text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN WIRTALA, Defendant and Appellant.
    No. 87-082.
    Submitted on Briefs Feb. 18, 1988.
    Decided March 25, 1988.
    752 P.2d 177.

      Bradley B. Parrish, Lewistown, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Dorothy McCarter, Asst. Atty. Gen., David Rice, Hill Co. Atty., Havre, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following a trial by jury in the Twelfth Judicial District, Hill County, John Wirtala was convicted of deliberate homicide. Wirtala alleges denial of the right to a speedy trial and sentencing errors. We affirm.

The issues before the Court are:

1. Did the District Court err by failing to grant Wirtala’s motion to dismiss for denial of the right to a speedy trial?

2. Did the District Court violate the prohibition against double jeopardy when it amended Wirtala’s sentence nine days after the original sentence had been stated in open court but before a judgment had been entered?

3. Did the District Court improperly consider a prior deferred sentence for aggravated assault which had been dismissed?

The case at hand arose as a result of the premeditated murder of Maurice Dannels, Wirtala’s step-father. From the record, it is clear that Wirtala and his mother, Eudora “Corky” Dannels, hired Melvin Wendell and Daniel Johnson to murder Maurice Dannels. The murder took place in a Havre motel room on July 22, 1984.

Following an investigation by Missoula and Havre law enforcement agencies Wirtala was arrested on July 28, 1984. An information was filed in District Court shortly thereafter. Wirtala’s motion to disqualify the presiding judge and request for continuance delayed the arraignment until October 18, 1984. At that time, Wirtala pleaded not guilty to the charge of deliberate homicide and conspiracy to commit the same.

After a motion to suppress evidence was denied by the court, Wirtala requested another continuance. Trial was initially set for March 18, 1985, but Wirtala again requested a continuance and filed a limited waiver of speedy trial.

Following another request for continuance, Wirtala entered a plea of guilty to the charge of deliberate homicide on May 31, 1985. However, the guilty plea was rejected by the court. Wirtala subsequently pleaded guilty to deliberate homicide a second time on August 22, 1985 and was sentenced on September 30, 1985.

Wirtala apparently was not pleased with the sentence he received, however. He filed a motion for appointment of new counsel and withdrawal of guilty plea on November 18, 1985. Following yet another defense request for a continuance, Wirtala was permitted to withdraw his guilty plea on May 1, 1986. A trial date of June 2, 1986 was set shortly thereafter.

Trial was eventually held on September 23, 1986. In the meantime, Wirtala had requested two additional continuances and filed a second limited waiver of speedy trial. He now comes before this Court alleging that the delay of 787 days violated his constitutional right to a speedy trial.

SPEEDY TRIAL

The right to a speedy trial “has its roots at the very foundation of our English law heritage.” Klopfer v. North Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 8. Although the concept was recognized earlier, the Magna Carta (1215) was the first assertion of the people’s right to expedited justice and freedom from oppressive pretrial incarceration. As noted by Sir Edward Coke, the Magna Carta insured that:

“[E]very subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiastical, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without déniall, and speedily without delay.”

Klopfer, 386 U.S. at 224, 87 S.Ct. at 994, 18 L.Ed.2d at 8-9, citing Coke, The Second Part of the Institutes of the Laws of England at 55 (Brooke, 5th ed. 1797).

The basic and fundamental nature of the right remains central to our system of ordered liberty. The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution (1972) guarantees any person accused of a crime the right to trial without undue delay. The State’s failure to heed the mandate of speedy trial demands dismissal of the charge.

However, the right of speedy trial is necessarily relative. The delays inherent in the protections offered the criminally accused precludes the establishment of rigid time periods. Any inquiry into a speedy trial claim necessitates a functional analysis of the right in light of the surrounding facts and circumstances of each case. State v. Waters (Mont. 1987), [228 Mont. 490,] 743 P.2d 617, 619, 44 St.Rep. 1705, 1707.

In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court set forth the test by which to balance the individuals’ right to a speedy trial with the state’s interest in public justice. This Court adopted the Barker test as stated in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64:

“These cases involve a sensitive balancing of four factors in which the conduct of the prosecution and defendant are weighed in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:
“1) Length of delay;
“2) Reason for delay;
“3) Assertion of the right by defendant; and,
“4) Prejudice.”

The length of delay triggers a speedy trial analysis. In the instant case, 787 days accrued from the point of arrest in 1984 until the day of trial in 1986. However, the “period of time” which has elapsed since the date of arrest and the “length of delay” for purposes of speedy trial are not interchangeable terms. State v. Robbins (Mont. 1985), [218 Mont. 107,] 708 P.2d 227, 42 St.Rep. 1440. The length of delay refers only to that time period chargeable to the State. State v. Harvey (Mont. 1986), [219 Mont. 402,] 713 P.2d 517, 43 St.Rep. 46. Upon examination of the record, we find that the circumstances do not mandate a speedy trial inquiry.

The right to a speedy trial protects those who want to go to trial and objectively demonstrate that desire. It is not designed to reward a criminal defendant who artificially creates delay through an avalanche of motions and hearings. State v. Carden (1977), 173 Mont. 77, 566 P.2d 780. Nor does the right protect a defendant who makes a transparent assertion of the right or sleeps on his rights during the course of a proceeding only to belatedly claim injustice as the day of reckoning draws near.

At no point in time did Wirtala affirmatively attempt to force the issue to a trial on the merits. The record discloses that Wirtala engaged in a continuing course of tactics designed to delay trial. He, inter alia, repeatedly requested continuances; moved to disqualify the judge; twice entered and withdrew his guilty pleas; and moved for new counsel. The delays caused by such actions, including a reasonable period of time until the next available trial date and the time expended in completing a presentence investigation following the aborted guilty plea, are a direct consequence of Wirtala’s own actions. It is clear that Wirtala did not really want to go to trial. In such a situation, he will not now be heard to cry denial of the right to a speedy trial.

DOUBLE JEOPARDY

Following conviction, a sentencing hearing was held on October 29, 1986. At that time, the district judge orally sentenced Wirtala to a term of 80 years, plus an additional 5 years, to run consecutively, as a persistent felony offender. Wirtala was also designated as a dangerous offender and remanded to the custody of the county sheriff for transportation to the state prison. The sentence was never reduced to writing, however.

Nine days later, on November 7, 1986, a second sentencing hearing was held. At that time, the district judge amended the original sentence to provide that Wirtala would be ineligible for parole while serving the first 40 years of the 85 year sentence. The sentence, as amended, was subsequently reduced to writing, signed by the district judge, and filed with the court. Wirtala contends that the District Court’s subsequent amendment of the sentence pronounced orally in open court constitutes a violation of the prohibition against double jeopardy as provided by-the Fifth Amendment to the United States Constitution and Article II, Section 25 of the 1972 Montana Constitution. We disagree.

In United States v. DiFrancesco (1980), 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328, the Court was confronted with the constitutionality of 18 U.S.C. Section 3576, which permits the government to appeal a sentence imposed upon a “dangerous special offender.” The controversy arose in connection with DiFrancesco’s conviction on racketeering and conspiracy charges. Although the District Court determined that DiFrancesco was a “dangerous special offender” within the meaning of 18 U.S.C. Section 3575, he was sentenced to concurrent 10 year terms, the said sentence to be served concurrently with a 9 year term imposed on unrelated federal charges. The government appealed the sentence pursuant to 18 U.S.C. Section 3576.

In response to DiFrancesco’s claim that appeal was barred by the Fifth Amendment, the Court first examined the nature and purpose of the Double Jeopardy Clause.

“That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” 449 U.S. at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340, citing North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

In light of the avowed purpose of the Double Jeopardy Clause, the high court determined that the appeal of a criminal sentence by the government is not the evil sought to be prevented. The basic design of the Double Jeopardy Clause is the prevention of successive prosecutions and the attendant threat of multiple punishments. DiFrancesco, 449 U.S. at 132-33, 101 S.Ct. at 435, 66 L.Ed.2d at 342-43. The appeal of a sentence imposed upon conviction does not expose a defendant to successive prosecutions nor multiple punishments for the same crime. A defendant remains subject to a single determination of guilt or innocence and a single, albeit potentially more severe, punishment.

Contrary to Wirtala’s contention, the imposition of a more severe sentence is not equivalent to being twice placed in jeopardy. “The Double Jeopardy Clause does not provide [a] defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.” DiFrancesco, 449 U.S. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. Nor does the “Constitution . . . require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Bozza v. United States (1947), 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822. Clearly, the Fifth Amendment does not per se prohibit the increase of a criminal defendant’s sentence at all stages of a proceeding. DiFrancesco, supra; see also North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (Double Jeopardy Clause does not prohibit imposition of a more severe sentence upon retrial). Nor do we adopt a more expansive interpretation of Article II, Section 25, 1972 Montana Constitution. We hold that neither the Double Jeopardy Clause nor Article II, Section 25 prohibited the District Court’s subsequent imposition of the parole restriction.

In a related argument, Wirtala contends that he began serving his sentence upon being remanded to the custody of the sheriff. Thus, it is alleged that the District Court lacked jurisdiction to increase his sentence. Wirtala incorrectly assumes that the oral pronouncement of sentence constitutes an entry of judgment.

It is self-evident that a person cannot begin to serve a sentence which does not yet exist. The oral sentence first pronounced by the District Court did not constitute a final judgment. State v. Enfinger (Mont. 1986), [222 Mont. 438,] 722 P.2d 1170, 1174, 43 St.Rep. 1403, 1408. A trial court remains free to modify such a ruling until such time as it is reduced to writing, signed by the district judge and filed with the court. Id. We find no error.

