text:
    DOROTHY M. HALCRO and Robert M. Halcro, husband and wife, Plaintiffs and Respondents, v. DONALD C. MOON aka Don C. Moon, Jr., Defendant and Appellant.
    No. 86-557.
    Submitted on Briefs Jan. 29, 1987.
    Decided March 12, 1987.
    733 P.2d 1305.

      Hartelius & Ferguson, Cameron Ferguson, Great Falls, for defendant and appellant.
    Sandra K. Watts, Great Falls, for plaintiffs and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant Donald Moon appeals the summary judgment awarded in favor of plaintiffs by the Eighth Judicial District Court, County of Cascade. We affirm.

This case involves breach of a buy-sell contract. Robert and Dorothy Halcro were the sellers and Donald Moon the buyer. In August of 1985, Halcros listed their home for sale. The house is located at 2312 Sixth Avenue South in Great Falls, Montana. On August 8, 1985, Halcros entered into a written agreement with Moon to sell their home for $57,000. The terms were $13,800 in cash as a down payment plus assumption of a $34,100 first mortgage and a $9,100 second mortgage. The only condition precedent contained in the agreement was that Moon sell his home in Colorado. The closing date was listed as November 1, 1985.

Moon sold his Colorado home for less than anticipated so he requested that Mr. Halcro reduce the purchase price on the 2312 Sixth Avenue property by $1000. The parties compromised, and a new buy-sell agreement was signed October 18, 1985, lowering the purchase price by $500. All other terms remained the same. The premises were vacant prior to the closing date as Halcros had purchased and moved into another home.

On October 24, 1985, Mr. Halcro inspected the vacant premises and discovered water on the floor of the laundry room and the adjacent bathroom floor was raised. Halcro informed his real estate agent, Ginger Wheeler, of the problem. Ms. Wheeler informed Moon repairs would be conducted within a week.

Mr. Halcro determined the problem to be leaky faucets in the utility room, so he replaced the washers and hired a contractor to repair the bathroom floor. The Moons arrived in Great Falls approximately November 7, 1985. Upon entering the home a musty smell was present. A large puddle was discovered in the utility room and the repair work on the bathroom floor was inadequate. Water was also discovered in the crawl space beneath the house.

Mr. Halcro and Ms. Wheeler met with the Moons the following day. Mr. Halcro promised to warrant in writing that he would undertake further repair and cover all costs. The following day Mr. Moon informed Ms. Wheeler he and his wife had decided not to buy the house. Mr. Halcro rented the house to Steve Kroger the following week.

Contract Flooring repaired the bathroom floor and discovered a pinhole leak in the waterline beneath the bathroom floor. Palagi Plumbing repaired the water line. The repairs took one week and Mr. Kroger stated in his affidavit that the repair work did not inconvenience his family. There have been no water problems in the house since that time.

Halcros filed an action against Moon for specific performance of the buy-sell agreement. Moon’s answer raised the defense of breach of contract by Halcros. The answer was amended to include mistake of fact and failure of consideration. Halcros filed a motion for summary judgment based upon the pleadings, admissions, and affidavits in the record. Following hearing, the District Court granted summary judgment in favor of Halcros and ordered Moon to perform the terms of the contract. Moon appeals and raises the following issues:

1) Whether summary judgment was proper?

2) Whether Moon was entitled to rescind the contract upon the grounds of mistake of fact and failure of consideration?

3) Whether Moon was entitled to rescind the contract upon the ground that Halcros breached the contract?

4) Whether the relief granted to Halcros was proper?

Summary judgment is proper pursuant to Rule 56(c) Mont.R.Civ.P. where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment. Abell v. Travelers Insurance Co. (Mont. 1983), [204 Mont. 156,] 663 P.2d 335, 40 St.Rep. 738. A review of the record in this case shows no genuine issue of material fact and supports the summary judgment in favor of Halcros.

Each of the defenses raised by Moon are dependent upon a showing that the water problems in the house were so substantial as to defeat the object of the contract. In Woodahl v. Matthews (1981), 196 Mont. 445, 639 P.2d 1165, the buyer sought to rescind a contract to buy the seller’s home on grounds of breach of express warranty, mistake of fact, and failure of consideration. After signing an agreement to purchase the home, the buyer discovered the floors sloped at a rate of 5Vi inches every thirty feet. Testimony from the sellers and several workmen who worked on the house revealed that the sloped floors had gone unnoticed for 10 years. This Court held the buyers were not entitled to rescind the contract due to mistake of fact because the mistake was not “so substantial and fundamental as to defeat the object of the contract.” 196 Mont. 452, 639 P.2d 1169. Additionally, we found no failure of consideration because the buyers received that for which they bargained.

Compton v. Alcorn (1976), 171 Mont. 230, 557 P.2d 292, is a case in which this Court held rescission of a contract to buy a mobile home was proper due to a substantial failure of consideration. The mobile home’s defects were numerous, most notably a furnace which was unusable and dangerous. We found that substantial and fundamental defects defeated the object of the contract which was to provide the buyers a new mobile home with readily available housing.

In the present case, Moon has offered no evidence that the water problems were so substantial as to defeat the object of the contract. Moon claims he was entitled to rescission because he believed the house had substantial plumbing problems. However, the evidence reflects that this was not the case. A pinhole leak was repaired, no structural damage was found, and there have not been any water problems in the house since that time.

Moon moved his family from Colorado with the expectation of moving into the house upon arrival. Unlike the situation in Compton, supra, there is no evidence that the house was not habitable. In fact, the house was rented the following week to Mr. Kroger. The house has two bathrooms and Kroger’s family was not inconvenienced by the repair work which lasted one week. We find no evidence in the record that the water leak was so substantial as to defeat the object of the contract.

Moon contends Halcros breached the contract by failing to have the water leak repaired by the time Moon’s family arrived at the house. There is no dispute that Mr. Halcro promised to have the water leak fixed prior to the Moons arrival but Halcro’s repair work was inadequate. Still, Moon has presented no evidence that the breach was material. In Johnson v. Meiers (1946), 118 Mont. 258, 164 P.2d 1012, this Court stated:

“A breach which goes to only part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract; the injured party is still bound to perform his part of the agreement, and his only remedy for the breach consists of the damages he has suffered therefrom.”

118 Mont. 263, 164 P.2d 1014.

This reasoning is applicable here. We find no material breach by Halcros entitling Moon to rescission.

The final issue on appeal is whether the District Court properly granted specific performance in favor of Halcros. Section 27-1-411(4), MCA, provides that specific performance may be compelled when the parties to a contract have expressly agreed in writing that specific performance shall be an available remedy. The buy-sell agreement signed by the parties expressly provided for a remedy of specific performance. Halcros had a right to pursue this remedy and were not required to re-list the house for sale.

The District Court is affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    YELLOWSTONE BANK OF ABSAROKEE, Plaintiff and Respondent, v. MICHAEL MERRITT MORSE, Defendant and Respondent, Betty June Kratz Fletcher, Personal Representative of the Hazel I. Kratz Estate, Defendant and Respondent, William Randolph Morse, Steven M. Morse, Gregory G. Morse, and Debra Sue Morse, Defendants and Appellants.
    No. 86-356.
    Submitted on Briefs Dec. 31, 1986.
    Decided March 17, 1987.
    733 P.2d 1310.
    Lynaugh, Fitzgerald, Hingle & Eiselein; William P. Fitzgerald, Billings, for defendants and appellants.
    Michael Merritt Morse, Billings, Richard Heard, Columbus, R.J. Carstensen, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This appeal arises out of a summary judgment granted defendant/ respondent, Michael Merritt Morse, by the District Court in the Thirteenth Judicial District in and for Stillwater County, Montana. We affirm.

Michael Morse is the surviving joint tenant with his maternal grandmother of a certificate of deposit (C.D.) with a face value of $10,000. The original C.D. was in the name of Buford L. Kratz, or Hazel I. Kratz, or Michael Merritt Morse. The Kratzes were Morse’s maternal grandparents. On the deaths of the Kratzes in the late 1970’s, their daughter, Morse’s mother, became personal representative of their estates.

Morse’s four siblings also are joint tenants with their grandparents of C.D.s in various amounts. With two exceptions, these C.D.s had not been distributed at the time this appeal was filed. An accounting filed in 1982 indicated that the C.D.s were being handled as though they were part of the probate estate. The accounting also revealed that in 1981 Michael Morse received a $5,000 C.D. he held jointly with his deceased grandparents. He had petitioned the court for partial distribution of certain C.D.s, which the court termed “assets of the estate.” One each was distributed to Michael, his brother Gregory, and one Olga Kraft. (The record does not indicate the relationship of Olga Kraft to any of the parties to this action.)

In September, 1982, Michael Morse executed a document transferring and assigning “all [his] right, title and interest in and to further distribution unto [his four siblings].” A copy of this assignment and transfer was sent to the Yellowstone Bank of Absarokee, Montana, interpleader/plaintiff/respondent in this action. The Bank then filed an action in interpleader, claiming the transfer and assignment allegedly transferred all of Michael Morse’s right in the assets of the Kratz estate. The Bank alleged it received numerous demands from Michael Morse to distribute to him the proceeds of the C.D. in controversy or to give him authority to pledge the C.D. as collateral for loans. The Bank also alleged that Michael’s siblings had made demand on it to transfer the proceeds to them, contrary to the claim of Michael Morse. The Bank asked that defendants be restrained from prosecuting any legal action against it for the recovery of any sums due under the C.D.s and that defendants settle their rights between themselves. The Bank requested and was granted permission to deposit with the court the face amount of the C.D. plus accrued interest on its maturity date, August 21, 1985.

