, 41 St.Rep. 1277, 1289.

Section 45-9-101(1), MCA states as follows:

“A person commits the offense of criminal sale of dangerous drugs if he sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away or manufactures, prepares, cultivates, compounds, or processes any dangerous drug as defined in 50-32-101.” The compiler’s comment to Section 45-9-101, MCA, reveals the broad reach of the statute. “Although this section is entitled ‘Criminal Sale of Dangerous Drugs’, it includes all types of transfers and activities preparatory to actual sale . . .’’In State v. Davis (Mont. 1980), 620 P.2d 1209, 1215, 37 St.Rep. 1958, 1964, we said:
“[T]he Montana legislature did not intend that a sale should be complete merely upon the exchange of money. Delivery appears to be an integral part of the sale of drugs, particularly when we consider that the statutes are aimed primarily at stopping the transfer and distribution of dangerous drugs. (Emphasis added.)”

We find that, when viewed in a light most favorable to the State, there was substantial evidence to support the conviction. Stokoe knowingly and intentionally transferred possession of an ounce of cocaine to Jonas for $2,250 and therefore her actions met the test set forth in Davis. Stokoe’s involvement in the crime of selling cocaine was abundantly clear. She gave a sample of the cocaine to Jonas for inspection purposes and possessed a scale to measure out particular quantities of cocaine for subsequent distribution. As the Davis case indicates, Section 45-9-101, MCA, was enacted to stop the transfer and distribution of dangerous drugs such as cocaine. We see no reason to overturn the jury’s decision.

On the issue of whether a purchaser is an accomplice to a seller of dangerous drugs thereby requiring independent corroboration of the purchaser’s testimony to sustain the seller’s conviction, we refer to Section 45-2-302, MCA:

“A person is legally accountable for the conduct of another when:
“(1) having a mental state described by the statute defining the offense, he causes another to perform the conduct, regardless of the legal capacity or mental state of the other person;
“(2) the statute defining the offense makes him so accountable; or
“(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense . . .”

It is generally held that a purchaser of illegal drugs is not an accomplice to the crime of selling drugs. State v. Nasholm (1979), 2 Or.App. 385, 467 P.2d 647; State v. Warnock (1972), 7 Wash. App. 621, 501 P.2d 625; Lujan v. State (1969), 85 Nev. 16, 449 P.2d 244; State v. Anderson (N.D. 1969), 172 N.W.2d 597.

In this case, Jonas was not only a purchaser of drugs, but also a seller. A review of similar cases from other jurisdictions and other authority leads us to conclude that Jonas’ status does not constitute that of an accomplice.

In Wheeler v. State (Wyo. 1984), 691 P.2d 599, the defendant was convicted of delivery of cocaine. The buyer of the cocaine was arrested and charged with delivery and possession of cocaine. The charges were dropped in exchange for the buyer’s testimony against the defendant. The defendant argued that the buyer of the cocaine, by virtue of being charged with violating the same statute as the defendant, i.e. delivery of a controlled substance, was an accomplice of the original sale made to him. The Wyoming Supreme Court disagreed:

“The mere fact that a buyer of narcotics turns around and sells them to someone else, thereby bringing himself within the delivery statutes, does not make him an accomplice of the original sale made to him. There is a definite distinction between a seller and a buyer. Their separate acts may result in a single transaction, but the buyer is not aiding the ‘selling act’ of the seller and the seller is not aiding the ‘buying act’ of the buyer. The buyer and seller act from different poles. They are not in association or confederacy. An accomplice is one who participates in the same criminal conduct as the antithesis of the defendant, albeit the conduct of both is involved in a single transaction.”

Wheeler, 691 P.2d at 602. The Wheeler court cites Wharton’s Criminal Evidence (13th ed. 1973), for its position that a purchaser of narcotics is not an accomplice of the defendant charged with selling the narcotics. Wheeler, 691 P.2d at 602.