USE OF DISMISSED CHARGE IN SENTENCING

Finally, it is alleged that the District Court improperly relied upon an aggravated assault conviction which had been dismissed following Wirtala’s successful completion of the period of deferred imposition of sentence. We agree that the reference to the dismissed charge in the judgment was improper. See State v. Gladue (Mont. 1984), [209 Mont. 235,] 679 P.2d 1256, 41 St.Rep. 249. However, we find the error to be harmless.

The record demonstrates that Wirtala engaged in a course of conduct which resulted in the premeditated murder of Maurice Dannels. In addition, his criminal history, which includes an armed robbery conviction, demonstrates a continuing disregard for the rights and personal safety of others. The aggravated assault conviction pales in comparison to his other crimes. In light of the facts surrounding the homicide at issue and Wirtala’s violent history, we find it inconceivable that the inclusion of the aggravated assault conviction resulted in material prejudice or substantially interfered with his rights.

The judgment of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDonough, weber, hunt and gulbrandson concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

license: Public Domain

text:
    ETHEL HANSON, Plaintiff and Appellant, v. MAY OLJAR and State Farm Mutual Automobile Insurance Company, Defendants and Respondents.
    No. 87-360.
    Submitted on Briefs Feb. 11, 1988.
    Decided March 25, 1988.
    752 P.2d 187.
    Allen L. McAlear, Bozeman, for plaintiff and appellant.

      Moore, Rice, O’Connell & Refling, Christopher L. Manos, Bozeman, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Ethel Hanson appeals an Eighteenth Judicial District Court judgment in favor of Mary Oljar and State Farm Mutual Automobile Insurance Company. The District Court found that Ethel Hanson had executed a valid release of all claims relating to an automobile accident and that she was bound by the settlement teftns. We affirm.

Ethel Hanson (Hanson) and Mary Oljar (Oljar) were involved in an automobile accident in Bozeman, Montana, on May 8, 1985. Oljar’s vehicle struck Hanson’s vehicle while Hanson was stopped at an intersection. Both parties were insured by State Farm Mutual Automobile Insurance Company (State Farm). An adjuster for State Farm, Richard Brown (Brown), investigated the accident and determined that Oljar was at fault. Brown also obtained a medical report from Hanson’s doctor which listed Hanson’s permanent disabilities from the accident as “undetermined at this time.” Brown did not discuss the medical report with Hanson.

After several negotiations with Hanson, State Farm, through its adjuster, paid Hanson $4,362.85 for medical expenses, lost wages,' car rental costs, headaches, and inconvenience. In return for the settlement payments, State Farm obtained a general liability release from Ethel Hanson and her husband, Ben Hanson, on July 9, 1985. On July 15, 1985, Hanson sent a thank you note to Brown to express that she was pleased with Brown’s “settlement and prompt service

Unknown to State Farm at the time of settlement, Hanson had retained a Bozeman attorney on May 31, 1985, to represent her with regard to two automobile accidents — the May 1985 accident and an earlier accident in February of 1985. Hanson did not tell the State Farm adjuster about her attorney nor did the attorney contact State Farm about the representation.

On July 18, 1985, Hanson visited her doctor and received a copy of the same medical report sent to Brown. Hanson took the medical report to her attorney and informed him that she had received a settlement and had signed a release. That same day, Hanson’s attorney deposited $1,010.40 in a Bozeman bank payable to State Farm and sent State Farm a document entitled “Tender of Payment and Rescission of Release.” State Farm refused to accept the tender of payment. On April 14, 1986, Hanson filed this lawsuit for rescission of the release and damages.

The District Court held a non-jury trial on April 17, 1987. Thereafter, the District Court made the following findings of fact:

“1. Richard Brown, an adjuster with defendant State Farm, investigated plaintiffs claim of July 19, 1985.
“2. Both Mrs. Hanson and Mrs. Oljar were insured by defendant company. Brown’s investigation revealed that Mrs. Oljar was at fault in the automobile collision.
“3. Mr. Brown was informed of medical bills, lost income and property damage incurred by plaintiff.
“4. Brown talked with plaintiff about medical payments and lost income. He authorized an advance payment of $678.23 on June 13, 1985. Brown paid advances on wages and medical bills when presented by plaintiff. No other bills were presented.
“5. Brown and plaintiff talked about four or five times about the matter.
“6. On July 9, 1985, Brown secured from plaintiff and her husband a release of all claims for the payment of $4,362.85. The document was signed at the Hanson residence. Brown issued drafts for car repair, car rental and a draft to plaintiff for $1,010.40.
'“7. Brown had seen a medical report on plaintiff’s condition prior to obtaining the release on July 9, 1985.
“8. At this meeting, Brown agreed to pay for plaintiff’s car rental expenses and property damage. There were no outstanding medical bills.
“9. Brown did not show the medical report to the plaintiff and does not know if he discussed it with her.
“10. The parties discussed plaintiff’s headaches and inconvenience. Brown offered $700; plaintiff’s counteroffer was $1000. Brown claimed that the release was ‘final and complete’ except for additional medical expenses up to $3000 for 180 days from the date of the agreement.
“11. Brown gave no itemization as to which policy was being assessed for plaintiff’s damages, but Brown authorized all payments to be made under the Oljar policy.
“12. Ben Hanson, plaintiff’s husband, testified that on July 9, 1985, he paid no attention to the conversation between plaintiff and Mr. Brown. He did hear ‘inconvenience’ due to problems renting a car. Mr. Hanson suggested $1000 and Brown agreed. Mr. Hanson does not remember any reference to medical problems. Mr. Hanson did not realize that the release was ‘final’ and claims Brown misrepresented that it was not final.
“13. Mr. Hanson claims that he has to do most of the driving, and his wife is afraid of another collision.
“14. Mr. Hanson admitted that Brown said other medical bills could be paid under the release.
“15. Plaintiff testified that she had two accidents in 1985. The accident in question was the second accident.
“16. Plaintiff retained Mr. McAlear for personal injuries only on May 18, 1985.
“17. Mr. McAlear also represented plaintiff on the first accident and recovered a settlement for personal injuries. Plaintiff settled her own property damage claim.
“18. Plaintiff had not seen any report from Dr. Heetderks, her family physician.
“19. Plaintiff denies that the release was final. For example, she remembers her husband told Brown that the future was uncertain about plaintiff’s injuries.
“20. Plaintiff received the Heetderks report on July 18, 1985, and immediately took it to Mr. McAlear.
“21. Mr. McAlear thereafter tendered back the sum of $1010.40 and deposited the same in an interest-bearing account at First Security Bank.
“22. Plaintiff claims that she suffered headaches which kept her awake at night. She has a fear of having another accident.
“23. Plaintiff admits that she told no one that Mr. McAlear had been retained by her concerning the Oljar accident.
“24. Plaintiff admits to having received, different drafts from Brown.
“25. Plaintiff has not seen a physician for her headaches after signing the release form.
“26. Except for the two 1985 accidents, plaintiff has had no dealings with the insurance adjuster.
“27. After the release was signed, plaintiff wrote a ‘thank you note’ to Mr. Brown.
“28. Brown had no communication with anyone but plaintiff until the July meeting.
“29. Plaintiff did not express any confusion about the form.”

From these findings of fact, the District Court made the following conclusions of law:

“1. The release form is clear and unambiguous. The parties engaged in negotiations as to the final sum. Plaintiff is bound by the terms of the settlement. Defendant’s adjuster was not guilty of any impropriety. Plaintiff shall take nothing by her complaint.
“2. Defendant is awarded costs.”

Hanson raises the following issues on appeal:

(1) Has Montana adopted the modern liberal rule on construction of releases on a single party personal injury case?

(2) What factors should a court consider in determining whether or not a release should be set aside?

From Hanson’s briefs, we identify the following issue on appeal: Can Ethel Hanson’s alleged intent that the release not be a full and final settlement serve to nullify the release? The District Court’s findings of fact are undisputed on this appeal. We must determine from the record of this case whether there is substantial credible evidencé to support the District Court’s findings and conclusions. In re the matter of B.T. (Mont. 1986), [223 Mont. 287,] 725 P.2d 230, 232, 43 St.Rep. 1728, 1730. The District Court will not be reversed unless the findings are clearly erroneous and represent an abuse of discretion. Rule 52(a), M.R.Civ.P.; Walker v. Larson (Mont. 1986), [223 Mont. 333,] 727 P.2d 1321, 1322-23, 43 St.Rep. 1765, 1767.

Hanson urges this Court to adopt a “liberal rule of construction” regarding releases. She derives this “liberal rule” from strained interpretations of several cases regarding releases to argue that her intent was not to make a final settlement. Hanson requests that we examine her intent to conclude that the release should be rescinded.

It is clear from previous decisions of this Court that we must apply the law of contracts to determine the validity of a release such as presented in this case. Westfall v. Motors Insurance Co. (1962), 140 Mont. 564, 568, 374 P.2d 96, 98-99. “[A] release ... is subject to recession for the same reasons as other contracts.” Westfall, 374 P.2d at 98-99. Accordingly, a release obtained through fraud, mutual mistake, or with inadequate consideration may be rescinded under proper circumstances. Krusemark v. Hansen (Mont. 1981), [__ Mont. __,] 627 P.2d 1202, 1205, 38 St.Rep. 594, 598; Westfall, 374 P.2d at 99. No evidence exists in the record of this case to show that the release was entered into fraudulently, through mutual mistake, or without adequate consideration. Hanson declines to argue the available contract theories for rescinding the release saying only that such theories are reversions to outdated principles of law that do not apply to this case.