Two months later Michael Morse petitioned the court to release the funds to him, stating that he had at no time transferred or executed any document purporting to transfer the subject C.D. The court treated this motion as one for partial summary judgment, found as a matter of law that the assignment of September, 1982, did not assign any interest in the subject C.D. and granted Michael Morse’s motion. Michael Morse’s siblings appeal.

Summary judgment is proper under Rule 56(c), M.R.Civ.P., only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 510. The findings of the District Court will not be overturned unless they are clearly erroneous. Rule 52(a), M.R.Civ.P. We find the District Court did not err.

The only facts pertinent to this issue are whether the transfer and assignment worked to distribute the $10,000 C.D. held jointly by Michael and his grandmother to other heirs and devisees of the grandparents’ estates. The assignment reads in pertinent part:

“Comes now MICHAEL M. MORSE, as heir and devisee of these estates, and hereby sells, transfers and assigns all right, title and interest in and to further distribution unto the following individuals: WM. RANDY MORSE, STEVEN M. MORSE, GREGORY G. MORSE and DEBRA SUE MORSE.
“It is specifically understood that the transfer effected herein should not extend to any sums already distributed to the assignor.”

When a contract is reduced to writing, the intention of the party is to be ascertained from the writing alone, if possible. Section 28-3-303, MCA. Section 70-1-513, MCA, provides that grants of property are to be interpreted according to the same principles as contracts. Thus, under Section 28-3-401, MCA, the language of the transfer and assignment governs interpretation if the language is clear and unambiguous. Proctor v. Werk (Mont. 1986), [220 Mont. 246,] 714 P.2d 171, 172, 43 St.Rep. 333, 334.

Appellants argue that the terms of the assignment are ambiguous and require extrinsic evidence that Michael Morse actually intended to assign his rights in the C.D. as well as his rights in assets of the estate, focusing on the phrase “further distribution.” They argue the one previous release to Michael of a joint tenancy asset identical to the present interpleaded funds somehow renders uncertain the distribution language in the transfer.

On the record before this Court it is not clear why the C.D.s owned by the various Morse siblings in joint tenancy with their grandparents have been treated as assets of the estate. At the time Hazel Kratz died, Michael Morse became the sole owner of the C.D. held jointly by him and his grandmother. It is not an asset of the estate to which he is an heir and devisee. The District Court did not find an ambiguity in the transfer, nor do we. It appears the document is clear on its face that Michael was assigning his right, title and interest in the estate. The fact that the District Court earlier distributed some jointly held C.D.s is not relevant to interpretation of this assignment.

Finding no ambiguity, there is no material issue of fact and summary judgment properly lies. We affirm.

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


author: MR. JUSTICE SHEEHY

text:
    JENNIFER BROWN, a Minor Child, et al., Plaintiff and Respondent, v. DARRYLE HARTWELL, Defendant and Appellant.
    No. 86-481.
    Submitted on Briefs Feb. 13, 1987.
    Decided March 17, 1987.
    734 P.2d 204.
    Terry A. Wallace, Missoula, for defendant and appellant.
    William Boggs, Missoula, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Darryle Hartwell appeals from an order of the District Court, Fourth Judicial District, Missoula County, denying his motion for a change of venue from the District Court in Missoula County to the District Court in Lake County. The complaint alleges that on August 1, 1981, Jennifer Brown was injured while she was swimming in Flathead Lake, located in Lake County, Montana. Darryle was operating a boat, towing an inner tube, and the tow rope is alleged to have hit Jennifer in the face, causing her injuries. Jennifer resided in Lake County, and Darryle was a resident of Missoula County at the time of the incident.

Jennifer filed suit for her alleged injuries in Missoula County and served Darryle as defendant in Missoula County, his place of residence. In January, 1983, Darryle moved for a change of venue to Lake County. On August 4, 1986, the District Court denied the motion for change of venue, and this appeal ensued.

On appeal, counsel for Jennifer contends that under Montana law the place of residence of the defendant is clearly the proper venue for such a suit, and that Darryle’s appeal from the denial of the motion for change of venue is frivolous, entitling Jennifer to attorneys fees, costs and sanctions by way of a money award under Rule 32, Montana Rules of Appellate Civil Procedure. Darryle on the other hand contends that the law in force at the time the motion was made for change of venue clearly requires the tort action be tried in the county where the tort occurred.

The opposite contentions of the parties arise quite naturally from the confusion of statutes relating to venue before, during and following the time this action has been pending in the District Court.

Formerly, Section 93-2904, R.C.M. (1947) provided in pertinent part:

“In all other cases the actions shall be tried in the county in which the defendants or any of them, may reside at the commencement of the action, or where the plaintiff resides, and the defendants, or any of them, may be found; . . . Actions upon contracts may be tried in the county in which the contracts were to be performed, and actions for torts in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this code.”

In those cases decided under the foregoing statute, it was usually held that the proper venue for a cause of action for a tort was the county in which the tort was committed. Putro v. Mannix Electric, Inc. (1966), 147 Mont. 314, 412 P.2d 410; Petition of Wasson (1964), 143 Mont. 323, 389 P.2d 406; Maio v. Greene (1943), 114 Mont. 481, 137 P.2d 670; Stewart v. First National Bank and Trust Company (1933), 93 Mont. 390, 18 P.2d 801; Dryer v. Director-General of Railroads (1923), 66 Mont. 298, 213 P. 210; Yore v. Murphy (1891), 10 Mont. 304, 25 P. 1039; however in dictum, the Federal District Court had indicated that either the county of residence of the defendant or the county where the tort was committed was the proper county in which to bring a tort action. Tassie v. Continental Oil Company (U.S.D.C. Mont. 1964), 228 F.Supp. 807.

It will be noted that former Section 93-2904 also refers to contract actions, and with respect to that kind of action, this Court has held that either the place where the contract was to be performed, or the place of residence of the defendant was a proper venue for a contract action. This Court stated that the general rule in contract cases was that the action was to be tried in the county of the defendant’s residence where the plaintiff’s pleadings did not clearly establish that the contract forming the basis for the action was to be performed in the county where the action was brought. McNussen v. Graybeal (1962), 141 Mont. 571, 380 P.2d 575; Fraser v. Clark (1954), 128 Mont. 160, 273 P.2d 105.

The Revised Codes of Montana (1947), with their amendments, were recodified in 1978 as Montana Codes Annotated. The venue statute which formerly existed as Section 93-2904, R.C.M. (1947) was divided into several sections. With respect to tort actions, the recodified provision was as follows:

“25-2-102. Tort Actions. Actions for tort may be tried in the county where the tort was committed, subject, however, to the power of the court to change the place of trial as provided in this code.”

No reference is found in the Montana Codes Annotated for 1978 and subsequent years until 1983 allowing venue of an action in the county where the defendant resides, except in Section 25-2-108. That statute provided:

“25-2-108. Other Actions. In all other cases, the action shall be tried in the county in which the defendants or any of them may reside at the commencement of the action or where the plaintiff resides and the defendants or any of them may be found; . . . .”

Thus, at the time that Darryle in this case moved for a change of venue, the tort statute on venue required the action to be brought in the county where the tort was committed. Section 25-2-102, supra.

In 1985, all of the venue statutes were amended, with the objective of bringing the venue statutes into line with the court’s decisions and to clearly delineate the proper venue for all kinds of actions. Ch. 432, Laws of Montana (1985). The policy of the venue statutes as amended is that the proper place of trial is where the defendant resides in civil cases.

Section 25-2-118, MCA, provides:

“Unless otherwise specified in this part:
“(1) Except as provided in subsection (3) [not applicable here], the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action . . .”

With respect to actions in tort, the venue statutes now provide:

“25-2-122. Torts. The proper place of trial for a tort action is:
“(1) The county in which the defendants, or any of them, reside at the commencement of the action; or
“(2) The county where the tort was committed.”

In this case therefore at the time that Darryle moved for change of venue to Lake County, there was ample statutory authority for him to insist that he was entitled to such change of venue based on Section 25-2-102, MCA (1978). However at the time that the District Court decided the motion for change of venue, the venue statutes had been amended, and the evident policy of the legislature may now be found to require that in all civil actions the proper place of trial is in the county of the defendant’s residence but that in tort actions, such proper county may be the county of defendant’s residence or the place where the tort was committed. Section 25-2-122, MCA (1985).

We determine in this cause that because the legislative policy with respect to venue is now plainly expressed, we affirm the decision of the District Court that Missoula County is the proper place of trial since it is one of two counties which are proper venues for a tort action under the latest legislative enactment. Neither party shall recover costs on this appeal.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    DALLAS JOHNSON, Plaintiff and Respondent, v. BOZEMAN SCHOOL DISTRICT NO. 7, Defendant and Appellant.
    No. 86-60.
    Submitted on Briefs Nov. 21, 1986.
    Decided March 18, 1987.
    734 P.2d 209.