In State v. Fox (S.D. 1981), 313 N.W.2d 38, the defendant was convicted of possession and distribution of marijuana and distribution of cocaine. A paid informant approached a third person who in turn contacted the defendant for the drugs subsequently sold to the informant by the third person. As in the case before us, the transaction between the defendant and the third person did not occur in the immediate presence of the informant. A unanimous South Dakota Supreme Court held that the third person was a purchaser and a seller of drugs but could not be considered an accomplice. The Court concluded that “the crimes of [the third person] and appellant involved separate and distinct acts.” Fox, 313 N.W.2d at 41. Hence, no corroboration of the third person’s testimony was required to sustain the conviction.

As the Wheeler court noted, there is a definite distinction between a seller and a buyer, and even though their separate acts may result in a single transaction, the buyer does not aid the “selling act” of the seller, and the seller does not aid the “buying act” of the buyer. Jonas did not aid Stokoe in the selling of cocaine; he was only interested in obtaining possession of the cocaine through its purchase. Hence Jonas and Stokoe did not share the same criminal purpose as „ required under the accountability statute. Since Jonas cannot be viewed as an accomplice, his testimony need not be corroborated.

Affirmed.

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


author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

text:
    DOUGLAS PLOUFFE, Plaintiff and Respondent, v. BURLINGTON NORTHERN, INC., A Delaware Corp., Defendant and Appellant.
    No. 86-285.
    Submitted on Briefs Sept. 25, 1986.
    Decided Dec. 30, 1986.
    Rehearing Denied Jan. 27, 1987.
    730 P.2d 1148.

      Jardine, Stephenson, Blewett & Weaver, James E. Aiken, Great Falls, for defendant and appellant.
    Erik Thueson, Great Falls, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Burlington Northern, Inc. appeals from an order by the District Court of the Eighth Judicial District, Cascade County, granting plaintiff Doug Plouffe’s motion for summary judgment on the issue of liability under the Federal Employers Liability Act (Title 45 U.S.C., Section 51, et seq.) and denying defendant’s motion for a new trial. We affirm.

Three issues are raised on appeal. The first is whether the trial court erred in granting Plouffe’s motion for partial summary judgment on the issue of liability under the Federal Employers Liability Act. The second is whether the trial court erred in denying Burlington Northern’s motion for a new trial. The final issue is whether the trial court acted properly in denying Plouffe’s motion for pre-judgment interest.

This action began when Plouffe sued his employer Burlington Northern (BN) under the Federal Employers Liability Act to recover for four separate on-the-job injuries received in 1979-1981. Plouffe maintained that his injuries were the result of BN’s admitted violation of portions of the Federal Safety Appliance Act, 45 U.S.C. Section 1, et seq. Hence, he argued, partial summary judgment on the issue of liability was proper, as BN’s admissions precluded their raising questions of material fact. BN responded that a grant of partial summary judgment was improper in that it removed from consideration the issue of causation, contributory negligence and whether the defects existed.

The District Court granted Plouffe’s motion for summary judgment on the liability issue, agreeing with Plouffe that the railroad had admitted prior to trial that Plouffe’s credibility concerning the accidents was not an issue and that defects were in fact the only explanation for the injuries. The court left the issue of medical causation to the jury.

Plouffe’s complaint and motion for partial summary judgment were based on the Safety Appliance Act, 45 U.S.C. Section 1, et seq. This federal safety statute was enacted to protect railroad employees and the public from injury caused by defective equipment on cars and locomotives. Urie v. Thompson (1949), 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. In addition to this recognized end, the statute also has the effect of facilitating recovery under the Federal Employers Liability Act, since violation by a carrier of a specific safety requirement is held to constitute negligence as a matter of law, regardless of a showing of negligence on the employee’s part. Urie; Coray v. Southern Pacific Co. (1949), 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208. The Safety Appliance Act “imposes absolute liability upon any carrier [violating] it.” Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 355, 654 P.2d 972, 975. See, e.g. Anderson v. Burlington Northern, Inc. (Mont. 1985), [218 Mont. 456,] 709 P.2d 641, 42 St.Rep. 1738; McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 571 P.2d 784. Further, contributory negligence is not a factor in determining liability if the Safety Appliance Act has been violated. Title 45, U.S.C. Section 53 states:

“. . . no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

“The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence.” Rogers v. Missouri Pacific Railroad Co. (1957), 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, citing 45 U.S.C. Section 51. To prove liability as a matter of law, Plouffe need only to have established a “defect or insufficiency” due to the railroad’s negligence. Title 45 U.S.C. Section 51.

With these basic precepts in mind, we turn to the issue raised of the propriety of the District Court’s granting partial summary judgment on the issue of liability for each of the injuries in question.

The first of the four accidents occurred on March 28, 1979, when Plouffe was working as a switchman in the Havre yard. He and his co-workers were moving a string of cars onto another track when he noticed that a flat car in the string would not roll properly. This is ordinarily caused by sticking brakes. To eliminate the problem, Plouffe first tried bleeding the air from the brakes. When this did not work, he attempted to release the brakes by turning the handbrake located on the end of the car. However, the handbrake was stuck and would not turn. (The handbrake is a vertical shaft with a wheel at its top. The wheel is perpendicular to the shaft.) Plouffe knew that sometimes the chain to the brake shaft would stick or get tangled and prevent the handbrake wheel from turning. As Plouffe bent to rattle the chain located under the car, the handbrake shaft slipped down, causing the handbrake wheel on the top of the shaft to hit Plouffe on the back of the head, knocking him to the ground. There were no witnesses to this accident.

The railroad raises several contentions. First, they argue that the issue of contributory negligence should have been submitted to the jury. Second, they claim that there was no proof that the handbrake was defective. Finally, they claim that Plouffe’s credibility was an issue of fact that should have been decided by a jury but was wrongfully precluded by summary judgment.

Title 45, U.S.C. Section 11 provides that “[a]ll cars must be equipped with . . . efficient hand brakes . . .” Compliance with Section 11 is “not simply a question of whether the brake is efficient; it is necessary that the brake can be operated with safety.” Ballard v. Sacramento Northern R. Co. (1932), 126 Cal.App. 486, 14 P.2d 1045. If an inefficient brake causes injury, there is inescapable liability under the Federal Safety Appliance Act (FSAA), Title 45, U.S.C. Sections 11-16.

After the accident, Plouffe filed a personal injury report with the railroad. A train master for BN conducted a supervisory investigation which confirmed that the brake shaft wheel dropped and hit Plouffe on the back of his head. Burlington Northern never inspected the handbrake after the accident, although under its own operating and safety rules it had a duty to do so. Further, BN, through the person it designated as a safety expert, admitted that if the handbrake shaft and wheel came down, as it did without the latch being released, it would be defective. These facts, undisputed by BN, provide ample evidence to support the District Court’s finding that the FSAA was violated because the equipment was defective. Further, the law provides that if this Act has been violated, then contributory negligence is not a factor in determining liability. In short, an inefficient brake causes injury, there is inescapable liability. Title 45, U.S.C. Sections 11-16.

The United States Supreme Court discussed the absolute liability features of the Safety Appliance Act in Lilly v. Grand Trunk Western R. Co. (1943), 317 U.S. 481, 485-86, 63 S.Ct. 347, 87 L.Ed. 411, stating:

“Negligence is not the basis for liability under the act. Instead it ‘imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof in proper condition and safe to operate . . . without unnecessary peril to life or limb. (Citations omitted.) Any employee engaged in interstate commerce who is injured by reason of a violation of the Act may bring his action under the Federal Employers Liability Act, charging the violation of the Boiler Inspection Act. The Act, like the Safety Inspection Act, is to be liberally construed in light of its prime purpose, the protection of employees and others by requiring the use of safe equipment.”