Hanson’s authority regarding the so-called “liberal rule” of interpreting releases does not support her position. These cases stand for the general proposition that the intent of releasor at the time of the release may be considered as a factor to determine whether a release by an injured party of one tort-feasor thereby releases all concurrent tort-feasors. See e.g., Kussler v. Burlington Northern, Inc. (1980), 186 Mont. 82, 88, 606 P.2d 520, 522-23; McCloskey v. Porter (1973), 161 Mont. 307, 315, 506 P.2d 845, 849. This Court is not presented with an issue in this case to which the above-stated rule might apply.

Hanson’s intent, unknown to Oljar, Brown, or State Farm, cannot change the obvious intent of the release in this case. Richardson v. Safeco Ins. Co. of America (1983), 206 Mont. 73, 669 P.2d 1073, 1075, 40 St.Rep. 1515, 1517. Although the record indicates that Hanson may have some problems or injuries related to the automobile accident for which she might not have been compensated, her “latent discontent with the release cannot be grounds for alteration of [an] express” agreement to settle with State Farm. McCloskey, 506 P.2d at 849-50.

There is substantial credible evidence in the record to support the District Court’s findings and conclusions. Hanson negotiated with State Farm over the terms of the settlement and signed an “Agreement and Release” discharging Oljar and State Farm “from all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever . . . [for] all injuries, known and unknown terms . . .” The District Court correctly concluded that the terms of the agreement and release were clear and unambiguous and that Hanson was bound by those terms.

Affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

I dissent from the foregoing Opinion, which is a decidedly minority view of the courts which have passed upon the question here presented.

Just as important, we should take this opportunity to stop what is apparently a dastardly practice by State Farm, that is, procuring from its Montana insureds releases which purport to be final in form, but which allow for medical bills incurred for the next six months, not exceeding $3,000 in total, but deny the insureds any further right to recover either for pain or suffering or permanent harm as shown by the future bills.

Most pointedly, State Farm acquired this release without discussion given to its insured to explain the meaning of the release either to the unknown injuries, or to the application of the future medical benefits.

Finally, the majority has overlooked or chosen not to discuss the ramifications of the adjuster here obtaining a doctor’s report concerning the insured from her doctor, and never disclosing to the insured what that doctor’s report contained prior to obtaining her signature on the release.

When an insurer presents a release to an injured party, the insurer has a duty, if the release contains a reference to unknown injuries, to explain particularly the significance of that clause to the proposed releasee:"

“Where a release is given with reference only to known injuries, and it subsequently develops that a substantial injury then existed which was unknown to the parties and not taken into consideration, the release may be avoided on the grounds of a mutual mistake. This is true even though the instrument contains a clause, not the subject of express bargaining, that the release shall apply to all unknown and unanticipated injuries. Where an injured person, not knowing that the accident had caused a certain injury, signed a release tendered by the insurer of the person causing the injury, and unknown to the releasor the release contained a clause which related to unknown injuries and to conditions which might thereafter develop, the release was not binding as to the unknown injuries. If the person who induced the releasor to sign the release did not know of the clause relating to unknown injuries, the case presented a mutual mistake of fact. And if the person who tendered the release for signing knew of the clause and knew that the releasor was not aware of the clause, he had a duty to inform the releasor of the existence of the clause.”

66 Am.Jur.2d 694, 694, 695, Release, Section 20.

In Kussler v. Burlington Northern, Inc. (1980), 186 Mont. 82, 606 P.2d 520 and McCloskey v. Porter (1973), 161 Mont. 307, 506 P.2d 845, wé were governed by the intent of the parties as to the release in reaching our decisions. In every case where a release is obtained by an insurer which contains reference to unknown injuries, intent is an issue, and one about which the court must specifically make a finding. Although a releasee may, if he intends to do so, release any rights respecting future injuries, he should not be bound by any release which signs away those future rights without any discussion or without the intent of the releasee. That is the majority view:

“As previously noted, there are essentially two lines of authority which have developed around similar cases in other jurisdictions. The line followed in a small minority of jurisdictions is typified by the Oregon case of Wheeler v. White Rock Bottling Company, 229 Or. 360, 366 P.2d 527 (1961). In Wheeler, the court adhered to traditional conceptions regarding contract law, and held a release binding upon a pregnant woman with subsequently discovered back injuries. While this case is not directly in point as the plaintiff in that case was aware of some back pain which her physician may have thought pregnancy originated, it does illuminate the inflexible and dogmatic approach of some courts. In their considerations of the validity of general liability waivers, these jurisdictions appear not to differentiate between standards applicable to commercial transactions and those peculiar to personal injuries. See generally, Annot. Section 15, 71 A.L.R.2d 82, 167-69 (1960).
“The better reasoned rule adopted by an overwhelming majority of jurisdictions permits the avoidance of a release in circumstances where later discovered injuries were clearly not contemplated by the parties at the time of release. A reasonably succinct statement of this line of authority is set forth by the California Supreme Court in Casey v. Proctor, 59 Cal.2d 97, 112-113, 28 Cal.Rptr. 307, 378 P.2d 579 (1963):
“ ‘Under the majority rule, however, a release may not ipso facto be avoided upon the ground of later discovered injuries. The essence of the rule is that the wording of the release is not conclusive; it is a question of fact whether the parties to a release actually intended to discharge such liability . . .’ ”

Finch v. Carlton (1974), 84 Wash.2d 140, 524 P.2d 898, 900.

We should look to our sister state of Idaho, which in Ranta v. Rake (1967), 91 Idaho 376, 421 P.2d 747, pointed out that the liberal policy of avoiding releases where there are unknown injuries is guided by the following factors:

“(a) the peculiar dignity the law accords the human person as distinguished from articles of commerce; (b) the very real possibility of being mistaken about the long range effects of damage to human tissue; (c) the inequality of the bargaining positions of the contracting parties; and, (d) the amount of consideration received compared to the risk of the existence of unknown injuries.”

421 P.2d at 751.

In addition to the foregoing factors, the State of Washington added the haste, or lack thereof, with which the release was obtained.

Finch, 524 P.2d at 901.

Moreover, we should direct our attention to the kind of release that was taken by State Farm in this case. This was a case where State Farm represented as an insurer both the responsible party, Mary Oljar, and the injured party, Ethel Hanson. Each were operating automobiles which were insured at the time by State Farm Mutual Automobile Insurance. A special duty in that situation devolved upon State Farm to be fair and equitable in its handling of the claims as between its two insureds. It is not disclosed in the record whether the car driven by Ethel Hanson in this case provided coverage, separate from the other coverages, for medical payments to those persons injured in the operation of the Hanson automobile. If it did, the form of release taken by State Farm was even more reprehensible. A copy of the release taken from Ethel Hanson is shown in the exhibit 1 attached to this Dissent. It will be seen that in addition to the monies paid by State Farm under the term of the release, there was in addition a printed schedule of benefits in which State Farm agreed to pay an amount not to exceed $3,000 for medical, dental or surgical treatment furnished to the releasee within six months following the date of the agreement, as a result of the accident described, excluding expenses paid by any collateral source. In this case, State Farm, being in possession of the doctor’s report, and Ethel Hanson, not being in possession of it, tendered the release by including in it what is essentially a health and accident insurance form providing for future medical benefits. The evil in the form is that though the releasee may have recovered up to $3,000 for future medical expenses, the release would preclude, and by the holding of the majority here, does preclude, any further recovery for permanent injuries, pain and suffering or other elements of damages that might accrue to the releasee by virtue of the accident. Absolutely nothing about this feature of the release was discussed or pointed out by the adjuster to Ethel Hanson. If procurement of such a release is a practice of State Farm, and the printed form indicates it Is, this Court should condemn that practice right now.

I would reverse this case under the present state of the evidence. I would remand it to the District Court for further proceedings to determine the intent of the releasee at the time the release was signed, and recognize the release only to that extent.

MR. JUSTICE HUNT concurs in the foregoing dissent.


author: MR. JUSTICE SHEEHY

text:
    WALTER ADAM SCHWEITZER, Plaintiff and Counter-Defendant, v. ESTATE OF ANDREW C. HALKO, Defendant and Counter-Plaintiff. ESTATE OF ANDREW C. HALKO, Third Party Plaintiff and Appellant, v. CLARKE M. DAWSON, Third Party Defendant and Respondent.
    No. 87-371.
    Submitted on Briefs Jan. 7, 1988.
    Decided March 25, 1988.
    751 P.2d 1064.

      Howard F. Strause, Great Falls, for plaintiff and counter-defendant, defendant and counter-plaintiff.
    William Conklin, Great Falls, for Dawson.
    Bradley Parrish, Lewistown, for Schweitzer.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The Estate of Andrew Halko appeals from an order of the District Court, Tenth Judicial District, Judith Basin County, dismissing their claims against the defendant Clarke Dawson on the grounds that the applicable statute of limitations had run. We affirm.

The Halko estate presents two issues on appeal. They are:

1. Did the trial court err in granting summary judgment on the basis of the statute of limitations having run?

2. Did the trial court err in granting summary judgment on the basis of the in pari delicto doctrine?

Andrew and Mary Halko were an elderly couple with significant land holdings. In 1977, the Halkos executed reciprocal mutual Wills. The Wills devised a segment of the Halko’s property to Mary’s sister and niece, Genevieve Schultz and Emily Hastings. Each Will provided that the testator would not change the Will once the other spouse was deceased. Mary Halko died in 1980 and was survived by her husband, Andrew. At the time of Mary’s death, neither of the mutual and reciprocal Wills had been revoked or modified. After Mary’s death, Andrew became displeased with Mary’s relatives and decided to disregard the Will and sell that segment of property which under the terms of the Will would pass to Schultz and Hastings.