      White & Seel, Donald E. White, Bozeman, for defendant and appellant.
    Kirwan & Barrett, Peter M. Kirwan, Bozeman, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Bozeman School District No. 7 appeals a September 30, 1985, order of the Eighteenth Judicial District Court, Gallatin County. The order affirmed a Human Rights Commission determination that Dallas Johnson was unlawfully discriminated against by the School District on the basis of marital status. Johnson cross-appeals that part of the order which denied him tenure, attorney fees, and the right to have his damages recalculated.

The School District raises two issues for our review:

1. Did the Human Rights Commission and the District Court err in finding that the School District discriminated against Johnson on the basis of his marital status?

2. Did the Human Rights Commission and the District Court err by failing to find that Johnson’s claim is barred by laches?

Johnson raises three additional issues:

3. Did the Human Rights Commission abuse its discretion by failing to award Johnson tenure with the School District?

4. Did the Human Rights Commission abuse its discretion by failing to exclude Johnson’s summer earnings from its calculation?

5. Did the District Court abuse its discretion by failing to award Johnson his reasonable attorney fees?

We reverse on Issue 1, which renders moot Issues 2, 3, 4 and 5.

In June 1975, Dallas Johnson applied for a position as a physical science teacher at Bozeman Junior High within School District No. 7 (School District). Johnson has a Bachelor’s degree from Montana State University and a Secondary Teacher’s Certificate. Johnson’s wife was a teacher at Bozeman Junior High. At the time of Johnson’s application, the School District had a policy in effect which prohibited persons of the same immediate family from teaching in the same school. Johnson was unaware of this policy at the time he applied with the School District. At the outset, we note that the School District properly abandoned this policy in 1981.

Donovan Miller was the personnel director for the School District from 1975 to 1980. Part of his job involved screening all applications for teaching in the School District. His procedure was to review the applications, assign each one a numerical rating, and then send those applications with the highest ratings to the principal of the school where an opening existed. The applicants were rated on a scale from “one to five;” a rating of “one” was superior and a rating of “five” was poor. Johnson’s application was rated along with a large number of other applicants for the teaching position at Bozeman Junior High. Johnson was rated at “four.” The other applicants all had higher ratings than Johnson.

The School District had never hired any one rated less than “two.” Miller’s policy was to send only those applications rated a “one” or “two” to the particular principal for review. However, the principal doing the interviewing could request a particular application from Miller.

Francis Olson was the principal at Bozeman Junior High from 1967 to 1981. He was familiar with Johnson because Johnson had student-taught at the junior high. Soon after Johnson applied for the teaching position, he contacted Olson to ask whether Olson had received Johnson’s application. Since Olson had not yet received it, Olson called Miller to inquire about the application. Olson requested that Johnson’s file be forwarded to him for review. Miller did not refer to Johnson’s low rating, but only told Olson that he would not send the application because the School District’s policy prohibited Johnson’s employment at Bozeman Junior High, since Johnson’s wife was already employed there. Shortly thereafter, Olson told Johnson what Miller had said.

On July 18, 1975, Johnson filed a complaint with the Human Rights Commission alleging that the School District violated Section 49-2-303, MCA, by discriminating against him on the basis of his marital status. On June 21,1976, and on December 19,1979, he filed additional amended complaints with the Commission alleging the same violations as were alleged in his initial complaint. However the Commission was unable to conduct an investigation on the matter until October 1979 because of the pendency of an action brought by the School District against the Commission.

On December 17, 1980, the Human Rights Commission issued a reasonable cause finding, and on May 18, 1982, hearing was held before an examiner appointed by the Commission. The hearing examiner found that the School District had unlawfully discriminated against Johnson on the basis of marital status, and ordered the School District to offer Johnson the next available teaching position in the system. Additionally, the examiner awarded Johnson “back pay and front pay.” On March 31, 1983, the case was heard before the Human Rights Commission. It affirmed the findings and proposed order of the hearing examiner. Johnson was awarded all rights and privileges that would have accrued by reason of employment with the School District since 1975, with the exception of tenure. The award of “back pay and front pay” was offset by the amount that Johnson had actually earned since 1975. The School District then filed a petition for judicial review with the District Court. On September 30, 1985, the District Court affirmed the decision of the Human Rights Commission. Both parties have appealed the judgment of the District Court.

Issue 1

Did the Human Rights Commission and the District Court err in finding that the School District discriminated against Johnson on the basis of his marital status?

At the time Johnson applied for a teaching position with the School District, the School District had a policy in effect which prevented spouses from teaching in the same school. The Human Rights Commission ultimately concluded that Johnson was qualified for the teaching position he applied for and was prevented from consideration because of the anti-nepotism policy. It also concluded that Johnson had been unlawfully discriminated against, in violation of Section 49-2-303(1)(a), MCA, which provides:

“It is an unlawful discriminatory practice for . . . an employer to refuse employment to a person, to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his . . . marital status . . . (Emphasis added.)”

The Commission’s findings of fact are subject to the judicial standard of review set forth in Section 2-4-704(2), MCA, which states in relevant part:

“The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(d) affected by other error of law\
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; [Emphasis added.]”

Findings of fact by an administrative agency are subject to the “clearly erroneous” standard of review. However, conclusions of law are subject to the “abuse of discretion” standard of review, where the scope is broader. “These standards differ due to the agency’s expertise regarding the facts involved and the court’s expertise in interpreting and applying the law.” City of Billings v. Billings Firefighters (1982), 220 Mont. 421, 651 P.2d 627, 632, 39 St.Rep. 1844, 1849. We will therefore review the conclusions of law of the Human Rights Commission and the District Court, utilizing the standard of Section 2-4-704(2) (d), MCA.

The School District contends, as it has since the initial proceedings, that Johnson was screened out by the rating system. The District asserts that Johnson was not hired because his credentials were far inferior to those of every other applicant. Thus, the marital policy was never brought into effect. The School District also contends that the Human Rights Commission and the District Court erred by not applying the proper test for the allocation of the burden of proof.

Johnson contends that he called Miller to request that his application be forwarded to Olson. Johnson asserts that Miller said Johnson could not be considered for the teaching position, because his wife was a teacher at that school, and his employment would be contrary to the District’s policy.

Thus, the parties have framed the question: “Which factor was primary in the rejection of Johnson’s application — his rating or his marital status?” Before we can determine whether the ultimate conclusion of the Human Rights Commission is an error of law, we will first address the proper allocation of proof and the evidentiary burden placed upon the respective parties in an employment discrimination case.

We have held that reference to federal case law is both appropriate and helpful in employment discrimination cases filed under the Montana Human Rights Act, Title 49, MCA, because they closely parallel those of Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. Snell v. Montana-Dakota Utilities Co. (1982), 198 Mont. 56, 62, 643 P.2d 841, 844.

In order to aid plaintiffs in proving their claims of employment discrimination, the United States Supreme Court articulated a three-stage test, which employs shifting burdens of proof. McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (employer rejected the re-employment application of a black civil rights activist).

Under the first stage of the McDonnell Douglas test, the plaintiff bears the burden of establishing a prima facie case of discrimination. He must show the following:

(1) that he is a member of a protected class;

(2) that he applied for and was qualified for the job;

(3) that despite his qualifications he was rejected; and

(4) that, after his rejection, the position remained open and the employer continued to seek applications from persons of the complainant’s qualifications.

This prima facie case creates a rebuttable presumption of discrimination.

Under the second stage of the McDonnell Douglas test, if the plaintiff has established his prima facie case, the burden then shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 678. The burden on the employer at this stage is merely one of production, not persuasion. “The defendant need not persuade the court that it was actually motivated by the proffered reasons [citation omitted]. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207, 216 (explaining McDonnell Douglas). If the employer is able to demonstrate a legitimate, nondiscriminatory reason for not hiring the complainant, even though that may not have been the actual reason for the rejection, then the plaintiff’s prima facie case of discrimination is rebutted.

Under the third stage, if the plaintiff’s prima facie case is rebutted, he then has an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the employer are only a pretext for discrimination. McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1826, 36 L.Ed.2d at 679. “This burden now merges with the ultimate burden of persuading the court that [plaintiff] has been the victim of intentional discrimination.” Texas Dept. of Community Affairs, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217.

We have consistently used the McDonnell Douglas test as the appropriate method of proving an employment discrimination claim. European Health Spa v. Human Rights Comm’n (Mont.1984), [212 Mont. 319,] 687 P.2d 1029, 1032, 41 St.Rep. 1766, 1769; Martinez v. Yellowstone County Welfare Dept. (Mont. 1981), 626 P.2d 242, 246, 38 St.Rep. 474, 477. We note that the School District’s policy, when based on marital status, was discriminatory on its face. In Thompson v. Board of Trustees, Sch. Dist., Etc. (Mont. 1981), 627 P.2d 1229, 1231, 38 St.Rep. 706, 709, we held that Section 49-2-303(l)(a), MCA, is a “strongly worded directive from the legislature prohibiting employment discrimination and encouraging public employers to hire, promote, and dismiss employees solely on merit.”