In the instant case, absolute liability was properly imposed. The defective condition of the brake was undisputed and BN was unable to support its argument that a genuine issue of material fact existed. Hence, the District Court properly ruled that Plouffe was entitled to judgment as a matter of law.

BN also claims that summary judgment foreclosed raising Plouffe’s credibility regarding the accident. This claim is inconsistent with the railroad’s pre-trial activity where, during discovery, it did not dispute Plouffe’s testimony about how the accident occurred. In fact, the railroad’s claims manager made the following admissions during the taking of his deposition:

“Q. (By Plouffe’s attorney): There is nothing in the claim file indicating that the accident occurred in any other way; correct? A. Not that I am aware of, no.
“Q. Do you know of any reasons to doubt that is precisely what occurred in this instance? A. Doubt that Plouffe was hit on the head with the brake?
“Q. Right. A. No.”

Shortly following this dialogue, the railroad’s attorney added the following:

“Q. (By Plouffe’s attorney) ... Is it Burlington Northern’s position that they don’t dispute Mr. Plouffe’s description of how the accident occurred?
“A. (By BN’s attorney) Based upon all the information I have in my review of the file, my discussion with (BN’s claims manager), it’s my understanding that there is no basis at this point that we are aware of nor witnesses who will say that it didn’t happen the way Mr. Plouffe says it happened.
Cíjfc * *
“I will make it clear, however, that Burlington Northern certainly disputes the nature and extent of the injuries that relates to his back problems. You understand that?
“Q. I understand you are debating causation as far as that accident goes — A. And its relationship to the overall problem, correct.
“Q. — but we are not fighting over how the accident occurred. That’s what I am here for is to find that out. A. I am not aware of anything that suggests that Mr. Plouffe isn’t telling the truth or that anybody saw it happen differently.”

Under well established concepts of law, a party cannot take one position during pretrial discovery and then change its position at the time of trial or on appeal. Under Section 26-1-601, MCA, the following is a conclusive presumption:

“The truth of a declaration, act, or omission of a party, as against that party in any litigation arising out of such declaration, act or omission, whenever he has, by such declaration, act or omission, intentionally led another to believe a particular thing true and to act upon such belief.”

Here, the railroad claimsman and attorney clearly lead Plouffe to believe that the railroad was not contesting Plouffe’s credibility concerning how the accident occurred. Hence, the railroad was estopped from making this argument at trial and may not raise this issue on appeal.

The second accident occurred on July 28, 1979 when Plouffe lost his footing while he was starting to climb down from an engine. Plouffe specifically remembers that he was looking where he was going because the deck on the locomotive had been worn so smooth that it had a “silvery finish.” The cleats on the locomotive walkway, designed to prevent slipping, had been worn smooth. When he started to climb down from the engine, his feet flew out from under him and he bounced down the steps on his rear. There were no eyewitnesses to this accident.

Again the railroad presented no evidence to the District Court contradicting Plouffe’s description of the accident. Nor did it meet its duty, under its own safety rules, to inspect the engine deck after the accident.

The railroad does not dispute that the walkway was smooth and defective. Indeed, the person designated by BN as a safety expert on locomotives admitted that the railroad violated its own safety rules by having a walkway where the metal cleats were worn down to the point where the deck was shiny.

The Federal Employers Liability Act provides that railroads have an absolute duty to maintain locomotives in such a condition as to prevent unnecessary peril to life or limb. Dallas v. Burlington Northern, Inc. (Mont. 1984), [212 Mont. 514,] 689 P.2d 273, 41 St.Rep. 1902, 1906. In addition, federal regulations require that floors be properly treated to provide secure footing. Anderson v. Burlington Northern, Inc. (Mont. 1985), [218 Mont. 456,] 709 P.2d 641, 42 St.Rep. 1738 (citing 49 CFR Section 229.119(c)).