Andrew sold the land to Walter Schweitzer, a neighboring farmer who had previously expressed an interest in purchasing the property. In October, 1980, Halko and Schweitzer entered into a lease agreement with an option to purchase. The agreement was a standard form document which Halko and Schweitzer filled out without the benefit of legal assistance. The document entitled “Earnest Money Receipt” granted Schweitzer a 12 month lease on the property with an option to purchase. The evidence indicates both parties believed that the agreement which they entered into was not a binding contract.

After executing the document, Halko expressed a desire to have his attorney draw up “a legal contract” as he believed the document which he and Schweitzer had signed was “not binding enough.” Schweitzer believed the “Earnest Money Receipt” agreement was a temporary agreement that would be finalized later.

Halko consulted Clarke Dawson, a Great Falls attorney regarding the sale of the property to Schweitzer. Dawson had already been retained by Halko to handle the probate of Mary Halko’s estate. As such, Dawson had knowledge of the reciprocal Will including the devise of the property (which was the object of the sale) to Hastings and Schultz.

Dawson prepared an option agreement for Halko and Schweitzer which was executed in November, 1980. Subsequent to the execution of the option agreement, Halko requested Dawson to draft a new Will for him omitting the devises to Hastings and Schultz. Andrew Halko executed this Will in March, 1981.

In April, 1981, Hastings and Schultz filed suit against Halko claiming Halko breached a contract with his wife made for their benefit. The District Court enjoined Halko from selling or disposing of the land.

In October, 1981, Schweitzer attempted to exercise his option agreement with Halko. Halko refused as the temporary restraining order precluded any conveyance of the land which was the subject of the option agreement. Schweitzer sued Halko as a result of this breach.

The lawsuit brought by Hastings and Schultz was eventually settled in March, 1984. An order was entered by stipulation of parties concluding the action. The order provided that all Wills executed by Andrew Halko subsequent to 1977 were legally void, the order further provided that the disputed land would pass to Schultz and Hastings following Halko’s death.

Halko died in July, 1984, and his estate succeeded him as the defendant in the suit initiated by Schweitzer.

In 1985, the Estate of Halko filed a third party complaint (which it later amended) against Clarke Dawson alleging malpractice, breach of contract, and breach of indemnity in this matter. Halko’s estate contended that Dawson exposed Halko to liability either to Schweitzer or to Schultz and Hastings when he drafted the option agreement. The Estate further contends that Dawson committed malpractice in: drafting the March 9, 1981 Will and omitting the devise to Schultz and Hastings, and allowing Halko to exercise the revised Will.

Dawson moved for summary judgment claiming that the estate’s claims were barred by the statute of limitations. The court received briefs from both parties as well as affidavits and other materials.

In June, 1987, the District Court filed an order granting the motion for summary judgment. The court held that the claims were barred by the statute of limitations finding, as a matter of law, that Andrew Halko had knowledge of Dawson’s acts more than three years before the third party complaint was filed by his estate. In the alternative, the District Court found that Halko had been in pari delicto with Dawson, as to all matters at issue. The court held that Halko’s estate is charged with Halko’s knowledge and as such the claims are barred on grounds of in pari delicto. From this order, plaintiffs appeal.

In pursuing a third party complaint against Dawson, the estate stands in the shoes of the decedent Halko. Section 27-1-501, MCA. As such, Halko’s knowledge concerning the alleged malpractice on the part of Dawson is imputed to his estate.

As the District Court correctly noted all of the counts of the original and amended complaint, regardless of how they are described sound in legal malpractice. The specific statute of limitations for legal malpractice is Section 37-2-206, MCA, which provides:

“27-2-206. Actions for legal malpractice. An action against an attorney licensed to practice law in Montana or a paralegal assistant or a legal intern employed by an attorney based upon the person’s alleged professional negligent act or for error or omission in the person’s practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission, whichever occurs last, but in no case may the action be commenced after 10 years from the date of the act, error, or omission.”

Recently, this Court construed Section 27-2-206, MCA, in Schneider v. Leaphart (Mont. 1987), [228 Mont. 483,] 743 P.2d 613, 616, 44 St.Rep. 1699, 1702, where we stated:

“. . . the Montana legal malpractice statute of limitations, Section 27-2-206, MCA, only allows the tolling of the statute of limitations until such time as the attorney’s negligent act is discovered or through the use of reasonable diligence should have been discovered. Burgett v. Flaherty (Mont. 1983), [204 Mont. 169,] 663 P.2d 332, 334, 40 St.Rep. 748, 751. There is no statutory requirement that the legal malpractice statute of limitations be tolled until a party discovers his or her damages 27-2-206, MCA.”

It is the knowledge of facts essential to the cause of action for legal malpractice, not knowledge of legal theories upon which an action is based that determines when a cause of action for legal malpractice accrues. Burgett, 663 P.2d at 334, 40 St.Rep. at 751.

In the immediate case, the acts complained of were committed by Dawson considerably more than three years prior to the bringing of this action. Dawson drafted and had Halko execute a “formal” option agreement with Schweitzer on November 15, 1980. Clearly, Halko was cognizant of the facts constituting the alleged wrong as he was an active participant in those acts. For purposes of the summary judgment motion, any claim based on this allegedly wrongful act expired in November, 1983.

The second alleged wrongful act occurred when Dawson at Halko’s request drafted the subsequent Will which Halko executed March 9, 1981, deleting the devises to Emily Hastings and Genevieve Schultz. Again, Halko almost certainly had knowledge of the facts that eventually gave rise to his estate’s cause of action, at the very least he had sufficient information to allow him to discover the facts through the use of reasonable diligence. The very latest Halko became aware of Dawson’s alleged act of malpractice in redrafting the Will was April 21, 1981, when Halko was sued as a result of this new Will by Hastings and Schultz. For the purposes of the summary judgment, any claim resulting from the allegedly wrongful act of redrafting Halko’s Will expired long before Halko’s estate brought the immediate action.

As we have found, the plaintiffs’ action is barred by the statute of limitations (Section 27-2-206, MCA) we need not address the in pari delicto issue.

Affirmed.

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


author: MR. JUSTICE HUNT

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. LEONARD PETER LAMPING, Defendant and Appellant.
    No. 87-106.
    Submitted on Briefs Feb. 25, 1988.
    Decided March 29, 1988.
    752 P.2d 742.
    Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., Mike McGrath, Co. Atty., Carolyn Clemens, Deputy County Atty., Helena, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Leonard Peter Lamping, the defendant, was convicted of sexual intercourse without consent by jury trial in the District Court of the First Judicial District, Lewis and Clark County. Defendant appealed.

We affirm.

The issues raised on appeal are:

1. Whether the District Court erred in denying the defendant’s motion for a new trial?

2. Whether sufficient evidence exists to sustain the defendant’s conviction for sexual intercourse without consent?

On October 29, 1986, Leonard Peter Lamping, the defendant, was convicted under Section 45-5-503(1) and (3), MCA, of sexual intercourse without consent arising from a March 31, 1986 incidence. At the time of the act, Lamping was 45 years of age and the victim was 15 years of age. Lamping was sentenced to serve 25 years in prison with 10 years suspended.

The series of events which lead to the felonious act began on March 30, 1986 when the victim and a female companion ran away from home. The two girls spent the day in the Scratch Gravel Hills. Later that day, the girls received a ride into the Helena city limits and went to the home of the victim’s boyfriend. The boyfriend was not at home, so the girls went to the apartment building which housed an acquaintance, Rick, and also the defendant, Lamping. The girls decided to remain in the hallway but were later invited into the two-room apartment by Lamping. The evening of March 30, 1986, the girls slept on the floor of the apartment which housed, among others, the defendant Lamping.

The following day, March 31,1986, the girls remained in the apartment. The victim testified that early in the evening she became tired and laid down on the bed located in the front room. She further testified that Lamping then laid down on the bed next to her and performed the sexual act. Lamping testified that he did not perform any sexual acts on the child nor touch her in an inappropriate way. He further testified that he had laid down on the bed first and that the victim then laid down next to him.

Fourteen other people were available to testify to what they saw transpire between Lamping and the victim during the early evening of March 31, 1986; to what actions the victim took to escape Lamping; and to whether she appeared scared during any of this time. At the trial, the State called five out of the possible 14 witnesses they had listed. Among those not called to testify was Kenneth Bennett.

The first issue raised on appeal is whether the District Court erred in denying Lamping’s motion for a new trial. Lamping argues that Kenneth Bennett’s proposed testimony was newly discovered evidence upon which the District Court should have granted him a new trial. Lamping had access to a prepared police report that indicated Bennett’s proposed testimony, yet Lamping claims that the “exact nature” of Bennett’s proposed testimony was not known to him until after the trial and conviction. In asserting his claim, Lamping relies upon the State’s decision not to call Bennett to testify after the State served him with a subpoena. Lamping argues that once he was aware that Bennett was served with a subpoena he reasonably believed that Bennett would testify.

The State interviewed Bennett on October 27, 1986 and decided not to have him testify because past experiences proved he was an unreliable witness and because parts of his testimony were cumulative. The District Court determined that the State did not hide a witness from Lamping and that Bennett’s proposed testimony would be cumulative. The court thus denied Lamping’s motion for a new trial based upon Lamping’s claim of newly discovered evidence.