However, Johnson never reached the protection afforded by Section 49-2-303(l)(a), MCA, because his qualifications never reached the minimum hiring standard used by the School District. The record reveals that the School District had never hired anyone with a three, four or five rating. Johnson’s rating of four was based on poor college grades, supervisors’ poor recommendations and inferior experience. He was under-qualified in contrast to the other applicants. Under the McDonnell Douglas test, Johnson needed to show that he was in a position to be considered for employment before he could invoke the protection of Section 49-2-303(1) (a).

Johnson failed to prove that his marital status was the substantial factor in his rejection. On the contrary, the District Court stated in its order: “The school district did present credible evidence of a nondiscriminatory reason for not hiring Mr. Johnson (inferior qualifications and credentials) . . .’’In addition, the Human Rights Commission found that Johnson had the poorest credentials of any applicant for the position. The record reveals that the School District’s substantial and motivating factor in Johnson’s rejection was his rating of “four,” and not his marital status. As the School Superintendent testified: “[Johnson] was screened out by his rating before you would even consider the nepotism policy. Even if the policy hadn’t existed, obviously he would have been screened out.” Under the test of McDonnell Douglas, the key element of a plaintiff’s prima facie case is his qualifications for the job. Without adequate qualifications, the analysis ends. The bare fact that Johnson had a teaching degree and certificate is not enough to automatically place him in the pool of acceptable applicants, under the criteria established by the School District. Other factors, such as grades and recommendations, played a large role in determining the qualifications of an applicant. The Bozeman School District set a qualification standard which Johnson failed to reach. Johnson has failed to establish the “qualified” element of his prima facie case, thereby precluding the need for the School District to rebut his evidence.

If, arguendo, Johnson had established his prima facie case, the School District in stage two of the McDonnell Douglas test produced enough evidence to raise a genuine issue of fact; thereby rebutting Johnson’s prima facie case of discrimination, and carrying the analysis to the third stage of the test. At the third stage, Johnson must prove, by a preponderance of the evidence, that the reasons offered by the School District for his rejection are merely a pretext for discrimination. However, Johnson’s claim also fails at this stage because the District Court’s order, in discussing Johnson’s rejection, stated: “this was not a mere pretext for hiring someone else.”

We cannot allow Johnson’s marital status to secure what his qualifications could not. As we held in Snell, 198 Mont. at 69, 643 P.2d at 848, “this Court has a responsibility to the employer as well as to the employee. Part of that responsibility consists in requiring adequate credible evidence of discrimination before subjecting an employer to the penalties associated with a finding of discrimination.”

We hold that McDonnell Douglas defines the appropriate test in this case. However, both the Human Rights Commission and the District Court failed to apply the McDonnell Douglas test to the facts. Both failed to cite McDonnell Douglas in their orders. Therefore, their conclusions that Dallas Johnson was discriminated against, on the basis of marital status, is an error of law. Under the standard of review of Section 2-4-704(2)(d), MCA, we reverse on this issue, which renders remaining issues moot.

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


text:
    In re the MARRIAGE OF CAROL VOELKEL, a/k/a Carolyn Voelkel, Petitioner and Appellant, and GLENN L. VOELKEL, Respondent and Respondent.
    No. 86-388.
    Submitted on Briefs Jan. 22, 1987.
    Decided March 18, 1987.
    734 P.2d 217.

      Jackson & Rice, Gregory Rice, John W. Mahan, Helena, for petitioner and appellant.
    Peter Michael Meloy, Helena, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Carol Voelkel appeals a Lewis and Clark County District Court order dividing the marital property of the parties and establishing child custody, support and maintenance. The court ordered the parties to pay their own attorney fees and ordered the husband to pay all court costs. Two issues are presented on appeal: (1) Whether the District Court abused its discretion in dividing the marital property of the parties? (2) Whether the District Court abused its discretion by failing to award the wife reasonable attorney fees? We affirm.

The parties were married in 1960, separated in March 1984 and were divorced by court decree on February 5, 1985. The marriage produced five children, two of whom are minors and presently reside with the wife. During the marriage, the wife assumed primary responsibility for operation of the home and caring for the children. She did not work outside the home except for a brief time prior to the birth of the first child but did assist the husband in his business, performing occasional bookkeeping and other related tasks. The wife has a high school education and was training to be an executive secretary at the time of the District Court hearing. The husband worked as a carpenter from 1960 to 1969, did contract work from 1969 to 1973, and conducted business as “Glenn Voelkel Builder” until incorporating the business as “Glenn Voelkel Builder, Inc.” in 1983. He is the sole shareholder of the corporation. The husband earned an average of $21,654 from 1979 to 1983. The marital estate includes two parcels of real property with equity of $63,567 for the family residence and $7,138 for the other parcel.

The District Court awarded joint custody of the two minor children and ordered husband to pay child support of $250 per child per month. The court awarded maintenance to the wife of $828 per month from March 1984, the separation date, to November 1985, and $350 per month from November 1985 to June 1986, for a total maintenance award of $19,010. The court gave husband a credit of $29,475 because of the voluntary payments he made to wife between the separation date and June 1985. The court further ordered husband to pay the wife $17,435 to equalize the division of personal property and awarded husband the family home on the condition that he pay the wife $31,783.50 in cash as the wife’s fifty percent share in the equity of the home. Finally, the court ordered the parties to pay their own attorney fees and ordered husband to pay all court costs.

Section 40-4-202, MCA, gives the district court the discretion to equitably divide the marital property. The standard of review was stated in In re Marriage of McCormack (Mont. 1986), [223 Mont. 409,] 726 P.2d 319, 321, 43 St.Rep. 1833, 1835:

“The District Court has far-reaching discretion in making property divisions. The reviewing court does not substitute its judgment for that of the trial court, and will not alter a judgment unless it finds an abuse of discretion, i.e., that the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. (Citation omitted.)

The wife disagrees with three aspects of the marital property distribution. First, she argues that the District Court did not consider the value of the husband’s business (Glenn Voelkel Builder, Inc.) as part of the marital estate. We disagree with this contention and point to the District Court findings #6 and #12 for support:

“VI.
“Respondent supported and maintained the household working as a carpenter from 1960 to 1969, then contracting as a carpenter from 1969 to 1973, then doing business as ‘Glenn Voelkel Builder’ until 1983, at which time he incorporated himself and continued to operate as ‘Glenn Voelkel Builder, Inc.’, of which he is the sole shareholder. The parties reported total income, all of it earned by Respondent, of $12,965 in 1979, $54,744 in 1980, $34,812 in 1981, $492 in 1982 and $5,255 in 1983 for a five-year average of $21,654 per year. Respondent could earn approximately $25,000 a year if employed as a construction superintendent.
“XII.
“The marital estate also includes Glenn Voelkel Builder, Inc. In evaluating the testimony and exhibits presented on the subject, we calculate the value of the business at something less than zero by deducting as assets a $41,000.00 promissory note to the Respondent, the sole stockholder, and a $10,000.00 building from which the business is operated but which is included as part of the family residence. The ‘going concern’ value of the business is purely the name and reputation of the Respondent.”

The court made its findings after hearing from the parties’ experts, both of whom essentially agreed that the corporation had a net negative value and no appreciable good will. The trier of fact has the discretion to give whatever weight he sees fit to the testimony of the expert. Dickerson v. Dickerson (1980), 188 Mont. 492, 497, 614 P.2d 521, 524. We find no error since the District Court did consider the value of the corporation to the marital estate.

The second aspect of the property distribution with which the wife disagrees is the offset or credit given to the husband on account of his voluntary payment ($29,475) to the wife from the date of separation to June 1985. The District Court awarded the wife monthly maintenance of $828 from March 1984 to November 1985, the time by which the wife should have completed her secretarial training and obtained employment. The court also awarded the wife $350 monthly maintenance from November 1985 to June 1986, bringing the total maintenance award to $19,010. Since the husband voluntarily paid the wife $29,475 subsequent to the separation date, the court in its discretion decided to give the husband a credit for this amount. The wife claims the court’s decision indebted her to the husband in an amount exceeding $10,000. This is not an accurate assessment since the record shows that the court, in addition to awarding a credit to the husband, ordered the husband to pay $49,218.50 in cash to the wife as her share of the equity in the family home and for the purposes of equalizing the personal property distribution. The District Court considered these matters and had the discretion to divide the marital property as it deemed necessary. We find no abuse of discretion in its determination.

Finally, the wife argues that the court abused its discretion by awarding maintenance only through June 1986. Evidence was presented that in early 1985 the wife was attending a Vo-Tech school and taking classes in data processing, word processing, and accounting. She dropped out of that program later that year and entered the Adult Learning Center, enrolling in a secretarial office management course. A counselor at the center testified that by fall 1985 the wife should have completed the course at the center. The court considered this testimony and other evidence before making its finding on the issue:

“. . .At the time of the hearing she [the wife] was unemployed, had a high school education, was functioning at an eighth grade level of competency and was being trained to be an executive secretary earning an anticipated five to eight dollars per hour. Training was to be completed in the fall of 1985, at which time her employability would be deemed good, with entry level salary at approximately $12,000 per year and a good prospect for advancement to $14,000 per year within two years.”

We see no reason to disturb the lower court ruling on the maintenance issue.