In this case, where the cleats of the walkway had been worn smooth, it’s clear that an unnecessarily perilous condition existed. In admitting this, the BN expert even went so far as to explain that the railroad should have taken precautionary measures of welding new cleats on the walkway. Here again, summary judgment based upon the Safety Appliance Act was proper. The District Court correctly held the railroad strictly liable for Plouffe’s injuries, regardless of any contributory negligence.

The railroad claims that Plouffe’s cause of action was not negligence, and not legitimately a violation of the FSAA, because there was a factual issue that Plouffe had oil on his boots and that the oil could have contributed to his fall. If this was the case, they argue, then there would be no violation of the FSAA and the railroad could only be liable for negligence for leaving the oil in the yard. However, the admission that the walkway lacked cleats precludes this theory, as the lack of cleats created an unnecessarily perilous condition. The questionable oily condition of Plouffe’s boots was not a factor discussed in determining that the FSAA was violated.

The railroad also claims that Plouffe’s credibility concerning this accident was in issue and that it was error for the District Court to deny it the opportunity to raise the credibility issue at trial. Here again the railroad is estopped because of its actions during discovery. The following exchanges took place during the deposition of the railroad’s claims manager:

“Q. Was any evidence developed that contradicts Mr. Plouffe’s statement by you concerning how the accident occurred? A. No one has told me that Mr. Plouffe did not slip on Unit 1835 and hurt his right arm.
“Q. Was any evidence developed indicating that Mr. Plouffe was somehow not telling the truth in that regard? A. Not that I am aware of.
“Q. Do you know of any reason to doubt Mr. Plouffe’s statement that he did slip on the step on Unit 1835? A. None whatsoever.” The railroad’s attorney again followed this discussion with the following admissions:
“I would make the same statement that I made earlier on the other accident [regarding the brake wheel] that while there is — I am not aware of any information, evidence or other witnesses who contradict what he has put down in his report. We do dispute the nature and extent of the injury, disability, from the [fall from the engine].
“Whatever [Doug Plouffe] said took place before we don’t dispute, whether he called it a fall or a slip or whatever it was.”

Once again, Plouffe’s attorneys were lead to believe that Plouffe’s credibility was not an issue. Once again Section 26-1-601 estops the railroad from raising this issue in the District Court or on appeal.

The third accident occurred on October 26, 1979. Plouffe was attempting to straighten a drawbar on a flat car. The drawbar is the heavy metal bar that supports the coupler. These bars will slide to the left or right in order to allow cars to go around curves in the track. To couple cars, however, the drawbar must be in the middle of its housing rather than off to its right or left. Otherwise, when the coupler is brought together with the coupler on an adjacent car, there can be damage to the coupler or to the car.

A responsibility of railroad workers is to make sure the drawbar is straight and not misaligned when the cars are being coupled. To straighten the drawbar, a switchman leans against it and uses the weight of his body to move it into position. BN safety rules instruct workers in writing to straighten drawbars. It is the worker’s duty to see that coupling appliances are in place and to adjust the drawbars prior to making coupling.

In compliance with these rules Plouffe straightened a drawbar on October 29, 1979 and injured his back. Plouffe reported the accident and this time the railroad inspected the accident scene. Although the railroad found no defect in the drawbar, the absence is irrelevant. “The fact the coupler functioned properly before or after the incident in question is immaterial.” McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 571 P.2d 784. Once again, the duty of the railroad to insure worker safety is absolute, without regard to negligence or the normal efficiency of the couplers. Title 45, U.S.C., Section 2; Affolder v. New York C. & St. L. R. Co. (1950), 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683. Title 45, U.S.C. Section 2 holds that it is “unlawful for any . . . common carrier (engaged in interstate commerce by railroad) to haul or permit to be . . . used on its line any car . . . not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of cars.” Because the railroad admits that Plouffe went between the cars to straighten the drawbar, as was his obligation, and because the drawbar is part of the coupling device and must be kept in operating order, the railroad violates Title 45, U.S.C. Section 2 if the drawbar is so out of line that the car cannot be coupled automatically on impact. Plouffe was entitled to summary judgment on the liability issue for this accident.