The District Court did not abuse its discretion in refusing to grant a new trial. Section 46-16-702(1), MCA, allows a district court to grant the defendant a new trial “if required in the interest of justice.” However, applications for new trials are not favored when a defendant has had ample opportunity to present his case. State v. Pease (Mont. 1987), [227 Mont. 424,] 740 P.2d 659, 664-65, 44 St.Rep. 1203, 1210; State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 909, 41 St.Rep. 1277, 1287; State v. Higley (Mont. 1980), [190 Mont. 412,] 621 P.2d 1043, 1055, 37 St.Rep. 1942, 1955; State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055. In the present case, Lamping argues that the “exact nature” of Bennett’s proposed testimony was not available to him at the time of trial. The record demonstrates that the State listed Bennett as a witness; Lamping had access to the police report indicating the nature of Bennett’s proposed testimony; and Lamping made little or no efforts to contact Bennett to question him about his statement to the police officer. Lamping also made no efforts during the trial to call Bennett after knowing the State was not going to call him.

The State does not have an obligation to call every witness listed nor an obligation to reveal the “exact nature” of a witness’s testimony. The District Court found that the State did not hide a witness from Lamping. The record supports this finding and we conclude that Lamping had ample opportunity to determine for himself the “exact nature” of Bennett’s testimony and to present his case. Thus, Lamping’s motion for a new trial is disfavored, but the application of the factors listed in Greeno to the present case is required to determine whether the District Court properly denied the motion.

In Greeno, this Court sets forth six factors that governs when a new trial, based on newly discovered evidence, should be granted. The six factors are: (1) knowledge of the evidence came after the trial; (2) lack of due diligence is not the reason for not discovering the evidence earlier; (3) the evidence is so material that upon a new trial a different result is likely; (4) the evidence is not cumulative; (5) the witness whose evidence is allegedly newly discovered must support the application for a new trial by affidavit; and (6) the evidence must not merely tend to impeach the character or credibility of a witness. Greeno, 135 Mont. at 586, 342 P.2d at 1055 (citing State v. Matkins (1912), 45 Mont. 58, 68, 121 P. 881, 885). The District Court in this case held that Bennett’s proposed testimony was cumulative. A review of the record supports this finding.

The record shows that if Bennett had been called to testify, the relevant parts of his testimony would have included that, while he was in the apartment, he did not see Lamping and the victim under any covers while they were on the bed and he never saw the victim in her underwear; that he assisted the victim out of the bathroom window; and that she was not bleeding when she escaped the apartment nor did she appear scared when she escaped. In this case, four or more witnesses testified to each of the above facts. Parts of the witnesses’ testimony harmonized with Bennett’s proposed testimony and other parts contradicted it.

Lamping contends that Bennett’s proposed testimony is not cumulative because three statements of the proposed testimony completely contradicts all of the other witnesses’ testimony and that such testimony would allow a jury to believe Lamping’s testimony and reject the victim’s and other witnesses’ testimony. Consequently, Lamping argues that Bennett’s proposed testimony would probably produce a different result.

As long ago as 1912, in State v. Matkins (1912), 45 Mont. 58, 121 P. 881, this Court adopted the six factors that govern when a motion for a new trial is granted. In that decision, we expounded upon the requirement that the evidence must not be cumulative. More specifically, we stated that the alleged newly discovered evidence must not speak to facts to which there was evidence at the trial. Matkins, 45 Mont. at 68, 121 P. at 885. In the present case, four or more witnesses have already testified on all of the statements to which Bennett proposes testimony. While the statements may be contradictory to the evidence already in existence, this does not preclude such statements from being cumulative. The reasoning being that:

“[i]t is often the case that the sense of loss arouses [the appellant] to the diligent activity which he should have put forth before the trial. By importunity he then interests his friends and through them brings to his support evidence which, if not false, is only cumulative or impeaching in character, and the efficacy of which to produce a different result is speculative and dependent entirely upon the personal characteristics of another jury.”

Matkins, 45 Mont. at 67, 68, 121 P. at 885.

We hold that Bennett’s proposed testimony is cumulative of facts already in existence. The District Court did not abuse its discretion when it denied Lamping’s motion for a new trial based upon the alleged newly discovered evidence when the court found such evidence cumulative.

The second issue raised on appeal is whether sufficient evidence exists to sustain Lamping’s conviction for sexual intercourse without consent. The substantial evidence test controls when the appellant alleges the jury’s verdict is not sustainable because of insufficient evidence. State v. Oman (Mont. 1985), [218 Mont. 260,] 707 P.2d 1117, 42 St.Rep. 1565; State v. Berklund (Mont. 1985), [217 Mont. 218,] 704 P.2d 59, 42 St.Rep. 1147. Under this test, the verdict is sustained if a reasonable person might accept the evidence as adequate to support the conclusion when the evidence is viewed in a light most favorable to the prevailing party. Oman, 707 P.2d at 1120, 42 St.Rep. at 1568; Berklund, 704 P.2d at 60, 42 St.Rep. at 1148-49. Only when the evidence is so inherently incredible that a reasonable person would not accept it as true, will this Court set aside the verdict. Oman, 707 P.2d at 1120, 42 St.Rep. at 1568; State v. Radi (1978), 176 Mont. 451, 461, 578 P.2d 1169, 1176; State v. Crockett (1966), 148 Mont. 402, 407, 421 P.2d 722, 724-25.

To support Lamping’s argument that the victim’s testimony is so inherently incredible that no reasonable person ought to accept it as true, defense counsel contends that it is inherently incredible that a 45-year old man could have performed sexual intercourse on a 15-year old girl with other people in the apartment; that if such an act occurred, the victim could have protested loud enough to attract the attention of others in the apartment; and that it is inherently incredible that other people in the apartment had difficulty getting the victim out of the apartment over the threats of Lamping.

This Court will not reexamine the evidence when substantial evidence exists to support the verdict. Here, Lamping, the victim, and several other witnesses testified to the events that occurred during the evening of March 31, 1986. Parts of the witnesses’ testimony supported the victim’s testimony, other parts contradicted it and supported Lamping’s. The weight of the evidence and the credibility of the witnesses is exclusively within the province of the trier of facts. When conflicting evidence exists, the jury determines which evidence prevails. Berklund, 704 P.2d at 60, 42 St.Rep. at 1149; State v. Green (Mont. 1984), [212 Mont. 20,] 685 P.2d 370, 371-72, 41 St.Rep. 1562, 1564. The defense counsel also argues that the only evidence that established the sexual intercourse element and that the victim was bleeding is the victim’s own testimony. This Court has consistently held that a conviction of sexual intercourse without consent is sustainable based entirely on the uncorroborated testimony of the victim. State v. Maxwell (1982), 198 Mont. 498, 503, 647 p 2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458.

Upon reviewing the record, we hold that substantial evidence exists to support the jury’s verdict. We affirm.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    VERDA WYMAN, Plaintiff, Respondent, Cross-Appellant, v. DuBRAY LAND REALTY, Sharon L. DuBray, James G. DuBray, and Roger Reeh; Floberg Realtors, a corporation; and William R. Bennett, Defendants, Appellants, Cross-Respondents.
    No. 87-347.
    Submitted Feb.. 3, 1988.
    Decided March 29, 1988.
    752 P.2d 196.

      Mark S. Werner, McNamer and Thompson, P.C., James P. Healow, Sweeney and Healow, Billings, for appellants, defendants, cross-respondents.
    Thomas D. Gai, Berger, Nelson and Gai, P.C., Billings, for respondent, plaintiff, cross-appellant.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Mrs. Wyman brought this action in the Thirteenth Judicial District, Yellowstone County, after the DuBrays backed out of a buy-sell agreement to buy her real property. A jury found in favor of defendants. DuBrays appeal the denial of their attorney fees, and Mrs. Wyman appeals on two of the jury’s findings. We affirm.

The issues are presented as follows:

1. Did the court err in denying DuBrays’ attorney fees?

2. Does substantial evidence exist to support the jury’s finding that the DuBrays did not breach the contract with Mrs. Wyman?

3. Does substantial evidence exist to support the jury’s finding that the listing agent and Floberg Realtors were not negligent?

In spring 1984, Mrs. Wyman listed her home for sale with Ben Vaughn, a real estate broker in Billings. Mr. Vaughn advertised the home in a booklet with the Multiple Listing Service (MLS). When that listing expired, Mrs. Wyman listed the home with Mr. Bennett, of Floberg Realtors. When she initiated this listing, Mrs. Wyman wanted Mr. Bennett to develop a sales brochure for her home. He testified that because he was “pre-occupied” with producing the brochure, he copied the lot size, legal description, and other pertinent information concerning the home from Mr. Vaughn’s previous advertisement with MLS. He then gave this information to MLS for republication in its current booklet. He also testified that his standard procedure was to go to the courthouse to get this information, but that he never did this for the Wyman property.

The DuBrays eventually became interested in the Wyman home and viewed the property a number of times. Mr. and Mrs. Dubray testified that they each checked the lot dimensions on a plat from the courthouse because they were interested specifically in what the dimensions were. Mrs. DuBray was a licensed real estate agent at the time, and this fact was disclosed to Mrs. Wyman. Finally, in June 1985 the DuBrays and Mrs. Wyman executed an “earnest money receipt and agreement to sell and purchase” (buy-sell agreement) with $5,000 earnest money deposited. The agreement contained the legal description reflected in the MLS booklet.

Sometime after this, Mr. Bennett learned from the title insurance company that the legal description in the buy-sell was different from the correct one contained on the last deed of record in the Clerk and Recorder’s office. The incorrect description was Lot 11, Block 2, Poly Addition. The correct one was East 128.56 feet of Lot 11, Poly Addition, Second Filing. The difference was a seven foot strip along the west boundary. When this discrepancy came to Mr. Bennett’s attention, the correct legal description was penned into the buy-sell, and Mrs. Wyman initialed the change. The DuBrays, however would not intitial the change. They consulted their attorney, Who indicated that the change in legal description was material. The DuBrays therefore terminated the buy-sell and requested a return of their earnest money, although they testified that they still wanted to negotiate a purchase of Mrs. Wyman’s home. Mrs. Wyman filed this action soon after the DuBrays terminated the contract. She alleges that she suffered approximately $70,700 in damages due to Mr. Bennett’s negligence and the resultant contract breach by DuBrays. By special verdict, the jury found that DuBrays did not breach the contract, that DuBrays were not negligent, and that Mr. Bennett and Floberg were not negligent.