The second issue is whether the District Court abused its discretion by failing to award the wife reasonable attorney fees. Section 40-4-110, MCA, states that the court may, after considering the financial resources of both parties, order a party to pay the costs and attorney fees of the opposing party. In re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 84-85, 42 St.Rep. 623, 629, discusses this issue:

“This Court has held that in a divorce case a district court must indicate its reasons for refusing to grant attorneys fees. Hammeren v. Hammeren (Mont. 1982), [201 Mont. 443,] 663 P.2d 1152, 1154, 39 St.Rep. 2222, 2223. In this case the District Court at finding No. 37 states, ‘after considering the financial resources of both parties, the Court finds that both parties have the ability to pay their own attorney’s fees and should do so.’ This is a clear indication of the court’s reasoning, therefore the denial of attorneys fees is upheld.”

The District Court states in its conclusion that “attorney fees should be paid by the parties, court costs by respondent.” It would appear that by awarding the wife a cash award of $49,218.50 the court believed that she had the necessary funds to pay her attorney fees. We deem it unnecessary to remand to the lower court for reasons justifying the denial of attorney fees.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BONNIE JEAN HOWELL, Defendant and Appellant.
    No. 86-407.
    Submitted Dec. 31, 1986.
    Decided March 18, 1987.
    734 P.2d 214.

      Gary G. Doran, Kalispell, for defendant and appellant.
    Mike Greely, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Ted O. Lympus, Co. Atty., Dennis J. Hester, Deputy Co. Atty., Kalispell, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Bonnie Jean Howell, appeals from a conviction in the District Court of the Eleventh Judicial District Court of Flathead County of one count of felony theft and two counts of misdemeanor theft.

We reverse and remand.

The decisive issue raised on appeal is whether the District Court erred when it allowed evidence of another alleged crime after it granted defendant’s motion in limine to exclude such evidence.

The defendant, Bonnie Jean Howell was charged with one count of felony theft and two counts of misdemeanor theft. The felony theft involved five pieces of jewelry taken from the home of Gary and Martha Purdy. One misdemeanor theft involved a lavender sweater taken from the home of Virginia Searight; the other, a brooch taken from the home of Deanna Irriger.

Mrs. Howell was employed as a housekeeper in all three homes. The initial complaint concerning the thefts arose from the Purdys who opened a package, which the defendant had delivered to their UPS shipping center, hoping to find the missing jewelry. The package contained the Christmas tree brooch and the sweater which were the subject of the misdemeanor counts, but not the missing jewelry. The package contained other items, but defendant was only charged with stealing the sweater and the Christmas tree brooch. The record does not disclose why the defendant sent the package through the Purdy’s shipping service, nor why there was no objection made to the Purdys opening it. Mrs. Purdy testified that the package was opened by her husband who believed that the missing jewelry would be found. The jewelry was not in the package, nor was it found when the police searched the defendant’s home.

Prior to trial, but after jury selection, the defendant filed a motion in limine to exclude evidence of other alleged crimes or wrongful acts not specifically charged in the information. The court granted the motion because the defendant was not notified of the State’s intention to introduce such evidence. At the close of the State’s case the defendant moved to dismiss the felony charge for lack of sufficiency of the evidence. That motion was denied. The defendant was found guilty of all three charges. She appeals.

Did the court err when it allowed the introduction of evidence of another alleged wrongdoing contrary to its order on defendant’s motion in limine to exclude that evidence? We hold that it did err.

Rule 404(b), M.R.Evid. states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Rule 403, M.R.Evid. states that otherwise relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, . . .”

As we said in State v. Stroud (1984), [210 Mont. 58,] 683 P.2d 459, 41 St.Rep. 919, the substantive and procedural requirements for admitting evidence of other crimes or wrongs have been well established in Montana. “The four substantive requirements are (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme, plan or system; and (4) determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant... In addition, three procedural guidelines must be followed: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404(b); and (3) a cautionary jury instruction to the same effect, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct.” 683 P.2d at 465 citing State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d 631, 634; State v. Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64.

Prior to trial the state must provide written notice to the defendant that the evidence of “other crimes” is to be produced. Notice must include a statement of the purpose for which the evidence is to be presented. State v. Gray (1982), 197 Mont. 348, 352, 643 P.2d 233, 236; State v. Case (Mont. 1980), 621 P.2d 1066, 1071, 37 St.Rep. 2057, 2063.

The defendant was not notified of the State’s intention to introduce evidence of other crimes committed by the defendant. With Just as its authority the District Court properly granted defendant’s motion in limine to exclude all “evidence items allegedly taken by the defendant which are not specifically named in the informations . . .” under which defendant Howell is charged.

Two items, a lavender sweater and a Christmas tree brooch, which are the basis of the misdemeanor charges, were found in a UPS package sent by the defendant. The package contained other items which had no connection with the present charges. During trial, in spite of its ruling, the court allowed the UPS package and it’s entire contents into evidence. The jury was admonished by the court on several occasions during the course of the trial regarding how to view this evidence of other wrongful acts.

The State argues that the admission of these items was proper under Montana’s transaction rule, and that everything leading up to, including and following the event are included in the scope of the transaction. The State also argues that the items not mentioned on the charging documents are part of the res gestae, or inextricably or inseparably linked with the crime charged as part of the corpus delicti and can therefore be properly admitted into evidence. State v. Riley (1982), 199 Mont. 413, 425-426, 649 P.2d 1273, 1279. Given that the other items in the UPS package are part of the res gestae and transaction, the State contends that the requirements of Just do not apply.

We disagree. The introduction of items contained in a package along with items which are allegedly stolen does not fall under prior wrongful acts inextricably or inseparably linked with the crime charged. The evidence falls under acts which are wholly independent of the crime charged and the Jenson-Just rule does apply.

As the State argues, the jury was entitled to know the conditions under which the lavender sweater and Christmas tree brooch were found. The fact that they were found in a package being shipped by the defendant may tend to prove the elements of a crime, but there is no logical reason why it was necessary to introduce all of the items in the package. Introduction of the package alone adequately established the condition under which the items were discovered. Introduction of the other items confused the jury and was therefore prejudicial to the defendant. The record shows that admonitions to the jury by the judge along with a cautionary jury instruction was not sufficient to overcome this prejudice. In addition to the introduction of the other items in the UPS package, testimony by three of the State’s witnesses alluded to items not mentioned on the information which may have been stolen or missing. The confusion of the jury is evidenced by the following courtroom conversation:

“The Court: Members of the jury, how are you doing, do you feel alright? Okay, your next witness. Was there a head that shook no? Is there anyone here that would like a recess?
“Juror A: No, I thought there were three items that were pertinent and you mentioned only two. Did you mention something pink that was —
“The Court: Well, let me back up and with the consent of counsel reiterate what I said earlier, that the Information charging Misdemeanor Theft in this case charged the Defendant, Mrs. Howell, with having taken a lavender sweater and a brooch, or item of jewelry that is shaped like a Christmas tree.
“Juror A: I thought it was a pink top.
“The Court: Well, there were a lot of other things in there.
“Juror A: I thought earlier it was a pink top that was mentioned as one of these items.
“Mr. Doran: I would ask for a brief conference out of the presence of the jury.
“Juror B: I have some four to eleven items there and they have, I think, jurisdiction on two —, is that right?
“The Court: I don’t understand your question but I will do my very best to clarify it.
“Juror B: Well, we have these two items that was in the package and —
“Juror C: All of this was in that package —
“The Court: Sir, give me a chance to explain — we are going to take a recess and we will be in recess subject to the Court’s call.”

The Just requirements are crucial in protecting a defendant’s due process rights. In this case the defendant was prejudiced. She relied upon the court’s ruling with regard to her motion in limine and was unprepared to defend the introduction of evidence of other wrongful acts. The District Court committed error, under it’s order, in allowing evidence as to the other items in the UPS box to be presented to the jury. This was not harmless error.

“The federal constitutional test of harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”

State v. Roberts (Mont. 1981), 633 P.2d 1214, 1218, 38 St.Rep. 1551, 1555 citing Fahy v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.

In this case, the District Court’s failure to adhere to its own ruling was an abuse of its discretion and in error. The error was prejudicial and harmful to the defendant.

We reverse and remand.

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


author: MR. JUSTICE WEBER

text:
    JOHN F. SCOTT, Claimant and Respondent, v. UTILITY LINE CONTRACTORS, Employer, and State Compensation Insurance Fund, Defendant and Appellant.
    No. 86-520.
    Submitted on Briefs Feb. 5, 1987.
    Decided March 18, 1987.
    734 P.2d 206.
    Crowley, Haughey, Hanson, Toole & Dietrich, John T. Dyre, Billings, for defendant and appellant.
    Geoffrey R. Keller, Billings, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The State Compensation Insurance Fund (State Fund) appeals a summary judgment of the Workers’ Compensation Court. The court ruled that claimant John F. Scott had met the statutory requirements for making a workers’ compensation claim within one year by obtaining medical help which was billed to the Division of Workers’ Compensation, and by assisting his employer in completing an Employer’s First Report form. We affirm.

The issue is whether the Workers’ Compensation Court was correct in determining that Mr. Scott had made a “claim” within one year under Section 39-71-601, MCA.