The final accident took place on February 10, 1981. Doug Plouffe was a switchman in a three man crew engaged in uncoupling cars. One of the pins that allows the coupler of a car to release was not working during the uncoupling operation. This required Plouffe to walk along with the movement of the train, holding the pin lifter level to make sure the couplers disengaged. As he was getting ready to give the engineer a stop signal, he stepped in a hole between the railroad ties and the adjacent ballast, lost his footing and sprained his lower back and right knee. Plouffe had not seen the danger because fresh snow had filled the hole.

Plouffe’s account of how this accident happened was uncontradicted and is corroborated by the testimony of the engineer who saw the accident and a crew member who actually saw the hole and recommended to BN that it provide fill in that area.

In McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466, 477, 571 P.2d 784 this Court approved the following jury instruction:

“The Safety Appliance Act imposes an absolute duty . . . upon the railroad to provide its cars with coupling devices which operate efficiently at the time of the accident. If you should find from the evidence that plaintiff operated the uncoupling device in the usual accepted and customary manner and the uncoupler failed to immediately respond in an efficient manner, the railroad was in violation of the Safety Appliance Act.”

Here, the pin lifter was not working and Plouffe was required to walk along with the train. Based on Title 45, U.S.C. Section 2 and the authority cited above, this in itself was a violation of the FSAA. Therefore, we conclude there was sufficient undisputed evidence on which the District Court could base an order granting partial summary judgment. Appellant BN claimed that the action should have been in negligence and not brought under the FSAA because it was negligence (and not a violation of the FSAA) for it to have inadequate fill between the ties. This argument is illogical because it ignores the fact that Plouffe would not have been walking alongside the car (and hence injured) if the pin lifter had been operating.

By granting summary judgment on liability the District Court took the issues from the jury on whether BN’s violation of the FSAA caused the accidents. The railroad claims that there was insufficient evidence to establish the cause of Plouffe’s accidents because there were no accidents in three of the four incidents. BN speculates that Plouffe could have been injured in ways that did not involve violations of the FSAA. However, we follow the rule that inferences drawn from circumstantial evidence can be as probative as direct evidence. Barich v. Ottenstror (1976), 170 Mont. 38, 550 P.2d 395; Anderson v. Burlington Northern, Inc. (Mont. 1985), [218 Mont. 456,] 709 P.2d 641, 42 St.Rep. 1738. Furthermore, the party opposing a motion for summary judgment on a record which reveals no issue of material fact must present facts of a substantial nature. Conclusionary or speculative statements are insufficient to raise genuine issues of material fact. Barich, supra; Rule 56, M.R.Civ.P. Here the railroad relied exclusively on speculative statements inconsistent with their earlier admissions. We agree with the District Court’s conclusion that the railroad totally failed to set forth specific facts showing that there is a genuine issue for trial. “All (the railroad) does is tell the Court that it would be better to let the matter go to the jury because of its ‘allegations or denials of its pleading.’ As set forth in Rule 56(e), this is not sufficient.”

The railroad is also incorrect in claiming that the District Court took the issue of causation away from the jury. The issue of medical causation, that is whether or not the accidents caused injuries to Plouffe, was properly left to the jury.

The manner in which the accidents occurred and how they aggravated Plouffe’s back condition was fully explored. In short, the pertinent issues of causation of injury were left to the jury. The only issues not submitted to the jury were those that were established by uncontradicted evidence.