After trial, the DuBrays filed a bill of costs and a claim for attorney fees. Mrs. Wyman filed a motion for judgment notwithstanding the verdict as against Bennett and Floberg. The court awarded costs to all defendants but denied DuBrays’ claim for attorney fees. DuBrays appeal this decision. The court also denied Mrs. Wyman’s motion for judgment notwithstanding the verdict, and entered judgment in accord with the special verdict. Mrs. Wyman appeals this judgment, by cross-appeal.

I

Did the court err in denying DuBray’s attorney fees?

In Sliters v. Lee (1982), 197 Mont. 182, 184, 641 P.2d 475, 476, we stated the general rule that in the absence of a statutory or contractual provision, attorney fees are not recoverable. The DuBrays argue that Mrs. Wyman would have been entitled to attorney fees under a specific clause in the contract had she proved at trial that DuBrays were in default. They argue, therefore, that the right to attorney fees is reciprocal pursuant to Section 28-3-704, MCA, and that they should recover attorney fees after successfully defending the suit. Section 28-3-704, MCA, provides in pertinent part:

“Whenever, by virtue of the provisions of any contract . . . one party . . . has an express right to recover attorney fees from any other party to the contract ... in the event the party having that right shall bring an action upon the contract ... all parties to the contract. . . shall be deemed to have the same right to recover attorney fees and the prevailing party in any such action, whether by virtue of the express contractual right or by virtue of this section, shall be entitled to recover his reasonable attorney fees from the losing party . . . .”

In Town Pump, Inc, v. Diteman (Mont. 1981), [_ Mont. _,] 622 P.2d 212, 216-17, 38 St.Rep. 54, 59, we held that this statute grants reciprocal rights to one party only when the other party has an express right to fees under the contract. It follows then that the clause in the contract which provides attorney fees must be read carefully to determine the respective rights of the parties. The clause relied upon by DuBrays reads as follows:

“Time is of the essence of this agreement and of this clause. If any payment to be made hereunder or any other condition of this agreement is not timely made, then this contract, at the option of the party who is not in default, may be terminated and the non-defaulting party may recover damages and reasonable attorney’s fees to be awarded by the court in any action for a specific performance or otherwise.” (Emphasis added.)

This clause appears in a form agreement shown as approved by the Montana Association of Realtors. The clause is confusing and poorly drafted. The beginning of the second sentence seems to be defining what constitutes default for purposes of the remainder of the sentence. Neither party has contended that the other has failed to timely make a payment. That leaves us with the question whether “any other condition of this agreement is not timely made . . . .” We cannot determine the meaning of this part of the sentence without inserting words and deleting others. While it is true we must construe the language of the contract in order to support the intent of the parties, it also is true that when uncertainty exists we will construe the language of a contract against the party who drafted the contract, as the one who caused the uncertainty. St. Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229. Mrs. DuBray signed the buy-sell agreement, exhibit 11, as Sharon L. DuBray, sales representative for DuBray Land Realty, the selling real estate firm. Mrs. Dubray testified that she authored the buy-sell, exhibit 11, which Mrs. Wyman eventually signed. We observe the conflict of interest present here. Mrs. DuBray selected the form of the agreement, filled in the blank spaces, and presented the document as an offer, all the while acting in a dual capacity as selling agent and buyer. Shortly after the offer was accepted, Mrs. DuBray rescinded the contract, based upon an incorrect description which she had inserted in the agreement. Now, after successfully defending Mrs. Wyman’s lawsuit, Mrs. DuBray would have this Court construe the language of the contract to Mrs. Wyman’s detriment. We conclude that to do so under these facts would be inequitable. Given the facts of this case and the uncertain language of the contract, which we construe against the drafter, Mrs. DuBray, we affirm the holding of the District Court as to attorney fees.

II

Does substantial evidence exist to support the jury’s finding that the DuBrays did not breach the contract with Mrs. Wyman?

Section 28-2-1711, MCA, allows rescission if consent was given by mistake. Mrs. Wyman concedes that the incorrect legal description constituted mutual mistake. In Woodahl v. Matthews (1982), 196 Mont. 445, 452, 639 P.2d 1165, 1169, this Court held,

“In order for a mutual mistake by the parties to a contract to warrant rescission of the contract, the mistake must be ‘so substantial and fundamental as to defeat the object of the parties in making the contract.’ Johnson v. Meiers (1946), 118 Mont. 258, 164 P.2d 1012.” Mrs. Wyman’s argument is that the mistake in this case is “paper only” and not substantial and fundamental to the DuBrays’ object of buying a home for personal use. She claims the DuBrays were buying what they saw when they viewed the physical property. DuBrays counter by saying they relied upon certain plat descriptions of the property, not only their physical inspection. Mrs. Wyman believes that due to financial concerns, the DuBrays were relieved to have an excuse to back out of the transaction.

When, on appeal, a jury verdict is questioned we must determine whether substantial credible evidence exists to support that verdict. Clark v. Norris (Mont. 1987), [226 Mont. 43,] 734 P.2d 182, 184, 44 St.Rep. 444, 445. As stated in Kleinsasser v. Superior Derrick Service, Inc. (Mont. 1985), [218 Mont. 371,] 708 P.2d 568, 570, 42 St.Rep. 1662, 1664, “[i]t is not our function to agree or disagree with the jury verdict in reviewing, but rather to search for sufficient evidence on the record.” We will view the evidence in the light most favorable to the party prevailing at trial and, “if the evidence conflicts, the credibility and weight given to the evidence is the province of the jury and not this Court.” Clark, 734 P.2d at 185 (quoting Mountain West Farm Bureau Mutual Ins. v. Girton (Mont. 1985), [215 Mont. 408,] 697 P.2d 1362, 1363, 42 St.Rep. 500, 501).

We will not retry the case simply because the jury believed the DuBrays’ evidence over Mrs. Wyman’s. We conclude that substantial credible evidence exists in the record to support the jury’s determination.

Mrs. Wyman next urges that Section 28-2-1715, MCA, must be considered. That statute provides as follows:

“Rescission cannot be adjudged for mere mistake unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.”

The jury was not instructed in terms of this statute and the issue was not presented to the District Court. Further, Mrs. Wyman does not contend that the jury was improperly instructed. We will not address on appeal an issue not presented to the district court. Carl Weissman & Sons, Inc. v. Paulson (Mont. 1987), [227 Mont. 459,] 739 P.2d 494, 495, 44 St.Rep. 1232, 1234.

Ill

Does substantial evidence exist to support the jury’s finding that the listing agent and Floberg Realtors were not negligent?

Mrs. Wyman questions the sufficiency of the evidence supporting the jury’s finding that Mr. Bennett and Floberg were not negligent. She cites trial testimony to the effect that a reasonably prudent listing agent or broker would go to the courthouse and personally check the legal description of property to be listed with the MLS. The defendants cite substantial testimony that Mr. Bennett’s actions were reasonable under the circumstances. The jury is free to accept testimony of one side to the exclusion of the other and may reject testimony, even that of experts. Kleinsasser, 708 P.2d at 570. We hold that substantial credible evidence exists in the record to support the jury’s finding that Mr. Bennett and Floberg were not negligent.

Mrs. Wyman strenuously argues that the jury’s finding that Mr. Bennett’s conduct was not negligent directly contradicts the finding that the DuBrays were justified in rescinding the buy-sell due to mutual mistake. We hold that these findings are not mutually exclusive. The issues involved separate inquiries into the conduct of each of the defendants. As a matter of law, mutual mistake does not have to be the result of the negligent act of a third person.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH and HON. TED MISNER, District Judge, sitting for MR. JUSTICE GULBRANDSON concur.


author: MR. JUSTICE WEBER

text:
    In re the CUSTODY OF J.H., S.H., and Ja.H.
    No. 87-482.
    Submitted on Briefs Feb. 18, 1988.
    Decided March 29, 1988.
    752 P.2d 194.
    Kevin T. Sweeney, Sweeney and Healow, Billings, for appellant.
    George W. Huss, Brown and Huss, Miles City, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The marriage of J.(H.)R. (mother) and T.H. (father) was dissolved in 1982. The parents share joint custody of their children. Here, the mother appeals the decision of the District Court for the Sixteenth Judicial District, Custer County, that the children will reside with the father during the school year. We affirm.

The sole issue on appeal is whether the District Court erred in not directly asking the children, and in not allowing counsel to ask them, which parent they would prefer to live with during the school year.

At the time of the dissolution of marriage, both parents lived in Miles City, Montana. The parents’ custody agreement originally provided that their two daughters, J. and S., and their son, Ja., would reside with the mother from January 1 to June 30 of each year and with the father from July 1 to December 31 of each year. The father has remarried and the children have a stepmother and three stepsiblings in that household.

In the fall of 1985, the parents agreed that it would be in the children’s best interest if they resided with one parent for the entire school year and the other parent for the entire summer. The agreement was formalized in a written stipulation filed with the court. The children lived with the father for the entire 1985-86 school year.

In July of 1986, the mother moved to Billings, Montana, and the children went with her pursuant to her summer custody right under the modified custody agreement. The father then petitioned for a determination of where the children should attend school in 1986-87. The hearing was not scheduled until October. On August 26, the court made a temporary order that the children should be returned to Miles City to start the school year. The mother received notice of that hearing on August 29. She reported that as she and her daughters were discussing that order, the daughters told her that they had been sexually abused by their stepbrother in Miles City.