A stipulated set of facts was submitted to the court below. On October 10, 1982, Mr. Scott injured his right arm and shoulder while shoveling heavy mud for his employer, Utility Line Contractors, in Colstrip, Montana. He did not seek medical help until October 13, 1982, when he went to the emergency room at St. Vincent Hospital in Billings, Montana. The State Fund paid that medical bill. On November 2, 1982, Mr. Scott assisted his supervisor in completing an Employer’s First Report form, which was then forwarded to the Division of Workers’ Compensation. Mr. Scott has not completed a Form 54 claim and presented it to the Division of Workers’ Compensation. A Form 54 is the usual form filed by claimants to present their claims.

Mr. Scott filed a petition for hearing before the Workers’ Compensation Court on July 1, 1986. An issue arose as to whether he had met the one year limitation period set forth in Section 39-71-601, MCA. Mr. Scott moved for summary judgment on this issue, with briefs and supporting exhibits filed by both parties. The court granted summary judgment to Mr. Scott, and the State Fund appeals.

The preliminary question of whether the summary judgment is now appealable is addressed in the State Fund’s brief. It points out the usual requirement for Rule 54(b), M.R.Civ.P., certification of appeal of a partial judgment. However, the procedural rules of the Workers’ Compensation Court do not allow for such certification. The State Fund argues that the factors usually considered by district courts ruling on Rule 54(b) certifications support consideration of this appeal now. These factors include separability of this issue and the remaining unadjudicated issues, little possibility for a need for a second review of this issue, absence of a counterclaim set-off factor, and considerations of delay and judicial economy. We conclude there is no just reason for delay in considering this issue.

Did the Workers’ Compensation Court err in determining that Mr. Scott had made a “claim” within one year under Section 39-71-601, MCA?

Section 39-71-601, MCA, provides:

“Statute of limitation on presentment of claim — waiver. (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.
“(2) The division may, upon a reasonable showing by the claimant of lack of knowledge of disability, waive the time requirement up to an additional 24 months.”

There has been no allegation of a lack of knowledge on the part of Mr. Scott of his disability so as to waive the time requirement. Therefore, the question is whether Mr. Scott presented his claim within 12 months of the accident.

The State Fund contends that determining Mr. Scott met the statutory requirement for presenting a claim is contrary to this Court’s opinion in Wassberg v. Anaconda Copper Co. (Mont. 1985), [215 Mont. 309,] 697 P.2d 909, 42 St. Rep. 388. In that case, the claimant was injured at work in June 1973. He filed a claim for compensation after the accident. He was again injured in July 1974. He did not file a claim for compensation after that accident. In 1976, the claimant saw a doctor for medical problems he described as arising out of the 1973 accident. In 1982, claimant’s counsel brought an action for disability from the 1974 accident. The company denied liability because no claim had been filed within the one-year statute of limitations. The claimant argued that the company knew about the 1974 injury because his boss had filled out a “Report of Alleged Injury” and he had seen a doctor shortly after the accident. Claimant asserted that these facts showed either that the company had accepted liability or that the statutory period was waived. This Court analyzed the elements of equitable estoppel and concluded that they were not met. Specifically, it held that there was no duty of the employer to advise the claimant of the availability of the compensation claim procedure. Since the employer was not therefore estopped from asserting the one-year bar, the bar was applicable.

Here, the issue is not whether the employer is estopped from asserting the one-year bar. The Workers’ Compensation Court decided this matter on another basis — that the actions taken were sufficient to constitute presentment of the claim within the year, as required by statute.

Mr. Scott did not file the standard workers’ compensation claim form for this injury. He did, however, seek medical care three days after the injury, and had the bill sent to the Workers’ Compensation Division. He also helped his employer fill out the employer’s report form, which included his name, social security number, address, date of birth, and wages; information about how the accident occurred and how he was injured; the name of a witness; the name of the physician and the place the injury was treated; and information about the employer. On the bottom of that form appears an “Employee’s Claim for Compensation” form, also denominated Form 54. That portion, which Mr. Scott did not complete, requests the claimant’s education, other types of work which claimant has done, number of members in claimant’s family, and information on former industrial injuries. The claimant argued, and the Workers’ Compensation Court agreed, that the purpose of Section 39-71-601, MCA, was met under the circumstances here presented. That is, notice has been given to the employer to allow it to investigate and prepare to defend on the claim.

We conclude that the Workers’ Compensation Court was correct in determining that Mr. Scott presented his claim within one year. The Employer’s First Report form completed by Mr. Scott and his supervisor contained ample information to clearly inform the employer and the division of the nature and basis of Mr. Scott’s possible claim. The medical report prepared three days after the injury also gave indications that a claim could likely result out of this injury. This contrasts with the situation in Wassberg, where the claimant did not clearly show that the employer and the division were aware of his possible claim from the 1974 injury. Further, in Wassberg, the claimant had one year previously filed a claim for injury, yet failed to do so for the injury in question. This indicated that he knew how to file, but did not do so. That factor is not present here.

We hold that the Workers’ Compensation Court correctly determined that Mr. Scott met the presentment requirement of Section 39-71-601, MCA.

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


author: MR. JUSTICE MORRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HAROLD NOEL ST. GODDARD, Defendant and Appellant.
    No. 86-280.
    Submitted on Briefs Feb. 13, 1987.
    Decided March 19, 1987.
    734 P.2d 680.
    Donald A. Garrity, Helena, for defendant and appellant.

      Mike Greely, Atty. Gen., Helena, Harold Hanser, County Atty., Billings, Donna K. Heffington, Deputy County Atty., Billings, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Defendant, Harold St. Goddard, appeals a Yellowstone County District Court jury verdict convicting him of sexual intercourse without consent. We affirm.

Defendant was a teacher and track coach during the school years 1983-84 and part of 1984-85. The victim, C.L., was under the age of 16 and an eighth grader at another school. C.L. contends that during this time, she and defendant entered into a romantic liaison. A sexual relationship allegedly started with defendant fondling C.L. on December 17, 1983. Sexual intercourse eventually occurred on numerous occasions. However, C.L. is apparently unable to remember specific details or dates other than August 9, 1984.

C.L. testified at trial that she was attending a debate conference in Billings, Montana, on August 9, 1984. Defendant allegedly came to the dorm where she was staying and drove her to a motel where he had rented a room. C.L. testified that she became angry with defendant that night and did not wish to engage in sexual intercourse with him. She further testified that she fell asleep and awoke to defendant performing sexual intercourse with her.

Defendant allegedly ended the relationship in the fall of 1984. C.L. wrote numerous letters to defendant asking him to contact her. The letters contained false information designed to engage defendant’s sympathies and force him to communicate with her. C.L.’s mother found drafts of the letters in C.L.’s wastebasket. Charges were thereafter brought against defendant, alleging that defendant engaged in sexual intercourse without consent with an individual under the age of 16 on August 9, 1984.

Defendant denies having a romantic or sexual relationship with C.L. C.L. babysat for his two sons. Defendant and his wife were friends of C.L.’s parents. Defendant contends that he and C.L.’s mother had an affair in the summer of 1984. After finding his wife in bed with defendant, C.L.’s step-father sought revenge by having these charges brought.

The jury trial lasted five days. Testimony was obtained from many individuals, including defendant, the victim, her friends, her doctor and her social worker, Linda Crummett. Ms. Crummett is a clinical social worker who specializes in treating victims of sexual abuse. She had been counseling C.L. for sexual abuse for nearly a year at the time of the trial. Ms. Crummett was a witness for the State. On cross-examination, defense counsel elicited the following testimony:

“Q. Ms. Crummett, you indicated that [C.L.] had evidenced suicidal tendencies, anxiety, extremely worried?
“A. Yes.
“Q. Now if you had falsely accused someone of having sexually assaulted you don’t you think those symptoms might likely be present?
“A. I don’t think they could be maintained over this amount of time.
“Q. You don’t think they could?
“A. Nor do I think she would submit herself to this kind of process.
“Q. You don’t think she would be extremely worried, she’d be anxious or be suicidal if she falsely accused this man of having had sexual intercourse with her, that’s your testimony?
“A. That’s possible, but I don’t think it could be sustained.
“Q. Again your testimony is based upon what she has told you, what the county attorney has told you, what the investigating officers have told you, and what her parents have told you?
“A. Yes, and I believe her.
“Q. And you believe her?
“A. Yes, I do.”

Tr. vol. I, p. 46, In. 1-24.

Defense counsel made no objection to or motion to strike Ms. Crummett’s comment that she believed the victim. There was no motion for mistrial either. In her closing argument, the prosecutor briefly referred to Ms. Crummett’s statement that she believed the victim’s story. Again, no objection was made.

Following five hours of deliberation, the jury reached a guilty verdict. Defendant was subsequently sentenced to ten years in the Montana State Prison and ordered to pay C.L. $3,000 for counseling expenses. Two issues are raised on appeal:

1. In a prosecution for sexual intercourse with a child, may an expert in sexual abuse express the opinion that she believes the story of the prosecuting witness?

2. Was it error to allow the prosecuting witness to testify that she and the defendant had engaged in sex on other occasions?

Appellant objects to Ms. Crummett’s statement that she believed the prosecuting witness as invading the province of the jury. Appellant acknowledges that no objection or motion to strike was entered at the time Ms. Crummett made the statement. He claims, however, that the issue may be raised on appeal anyway under the “plain error” rule. However, the 1983 Legislature substantially limited application of the “plain error” rule in criminal appeals.