The second issue raised by the railroad involves what the railroad believes is a post-trial event justifying a new trial. The week after trial, Plouffe went to the trainmaster in Havre and requested he be permitted to go back to work. He presented a note from his chiropractor which said “Doug Plouffe may now return to work.” The same chiropractor had testified at trial that it was not medically feasible for Plouffe to return to work because it would aggravate his back condition. The railroad contends this evidence implies that Plouffe was physically able to return to work and that he intended to continue working in spite of his injuries. The railroad also argues that Plouffe committed fraud on the court, arguing that the note supported their position that the injuries were not severe enough to justify an award compensating him for lost earnings to the extent of his work life expectancy.

Contrary to the railroad’s arguments, this evidence is not new and it does not automatically imply that fraud has been committed. The District Court, in its order ruling against BN’s motion for a new trial, found that the note was similar to many other notes submitted when Plouffe was forced to go to work because he needed the money. It is evidence from the record that it was not wise for Plouffe to continue working, because he was only aggravating his back condition. However, it is equally clear that Plouffe had unavoidable financial obligations of family and home that had to be met in spite of his doctors’ and chiropractor’s recommendations. After the judgment, Plouffe’s financial status made it imperative that he secure income pending appeal. Hence the note to the railroad from Dr. Pardis. When Dr. Pardis felt Plouffe had recovered enough to return to work, he would submit notes similar to the one in issue. The trial changed matters little. Plouffe still needed to work to meet his obligations and Dr. Pardis, consistent with his earlier routine, released Plouffe to return to work after trial. The fact that Plouffe tried to continue to work despite his disabilities is not new. It was the same type of evidence presented at trial. Therefore, the railroad’s contention is meritless.

The final issue involves the District Court’s denial of Plouffe’s motion for an award of prejudgment interest. Plouffe relies heavily on Garcia V. Burlington Northern Railroad Co. (D. Colo. 1984), 597 F. Supp. 1304, a 1984 decision currently under appeal that held that the “legislative history and subsequent judicial application of the FELA demonstrate that granting prejudgment interest . . . would promote the policies underlying the Act.” Although prejudgment interest would address legitimate concerns, discouraging dilatory pretrial tactics, the law of Montana does not provide such relief. Section 27-1-211, MCA, provides, “Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day.” In short, this statute allows interest only from the date of judgment, as that is the day the damages are capable of being made certain. Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 654 P.2d 972; Wyant v. Dunn (1962), 140 Mont. 181, 368 P.2d 917.

Therefore we affirm the District Court’s grant of Doug Plouffe’s motion for partial summary judgment.

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

MR. JUSTICE WEBER,

specially concurring:

I concur with the conclusions reached by the majority. The first issue is whether the trial court erred in granting the plaintiff’s motion for partial summary judgment on the issue of liability. I agree with the conclusion of the majority that BN failed to raise a genuine issue of material fact so that the District Court properly granted summary judgment on the issue of liability. The majority also bases its conclusion on Section 26-1-601, MCA, and I disagree with the application of that statute.

In substance the majority concludes that because the claimsman for the BN in the course of his deposition presented no facts to contradict the plaintiff’s theory of the case and because the attorney for the BN in the same deposition pointed out at that point the BN was not aware of witnesses who would say it didn’t happen that way, that constituted a leading of the plaintiff to believe the railroad was not contesting the plaintiff’s credibility concerning how the accident happened. The majority then concludes that the railroad was es-topped under Section 26-1-601, MCA, from making this argument at trial and may not raise the issue on appeal. Even though the claimsman was not able to dispute the plaintiff’s version of how the various accidents happened, and even though the BN attorney stated that they had no basis at that point in time to say the plaintiff was not telling the truth, I do not conclude that this is the type of declaration, act or omission covered under Section 26-1-601, MCA. I conclude that the BN would still have a right to contend that the accidents did not occur in the manner detailed by the plaintiff even though they had no witnesses to the accidents.

MR. JUSTICE GULBRANDSON joins in the foregoing special concurrence.