The Yellowstone County Office of Human Services investigated the abuse allegations. The daughters and their stepbrother have had a series of professional counseling sessions. In these sessions, one of the daughters has withdrawn her claim of sexual abuse, and the psychologist has essentially concluded that the other daughter’s claim is untrue. The children remained in Billings with the mother throughout this period. In May 1987, on motion of the Montana Department of Social and Rehabilitation Services, the abuse proceedings were dismissed. In June 1987, the father renewed his petition for interpretation of the joint custody provisions, and also moved for and was granted temporary custody for the summer.

At the time of the hearing, J. was age 10, S. was age 8, and Ja. was age 7. Each parent presented testimony as to their own suitability as school-year custodian of the children. Also before the court was the deposition of the psychologist who had counseled the girls concerning the sexual abuse report. The court interviewed the two girls in chambers, in the presence of counsel for both parents.

In its findings and conclusions, the court reviewed, as to each parent’s household, the children’s familiarity with the school they would be attending, their opportunities for contact with extended family, their integration into the family, the stability of the family, and the physical and mental health of each parent. While it found both parents were fit as custodians, it also found that in the father’s home the children would have greater opportunity for contact with extended family, would attend a school with which they were familiar, and would have the benefit of a stepmother and -stepsiblirigs with whom they have integrated well. The court found that the children were “too young to express any type of a binding wish as to residential custody.” It further found that “given the youth of the children, this Court is not willing to place the children in a position to have to make such decision.” The court concluded that the children should reside with their father during the school year. The mother appeals.

Did the District Court err in not directly asking the children, and in not allowing counsel to ask them, which parent they would prefer to live with during the school year?

Modification of the physical custody provisions of a joint custody decree is governed by Section 40-4-212, MCA. In re Marriage of Paradis (Mont. 1984), [213 Mont. 177,] 689 P.2d 1263, 41 St.Rep. 2041. Section 40-4-212, MCA, provides:

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community;
“(5) the mental and physical health of all individuals involved;
“(6) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
“(7) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.”

In several opinions, this Court has discussed the requirement under this section that the child’s wishes be considered. A district court was required to make specific findings stating the wishes of children ages 15, 13 and 11 as to their custodian. In re Marriage of Kramer (1978), 177 Mont. 61, 580 P.2d 439. This Court held that the lower court must give a reason if the wishes of the children were not followed. Kramer, 580 P.2d at 444. Although a district court is not always required to make specific findings on each element under Section 40-4-212, MCA, there should be an indication that the court considered all factors. Speer v. Speer (1982), 201 Mont. 418, 654 P.2d 1001; In re Marriage of Keating (Mont. 1984), [212 Mont. 462,] 689 P.2d 249, 41 St.Rep. 1865. The court must set forth the facts upon which its conclusion under Section 40-4-212, MCA, is based. In re Marriage of Hardy (Mont. 1984), [212 Mont. 25,] 685 P.2d 372, 41 St.Rep. 1566. Most recently, we have held that district courts must consider the children’s wishes as to their custodian and make findings as to their wishes or why those wishes were not followed. In re Custody of C.C. (Mont. 1985), [215 Mont. 72,] 695 P.2d 816, 42 St.Rep. 190. In that case, the record contained no evidence on the children’s wishes. Recognizing that because of their ages their wishes may have little weight, we nevertheless remanded for inclusion of evidence of their wishes.

In the present case, the psychologist stated that it was very important that the court elicit and consider J.’s and S.’s wishes as to where they would like to live. She testified that the girls wouldn’t object to switching back and forth between the two households, so long as they could be in one household for the full school year. The mother and the stepmother each testified that the children would like to live in their respective households.

The court interviewed J. and S. at some length in chambers. Without directly asking with which parent they would prefer to live during the school year, the court asked other questions about which place they preferred. The girls did not indicate any preference between the schools in Billings and in Miles City, although when asked again by counsel, J. said she liked her school in Billings “a little more.” The girls said that both parents had nice houses. They said they liked their mother’s boyfriend, their father’s wife, and their stepsiblings. They said they liked to go hunting in the fall with their dad.

In response to counsel’s questioning in the judge’s chambers, the girls repeated their allegation of sexual abuse by their stepbrother. They stated that they are not now afraid of him, however. It is important to note that the investigation of the claim has resulted in a dismissal of the abuse proceedings. We also reiterate that in extensive counseling sessions, one of the girls has withdrawn her allegation and the psychologist has concluded that the alleged sexual abuse did not occur. The psychologist testified that the girl who continues to claim the sexual abuse occurred should remain in counseling, wherever she lives.

We refuse to state categorically, as the mother would have us do, that because a district court has failed to directly ask the children which parent they would rather live with, the judgment must be reversed. Where, as here, the court has received evidence on and made findings on the wishes of the children as to their custodian, we will not disturb the discretion of the court. Because no suggestion has been made that the three children should be split up, we further conclude that the mother has not shown that the court abused its discretion in failing to interview the youngest child, the 7-year old boy.

Affirmed.

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


author: MR. JUSTICE HARRISON

text:
    FRED EASY, Plaintiff and Appellant, v. The STATE OF MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION and the State of Montana, Defendants and Respondents.
    No. 87-297.
    Submitted on Briefs Feb. 25, 1988.
    Decided March 31, 1988.
    752 P.2d 746.
    Robert T. Cummins, W. William Leaphart, The Leaphart Law Firm, Helena, for plaintiff-appellant.

      John H. Maynard, Tort Claims Div., Dept, of Admin., Helena, for defendants-respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case arose in the First Judicial District Court, Lewis and Clark County, Montana. Fred Easy, hereafter the plaintiff, appeals from the District Court’s instruction to the jury that a laid-off state employee is entitled to a “tie-breaker” preference in rehiring by state agencies. The plaintiff argues that the state employment policy affords him an absolute preference in rehiring by the State. The State contends that the intent, interpretation, and constant application of the policy has been as a tie-breaker preference, i.e. giving laid-off state workers a preference if they are as qualified as other finalists. The District Court accepted the State’s argument and issued its proposed instruction. We affirm.

The parties have submitted an agreed statement of the record, pursuant to Rule 9(e), M.R.App.P., in lieu of the complete transcript. That statement of the record reflects that plaintiff lost his job with the Department of Natural Resources and Conservation (DNRC) during a reduction in force. His position never was reopened and consequently he never was offered reinstatement. He applied for various other positions at DNRC and other state agencies but never was offered any of those jobs. He then filed a wrongful discharge action in the First Judicial District Court, Lewis and Clark County, alleging that DNRC and other state agencies failed to abide by his preferred re-employment status as a former state employee under state policy on reduction in force. The relevant portion of that policy reads:

“E. Each agency shall make a concerted effort to make other agencies aware of both the names of persons laid off and their job classifications, and agencies with vacancies shall give reinstatement preference to those employees laid off by other agencies when recruiting for a specific skill if compatible with their Affirmative Action Plan and EEO goals.”

At trial, the District Court refused to give plaintiff’s proposed instruction Number 15. That instruction read:

“If Plaintiff applied for a position with the State of Montana and met the minimum qualifications for that position, he was entitled to an absolute reinstatement preference for that position and was entitled to the job.”

Instead the court’s instruction Number 20, originally offered by the State, read:

“If Plaintiff applied for a position with the State of Montana and met the qualifications for that position, he was entitled to a tiebreaker preference for that position.”

The agreed statement of the record indicates that the Department of Administration’s Personnel Division, which had drafted the policy, intended it to be a tie-breaker preference and had consistently applied the policy as a tie-breaker preference.

On appeal, plaintiff analogizes the State’s rehiring policy to the Veteran’s Preference Act, Section 10-2-201, et seq., MCA (1983). We do not consider that analogy entirely proper and do not subscribe to the plaintiff’s contention that our decision in Crabtree v. Montana State Library (1983), 204 Mont. 398, 665 P.2d 231, controls. In Crabtree, this Court held that a statute, since repealed, that said veterans, their spouses and dependents, and handicapped civilians “shall be preferred for appointment and [state] employment” constituted an absolute preference. Crabtree, 665 P.2d at 234.

The history and application of that statute, as set forth in the District Court’s ruling and adopted by this Court on review, irrefutably indicated that the veteran’s preference “was born in the wake of World War I . . . [and] it was clear the preference was intended to be absolute.” Crabtree, 665 P.2d at 234. The section was later amended to include handicapped civilians, but had remained substantially unchanged despite nine legislative reviews. The District Court also noted that this Court in 1941 ruled the veteran’s preference required that a city mayor hire a veteran if the veteran were qualified for the position. The intent, history, and application of the statute mandated a ruling that the preference was absolute. Crabtree, 665 P.2d at 234, citing Horvath v. Mayor of Anaconda (1941), 112 Mont. 266, 116 P.2d 874.

No such intent, history, or application of the state hiring policy is evident in this case. In fact, the statement of the record before us states unequivocally that the Department of Administration has treated the policy as a tie-breaker preference. The plaintiff points out that the agency’s interpretation is not binding on the courts. However, the interpretation of an administrative rule is a question of law, and thus, one for the court. Montana Power Co. v. Environmental Protection Agency (9th Cir. 1979), 608 F.2d 334, 344; Culligan Water Conditioning v. State Board of Equalization (1976), 17 Cal.3d 86, Cal.Rptr. 321, 550 P.2d 593, 596; Borkowski v. Snowden (Alaska 1983), 665 P.2d 22, 27.