“46-20-104. Scope of appeal by defendant. (2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-702.

“46-20-702. Types of errors noticed on appeal. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:

“(1) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;

“(2) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or

“(3) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.”

The alleged error does not meet the criteria contained in Section 46-20-702, MCA. We therefore refuse to entertain the first issue.

The second issue is whether it was error to allow C.L. to testify about other occasions when she and the defendant had engaged in sexual intercourse. Rule 404(b), M.R.Evid. and State v. Just (1979), 184 Mont. 262, 602 P.2d 957, control. Rule 404(b), M.R.Evid. states:

“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, he admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In Just, supra, this Court further limited the use of other crimes evidence. Before other crimes evidence may be admitted, the State must provide:

“1) notice of the introduction of the evidence;
“2) an explanation to the jury at the time of the introduction of the evidence about the purpose for which the evidence is introduced; and
“3) an instruction that the evidence is to be received only for the enumerated limited purposes.”

Just, 184 Mont, at 274, 602 P.2d at 963-964.

All criteria have been met in this instance. A Just, notice was filed by the State 3 days before the start of the trial. The jury was cautioned before the introduction of the evidence. See transcript, vol. I, p. 59, In. 4-18. The jury was instructed on the same matter in Instruction No. 4.

Just, supra, also contains a four-part test for determining whether the other crimes are substantively admissible. They are:

“1) similarity of crimes or acts;
“2) nearness in time;
“3) tendency to establish a common scheme, plan or system; and
“4) probative value of the evidence outweighs the prejudicial effect.”

Just, 184 Mont, at 269, 602 P.2d at 961.

Again, all criteria are met. The evidence is of crimes identical to the one with which defendant is charged. The acts occurred within a 9 month span. They show the system of operation engaged in by the defendant, engaging in a Sexual relationship with C.L. Finally, their probative value outweighs their prejudicial effect.

Affirmed.

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


text:
    In re the MARRIAGE OF ANN ROGERS, Petitioner and Respondent, and PATRICK ROGERS, Respondent and Appellant.
    No. 86-292.
    Submitted on Briefs Feb. 13, 1987.
    Decided March 19, 1987.
    734 P.2d 677.

      Johnson, Skakles & Kebe, Greg J. Skakles, Anaconda, for respondent and appellant.
    Henningsen & Purcell, Mark A. Vucurovich, Butte, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The husband appeals the property distribution entered by the District Court of the Second Judicial District, Silver Bow County, in this dissolution of marriage. We affirm in part and remand for reconsideration in part.

The issues are:

1. Did the District Court err in: a) ordering the sale of the family residence and an equal division of the proceeds; b) awarding the wife all of the personal property which she requested; c) directing the husband to pay the wife the sum of four thousand five hundred dollars ($4,500); and d) directing the husband to pay the wife an amount representing half of his interest in his retirement account?

2. Did the District Court err in adopting many of the wife’s proposed findings and conclusions?

The parties were married in 1967. At the time of the marriage, the husband had a bachelor’s degree and the wife had completed several years of college. The husband completed a master’s degree during the marriage, and was a school principal in Deer Lodge earning $36,641 per year. The wife had completed an education degree during the marriage, and was employed as a teacher in Butte. She was earning $1,314 per month. The court described her employment situation as “tenuous at best”, because she was non-tenured and had limited experience. The parties have three teen-age children, two boys and a girl.

The District Court heard testimony from both parties on their proposals for custody and property distribution. Custody of the two boys was awarded to the husband, and custody of the daughter was awarded to the wife. The husband was ordered to pay $250 per month for the support of the daughter.

The court awarded the wife all of the personal property she had requested. It directed the husband to pay her $375 as his share of the cost of high school tuition for the daughter. It also ordered him to pay the wife $4,500 as her share of an IDS account and motor home which had been sold during the parties’ predissolution separation. Further, the court ordered the husband to pay the wife one-half of the present value of his Teacher’s Retirement Account. That payment of $11,205 was to be made within 60 days of the decree. The court awarded the husband the use and possession of the parties’ home in Deer Lodge until the children in his custody reach the age of 18, when the house is to be sold and the proceeds divided equally between the parties.

I

Did the District Court err in: a) ordering the sale of the family residence and an equal division of the proceeds; b) awarding the wife all of the personal property which she requested; c) directing the husband to pay the wife the sum of four thousand five hundred dollars ($4,500); and d) directing the husband to pay the wife an amount representing half of his interest in his retirement account?

These are all questions of the sufficiency of the evidence to support the District Court’s distribution of property. In distributing marital property, a district court is guided by Section 40-4-202(1), MCA:

“In a proceeding for dissolution of a marriage . . . the court, without regard to marital misconduct, shall . . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit ...”

This Court will not alter the lower court’s distribution of marital property absent a clear abuse of discretion. In re Marriage of Garst (Mont. 1983), [206 Mont. 89,] 669 P.2d 1063, 1067, 40 St.Rep. 1526, 1530.

The husband’s first contention is that the District Court should not have ordered the family home sold after the children in his custody reach the age of majority. He argues that he would like to buy out the wife’s interest in the house and to continue living in it himself, and that there is no reason not to allow him to do that.

At the dissolution hearing, the husband presented a $45,000 appraisal of the family home and the wife gave a $52,000 valuation. It was clear from the testimony that the parties were unable to agree upon a value for the home. It is also clear that the wife is entitled to an equitable share of this marital asset. We conclude that the District Court did not err in ordering the home sold once the children reach age 18.

The husband also says it is inequitable that the wife should receive one-half the proceeds of sale of the home, since he has been making all mortgage payments since they separated and will continue to do so until the house is sold. However, the wife points out that husband’s $397 monthly mortgage payments can properly be considered in the nature of rent. We conclude that it was not error for the District Court to divide equally the proceeds of sale of the house.

Next, the husband argues that the court’s division of the parties’ personal property is in error, because the court failed to consider the effect of its property distribution on both parties. The court adopted the division of property requested by the wife. The personal property consists of modest home furnishings and personal items. In review, the division of personal property appears reasonable and we find no abuse of discretion in the award to the wife of those items she requested.

Third, the husband objects to being ordered to pay the wife $4,500 as her share of assets he liquidated during their separation. The record shows that he sold a motor home for $6,000 and closed out a $3,300 IDS account. He contends these funds were necessary to cover the expenses of himself and the three children, who were all residing with him at that time.

There is nothing in the record to indicate why the husband’s earnings were insufficient to meet the expenses of himself and the children during the period at issue. There is no question that the IDS account and the mobile home were marital property. We conclude that the District Court was within its discretion in directing that the wife receive $4,500 as her share of the marital assets sold.

Finally, the husband argues that the wife should receive her share of his retirement account only when he becomes eligible to receive his share, not now. The District Court ordered him to pay the wife $11,205 within sixty days as her share of his retirement account.

The evidence shows that the wife is having trouble meeting her current expenses, and that her present employment situation is highly tenuous. However, the uncontested asset list of the husband shows that he has no liquid assets which would enable him to pay the wife $11,205 in 60 days. He is also required to pay the wife $4,500 immediately. These are all factors which the District Court should consider in providing for distribution of the retirement account. The court may wish to consider structuring a payment plan for the wife’s interest in the retirement account. We remand this matter to the District Court with instructions to consider further the husband’s ability to pay the $11,205 as a lump sum, and the manner of payment which should be required.

II

Did the District Court err in adopting many of the wife’s proposed findings and conclusions?

The husband points out that the majority of the findings and conclusions of the District Court are the same or similar to those proposed by the wife. He points out that wholesale adoption of a party’s proposed findings and conclusions has been disapproved by this Court.

However, if the findings are sufficiently comprehensive and pertinent to the issues, and are supported by the evidence presented, they will not be overturned. Parenteau v. Parenteau (Mont. 1983), [204 Mont. 239,] 664 P.2d 900, 903, 40 St.Rep. 815, 819. It is apparent from the changes the court has made to the proposed findings and conclusions that it has reviewed and evaluated the evidence presented to it. We hold that although the court has adopted a number of proposed findings and conclusions, it did not err in issuing its findings and conclusions of law as it did.

Affirmed in part and remanded for further consideration of the manner of payment to the wife of her interest in husband’s retirement account.

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


text:
    STATE OF MONTANA, City of Eureka, Plaintiff and Respondent, v. RONALD RAY McDOLE, Defendant and Appellant.
    No. 86-413.
    Submitted on Briefs Dec. 4, 1986.
    Decided March 23, 1987.
    734 P.2d 683.

      Scott B. Spencer, Libby, for defendant and appellant.
    Mike Greely, Atty. Gen., George M. Schunk, Asst. Atty. Gen., Helena, David W. Harman, Libby, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

After a jury trial in the Nineteenth Judicial District, Lincoln County, appellant was convicted of driving under the influence of alcohol (DUI) and leaving the scene of an accident. We affirm.

The issues are:

1. Did the District Court err in admitting evidence obtained by a city police officer during a warrantless search outside the city limits?