The agency’s interpretation of its rule is afforded great weight, Culligan Water, 550 P.2d at 596, and the court should defer to that interpretation unless it is “plainly inconsistent” with the spirit of the rule. Des Moines School District v. Job Service (Iowa 1985), 376 N.W.2d 605, 609. The agency’s interpretation of the rule will be sustained so long as it lies within the range of reasonable interpretation permitted by the wording. Joint Board of Control of the Flathead, Mission and Jocko Irrigation District v. United States (D. Mont. 1986), 646 F.Supp. 410, 415.

The hiring policy does not clearly preclude the notion that it was intended only to resolve situations in which two perspns, pne pf whom has been laid off from state work, are equally qualified for a state job. It imposes three qualifications. First, the agency must know of the laid-off employee; second, that laid-off employee must have the skills or training needed for the position; and third, the laid-off employee is not entitled to the job if he or she would not be compatible with the agency’s affirmative action goals. Those qualifications preclude any notion of an absolute privilege. The District Court’s interpretation of the policy and its jury instruction were not in error. ,

Affirmed.

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


text:
    REX BEACH, Claimant/Appellant, v. MONTANA DEPARTMENT OF HIGHWAYS, Employer, and State Compensation Insurance Fund, Defendants and Respondents.
    No. 87-383.
    Submitted on Briefs Feb. 4, 1988.
    Decided March 31, 1988.
    752 P.2d 200.

      Allen L. McAlear, Bozeman, for claimant/appellant.
    Nancy Butler, Helena, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Beach filed a petition in the Workers’ Compensation Court to obtain compensation in addition to that which the State Compensation Fund had agreed to pay under the occupational deafness statutes, Title 39, Chapter 71, Part 8, MCA. The court determined that Mr. Beach was not entitled to additional compensation. We affirm. Mr. Beach- raises one issue on appeal:

Did the Workers’ Compensation Court properly calculate the compensation for occupational deafness?

The parties have stipulated to most of the facts of this case. Mr. Beach worked for the Montana Highway Department from 1978 to 1985. In his job he operated a diesel mowing machine and was in the proximity of noisy heavy trucks and equipment. He suffered a loss of hearing as a result. In 1986 he received an audiogram test result which forms a basis for the computation of disability. The State Compensation Insurance Fund (State Fund) has paid for a 90.9% hearing impairment in the left ear, for 36.36 weeks at $146.50 per week or $5,326.74.

Mr. Beach contends that the Workers’ Compensation Court improperly construed the applicable statutes. Those statutes read as follows:

“39-71-805, Determining percent of hearing loss. (1) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels of the thresholds of hearing for the frequencies of 500, 1,000, and 2,000 cycles per second. Pure tone air conduction audio-metric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 25 decibels or less in the three frequencies, as measured under ISO Standard 1964, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 92 decibels or more in the three frequencies, as measured under ISO Standard 1964, then the same shall constitute and be total or 100% compensable hearing loss.
“(2) In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For every decibel of loss exceeding 25 decibels, an allowance of 1V2 % shall be made up to the maximum of 100%, which is reached at 92 decibels.
“(3) In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of impairment in the poorer ear and the sum of the two divided by six. The final percentage shall be representative of the binaural hearing impairment.
“(4) Before determining the percentage of hearing impairment, in order to allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss one-half decibel for each year of the employee’s age over 40 at the time of last exposure to industrial noise.
“(5) No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.
“39-71-808. Compensation for occupational deafness. (1) Subject to the limitations herein contained, there shall be payable:
“(a) for total occupational deafness of one ear, 40 weeks of compensation;
“(b) for total occupational deafness of both ears, 200 weeks of compensation; and
“(c) for partial occupational deafness, compensation shall bear such relation to that named herein as disabilities bear to the maximum disabilities herein provided.”

Due to the complexity of the statute, we will set forth in this opinion the necessary computations, which are substantially the same as those in the lower court’s findings of fact and conclusions of law.

Step one: Average Decibel Loss.

The first step in computing percentage of hearing loss is explained in Subsections (1) and (2). The court must calculate the average in decibels of the thresholds of hearing for each ear for the frequencies of 500, 1,000, and 2,000 cycles per second. This is the average decibel loss. Subsection (1) also explains that if the average is 25 decibels or less, then such hearing loss is not compensable. If the average is 92 decibels or more then the loss is total or 100% compensable. The statute, therefore, clearly establishes a range within which the average decibel loss must fall to be compensable.

Subsection (2) specifically explains the procedure for calculating average decibel loss. The lowest measured losses in each of the three frequencies, as measured by an audiogram, are added together and divided by three. The following table reflects the computation of this first step in calculation of percent of hearing loss, in Mr. Beach’s case:

Step two: Age Factor.

The last sentence of subsection (2) explains how these averages are translated into percentage of hearing impairment. Subsection (4), however, must first be considered. This subsection requires a deduction of one-half decibel for each year of age over 40 at the time of last exposure to industrial noise. In Mr. Beach’s case, the last exposure was at age 72; therefore, we must deduct one-half decibel for 32 years or 16 decibels from the “total average decibel loss.” Mr. Beach contends that “total average decibel loss” refers to subsection (3) which explains how to compute the binaural percentage of hearing impairment. He argues that the 16 decibel age factor must be subtracted when calculating the binaural percentage. Mr! Beach’s interpretation is not consistent mathematically. He asks us to subtract the result in subsection (4) in the computation of subsection (3), but to do so we would have to deduct a sum expressed in decibels from a sum expressed in percentages. Additionally, Section 39-71-808, MCA, allows compensation for hearing loss in only one ear. Were we to adopt Mr. Beach’s argument, the age factor would be deducted for a worker with hearing loss in both ears but not for a worker with loss in only one ear. Such a result does not comport with the obvious purpose of the age factor deduction — to avoid compensating a worker for losses due to age rather than work conditions. Rather, we conclude that the age factor must be deducted from the average decibel loss for each ear, determined previously in step one. That calculation is illustrated as follows:

Right ear: 30-16 = 14 decibels.

Left ear: 101.6-16 = 85.6 decibels.

Step three: Monaural Hearing Impairment Percentage.

Now, we return to the second sentence of Subsection (2) which explains how to translate the hearing loss from decibels to percentages.

“For every decibel of loss exceeding 25 decibels, an allowance of V-h% shall be made up to the maximum of 100%, which is reached at 92 decibels.”

We observe that after taking into account the age factor from the previous calculation, the right ear had an average hearing loss of 14 decibels. Under the standard set froth in Subsection (1), this hearing loss if not compensable because it is less than 25 decibels. The percentage of occupation impairment to the right ear is 0%. to determine the percentage of impairment in the left ear, we must multiply 1V2 % (.015) times every decibel of loss exceeding 25 decibels.

.015 (35.6 - 25) = .909

The left ear, then, has a 90.9% hearing impairment.

Mr. Beach argues that once the excess over 25 decibels is multiplied by IV2 %, the 25 decibels should be added back into the equation. Again, to follows his interpretation, we would have to add a sum expressed in decibels to a sum express in percentages. That would result in a mathematically incorrect computation. The Workers’ Compensation Court provided an explanation why the statute utilizes a 25 decibel floor of compensability.

“The statutory language ‘. . . such losses of hearing shall not then constitute any compensable hearing disability.’ is clear. The logic behind a 25 average decibel loss being noncompensable, as well as why a 92 average decibel loss is total, is found in Guides to the Evaluation of Permanent Impairment, American Medical Association, pp. 103-4, (1971).

“In order to evaluate the hearing impairment, it must be recognized that the range impairment is not nearly as wide as the audio-metric range of human hearing. Audiometric zero, which is presumable the average normal threshold level, is not the point at which impairment begins,. If the average hearing level at 500, 1,000 and 2,000 Hz is dB (15dB, ASA — 1951) or less, usually no impairment exists in the ability to hear everyday speech under everyday conditions. At the other extreme, however, it the average hearing level at 500, 1,000 and 2,000 Hz is over 92.7 dB (81.7 Db., ASA — 1951), the impairment for hearing everyday speech should be considered total. For every detail that the estimated hearing level for speech exceeds 25dB (15dB, ASA — 1951), 1.5% of monaural impairment is allowed up to a maximum of 100%. This maximum is reached at 91.7 dB (81.7 dB, ASA — 1951).

Step Four: Binaural Hearing Impairment Percentage.

The last step, found in Subsection (3), requires translation of monaural hearing loss percentages into a binaural hearing loss percentage. We compute this percentage as follows:

(0% X 5) + .909 - .1515

Therefore, the binaural hearing impairment if 15.15%

We now must calculate the compensation due Mr. Beach, pursuant to Section 39-71-808(1), MCA:

“(1) Subject to the limitations herein contained, there shall be payable:
“(a) for total occupational deafness of one ear, 40 weeks of compensation;
“(b) for total occupational deafness of both ears, 200 weeks of compensation; and
“(c) for partial occupational deafness, compensation shall bear such relation to that named herein as disabilities bear to the maximum disabilities herein provided.

Mr. Beach’s right ear sustained no compensable impairment and his left ear was no 100% impaired; therefore, the compensations listed in Subsections (a) and (b) for maximum disabilities do not apply. Subsection (c) applies as Mr. Beach has suffered partial occupational deafness. For monaural disability, he would receive 90.9% of 40 weeks of 36.36 weeks of compensation for his left ear and none for his right ear. For binaural disability, he would receive 15.15% of 200 weeks or 30.30 weeks of compensation. The Workers’ Compensation Court awarded Mr. Beach 36.36 weeks as the greater amount of compensation to which he was entitled. We hold that the Workers’ Compensation Court properly calculated monaural and binaural hearing impairments. We also hold that the court properly exercised its discretion in awarding Mr. Beach the larger sum to which he was entitle under the statute. Affirmed.

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