2. Did the District Court err by not instructing the jury on the mental state element of the DUI charge?

In November 1985, Mr. McDole was driving on the Pinkham Mountain Road near Eureka, Montana. Four witnesses testified at the District Court jury trial that Mr. McDole was driving erratically and swerving from side to side on the road. One of the witnesses who had observed Mr. McDole’s driving called the Eureka police department to report Mr. McDole as a possible DUI driver. In addition, a fifth witness at the trial testified that Mr. McDole’s vehicle hit her vehicle while she was stopped at a stop sign in the city limits and then backed up and left the scene of the accident. This fifth witness testified she then followed Mr. McDole to his residence, recorded his license plate number, and proceeded to the police station to report the accident.

A Eureka police officer responded to the possible DUI and leaving the scene of the accident call and drove to Mr. McDole’s residence less than a mile outside the Eureka city limits. There, he confirmed that the truck in the driveway fit the dispatcher’s description of the vehicle and license plate number involved in the accident and that the truck hood was still warm. Mr. McDole was arrested, given a breath test, and identified by the witness whose car had been hit. Mr. McDole’s breath sample indicated a .23 alcohol content.

Mr. McDole was charged with violation of Section 61-8-401, MCA, driving under the influence, and Section 61-7-105, MCA, duty to give information and render aid. Mr. and Mrs. McDole and two of Mr. McDole’s sisters testified on the defendant’s behalf at the jury trial. Mr. McDole’s defense was that a defective wheel bearing caused his vehicle to swerve, that he had not been in an accident, and that he had begun drinking only after arriving at home.

At the District Court jury trial, Mr. McDole was convicted of DUI and leaving the scene of an accident. He was sentenced to 180 days (with all but 7 days suspended) and fined $500 for the DUI, which was his second offense, and $100 for his failure to stop at an accident scene. Mr. McDole appeals.

I

Did the District Court err in admitting evidence obtained by a city police officer during a warrantless search outside the city limits?

Mr. McDole argues that his arrest was illegal because it was made outside the Eureka city limits and without an arrest warrant. He believes that because the arrest was illegal all evidence resulting from the arrest, including the breath test results, should have been excluded from evidence at the lower court level. Mr. McDole maintains that because the City of Eureka could not produce a statute authorizing its police officers to make arrests within five miles of the city limits in accordance with Section 7-32-4301, MCA, the police officer was without authority to arrest him. We disagree.

In Montana a city or town may authorize its police force to make arrests within 5 miles of a city pursuant to Section 7-32-4301, MCA, which provides:

“The city or town council has power to make regulations authorizing the police of the city or town to make arrests of persons charged with crime:

(1) within the limits of the city or town; (2) within 5 miles thereof; and (3) along the line of water supply of the city or town.”

If Eureka had enacted an ordinance authorizing its police officers to make arrests within 5 miles of the Eureka city limits, this issue would not be here. However, Eureka did not enact such an ordinance.

There is no question that Mr. McDole’s arrest would have been legal under Section 46-6-401(l)(d), MCA, if that arrest had been made within the Eureka city limits. Section 46-6-401(l)(d), MCA, provides:

“A peace officer may arrest a person when: . . . (d) he believes on reasonable grounds that the person is committing an offense or that the person has committed an offense and the existing circumstances require his immediate arrest. “

The hit and run accident in particular, as well as the reported erratic driving, clearly required Mr. McDole’s immediate arrest in order to prevent his getting in additional accidents and possibly seriously injuring someone. In addition, the preservation of Mr. McDole’s blood alcohol content required his immediate arrest. State v. Ellinger (Mont.1986), 43 St.Rep. 1778, 1780, 725 P.2d 1201, 1203. However, Mr. McDole’s arrest was not made within Eureka so we cannot rely on Section 46-6-401(l)(d), MCA, but can only use it as guidance.

It is a well established general rule that a law enforcement officer acting outside his jurisdiction without a warrant may not make arrests. An exception to this rule is the arrest made under circumstances which would authorize a private citizen to make the arrest. See generally: Annot., Validity, In State Criminal Trial, of Arrest Without Warrant by Identified Peace Officer Outside of Jurisdiction, When Not in Fresh Pursuit, 34 A.L.R. 4th 328 (1984); 5 Am.Jur.2d Arrests Section 50, (1962, Supplement 1986); and Restatement (Second) of Torts Section 121 (1965, Supplement 1975, 1984).

In Montana, a private citizen may make an arrest pursuant to Section 46-6-502, MCA, which provides:

“A private person may arrest another when:
“(1) he believes on reasonable grounds that an offense is being committed or attempted in his presence;
“(2) a felony has in fact been committed and he believes on reasonable grounds that the person arrested has committed it; or
“(3) he is a merchant, as defined in 30-11-301, and has probable cause to believe the other is shoplifting in the merchant’s store.” By enacting Section 7-32-4301, MCA, (allowing a town to authorize a police force to make arrests within 5 miles of town), Section 46-6-502, MCA, (authorizing private citizens to make arrests), and Section 46-6-411, MCA, (authorizing a peace officer from another state who enters this state in close pursuit to make an arrest), it is clear Montana no longer adheres to the old common law rule strictly prohibiting arrests outside an officer’s jurisdiction.

A police officer outside his jurisdiction has not lost his characteristics of being a citizen and has all the arrest capabilities that a private citizen has. Thus, we hold that if an arrest by a private citizen would be lawful under the existing circumstances, the arrest by an officer out of his jurisdiction would be lawful.

In this case, the record discloses that an individual called the Eureka police department reporting Mr. McDole as a possible DUI suspect at 4:41 p.m. A police officer was dispatched to intercept Mr. McDole. Then a second person involved in an accident with Mr. McDole went to the police station at 4:55 p.m. and reported the accident, reported Mr. McDole’s leaving the scene of that accident, and reported where Mr. McDole was parked. The police officer previously dispatched was re-routed to the address .8 of a mile outside the Eureka city limits and arrived at Mr. McDole’s residence at 5:05 p.m. He confirmed that the truck parked there fit the dispatcher’s identification of the vehicle and license number involved in the earlier incidents and that the truck hood was warm. The officer testified that Mr. McDole came out of his residence, walked up to the officer with his hands in the air, appeared intoxicated, and said: “Take me! Take me! “ The officer then arrested Mr. McDole for leaving the scene of the accident, took him to the station at 5:08 p.m., read him the DUI forms, gave him a breath test, filled out the requisite arrest forms, and had the woman involved in the hit and run identify Mr. McDole.

With that background, there is no question that both the private citizen who observed Mr. McDole’s erratic driving and the private citizen involved in the accident with Mr. McDole could have arrested Mr. McDole pursuant to Montana’s citizen arrest statute. In this case, the trained Eureka police officer, armed with the citizen reports and his own observations, also had the authority to make the arrest in his capacity as a private citizen.

The Eureka police officer confirmed the citizen reports by positively identifying the truck, with its warm hood, involved in the erratic driving and accident. Perhaps the strongest confirmation came when Mr. McDole stepped out of his house in an apparently intoxicated condition, held his hands out, and said: “Take me! Take me!” This statement confirmed the likelihood that Mr. McDole was the driver of the truck when it was involved in the hit and run and erratic driving.

We conclude that the Eureka police officer, acting in his capacity as a private citizen, made a valid arrest of Mr. McDole. This result is in harmony with Montana’s criminal statutes which intend to limit injury of person or property. If the police officer had not arrested Mr. McDole, it is quite possible that he might have commenced driving again in his intoxicated condition and critically injured himself or others. Accordingly, Mr. McDole’s arrest was legal and all the evidence from that arrest was admissible.

II

Did the District Court err by not instructing the jury on the mental state element of the DUI charge?

Mr. McDole maintains that Section 45-2-103(1), MCA, requires one of three mental states to be proven for all but absolute liability offenses. Section 45-2-104, MCA, provides that absolute liability cases are limited to offenses subject to fines not exceeding $500. A person convicted of a DUI can be fined more than $500 and sentenced to jail time. Therefore, Mr. McDole maintains that DUI is not an absolute liability offense and thus requires a mental state jury instruction. We disagree.

Title 45 covers crimes generally and the mental state requirement found in Section 45-2-101, et seq., MCA, applies to those crimes. The DUI statute, Section 61-8-401, MCA, falls under the motor vehicle section of the Montana Code Annotated. If a person is under the influence of alcohol or drugs and in physical control of a vehicle on the ways of Montana open to the public, then that person can be found guilty of driving under the influence. Section 61-8-401, MCA. As a leading DUI expert states:

“Drunk driving legislation is intended to prohibit drunken operation ‘under any and all circumstances.’ The act of driving a vehicle under the influence of alcohol or drugs, or both, is ‘itself the crime.’ The state is not required to show ‘any particular mental state’ except that the driver was ‘under such influence.’ If intent were an element of the offense, situations could arise in which defendants would not be convicted under the statute because they were too intoxicated to form the requisite intent. The paradoxical and absurd result would be that the more intoxicated the driver became the better his chances of avoiding liability under the statute.”

Erwin, Defense of Drunk Driving Cases Section 1.05 (1986). Put another way, the District Court judge in this case stated: “Well, it doesn’t make any difference what your state of mind is, you just don’t operate cars on the highway under the influence. “

We hold that the District Court did not err by not instructing the jury on the mental state element of Mr. McDole’s DUI charge. Driving under the influence is an absolute liability offense not requiring the proof of a mental state by the State.

Affirmed.

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