No. 1.2272
IN THE SUPREME COURT OF THE STATE OF MONTANA
1972
\JILTJLAM L . BROTHERS ,
P 1 a i n t i . f f and R e s p o n d e n t ,
-vs -
SURPLUS 'JTACTOR PARTS COKPORATION,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
H o n o r a b l e J o h n B. McClernan, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
P o o r e , McKenzie & R o t h , B u t t e , Montana.
A l l e n R. McKenzie a r g u e d , B u t t e , Montana,
For ~ e s p o n d e n t :
C o r e t t e , Smith & Dean, B u t t e , Montana.
G e r a l d R. A l l e n a r g u e d , B u t t e , Montana.
Submitted: October 1 8 , 1972
Decided: FEB 2 7 1973
Filed : FEB2 7 1973
*
P
& erk
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a judgment entered for plaintiff
William L. Brothers in the amount of $3,500, on a jury verdict
in the district court of the second judicial district, county
of Silver Bow. From that judgment and from the court's denial
of a new trial, defendant Surplus Tractor Parts Corporation
appeals.
The action was brought to recover damages for claimed
defective replacement tractor parts. Initially, the action was
brought on a tort theory of negligence which was enlarged during
the course of trial to include an additional contract theory of
breach of warranty.
Defendant Surplus Tractor Parts Corporation hereinafter
called Surplus, has assigned four grounds of error:
1. The trial court erred in allowing a variance between
the claim pleaded, which was based on negligence, and the claim
relied on at trial, which was based on breach of warranty.
2. The trial court erred in submitting jury instructions
which were based on both theories and were conflicting, incon-
sistent and confusing.
3. The trial court erred in refusing to grant a new trial.
4. The evidence was not sufficient to justify the verdict
on either contract or tort liability, or the amount of damages.
In September 1968, plaintiff William L. Brothers, herein-
after called Brothers, purchased from Surplus fourteen new rollers
and other related tractor parts to be used as replacement parts
on his TD 24 Tractor, at a total cost of $3,000, including freight.
Brothers claimed to have installed and lubricated the rollers in
accordance with competent mechanical practice. Surplus claimed
that both the installation and lubrication were faulty.
Brothers claimed that after about 200 hours of operation,
six of the rollers began leaking oil. He notified Surplus and
received six new seals. Shortly after Brothers replaced the
seals, the rollers again began to leak and he sent them back to
Surplus for inspection. Upon the subsequent return of the
rollers from Surplus, Brothers claimed they began leaking oil
before they could be installed or used. Brothers then bought
six rollers from another firm and installed them on his tractor.
At trial, Brothers testified that none of the rollers
bought from the other firm were leaking oil after 900-1000 hours
of use, but that seven of the eight remaining rollers purchased
from Surplus were leaking oil. Brothers contended this kind of
roller should last from 3000 to 4000 hours. He claimed total
damages of over $9,000 due to the defective rollers and the con-
sequential loss of employment while the tractor was inoperable.
The trial court issued seventeen instructions to the jury,
including stock instructions. We will briefly examine the in-
structions relevant to assignment of error No. 2, in general terms.
Instruction No. 4 defines negligence and raised contrib-
utory negligence.
Instruction No. 5 defines contributory negligence.
Instruction No. 6 defines proximate cause.
Instruction No. 8 is a short statement about warranty.
Instruction No. 9 is a short statement on express warranty.
Instruction No. 10 reads: "You are instructed that in this
case the plaintiff seeks to establish liability by showing a
breach of warranty. A breach of warranty may be established
without proof of negligence on the part of the defendant."
Instruction No. 11 instructs that there is an implied
warranty of merchantability in this case.
Instruction No. 12 instructs that plaintiff and defendant
are bound by express warranty in defendant's catalogue.
Instruction No. 13 instructs that if improper use of the
rollers is found, plaintiff cannot recover under breach of war-
ranty.
Instruction No. 14 on damages reads:
"You are instructed that the measure of damages
arising from the breach of an obligation arising
from contract is the amount which will compensate
the party aggrieved for all the detriment prox-
imately caused thereby, or which, in the ordinary
course of things, would be likely to result there-
from. "
Instruction No. 15 reads:
"The law does not permit you to guess or speculate
as to the cause of the damage to the tractor parts
in question. If the evidence is equally balanced
on the issue of negligence or proximate cause, so
that it does not preponderate in favor of the
plaintiff, then he has failed to fulfill his bur-
den of proof.
"To put the matter in another way, if after con-
sidering all the evidence, you should find that
it is just as probable that either the defendant
was not negligent, or if it was, that its negli-
gence was not a proximate cause of the accident,
as it is that some negligence on its part was such
cause, then the case against the defendant has
not been established and your verdict must be for
the defendant."
Instruction No. 16 reads:
"The reasonable cost of repairs necessary to
restore the property to the condition it was in
immediately before the damage, and the reasonable
value of loss of use pending repairs, are the
determining factors in arriving at the amount of
damages.
"It is only the reasonable and necessary cost of
making such repairs, within a reasonable period
of time after the damage occurred, that can be
allowed; and the repairs allowable are only those
which are actually necessary to put the property
back into as good condition as it was before the
damage occurred. The owner is not entitled to
have the property put back into better condition
than before the damage. Nor is the owner entitled
to be compensated for loss of use beyond the time
reasonably required to complete the necessary
repairs. "
In light of the evidence presented at trial and consider-
ing the effect the instructions would have on the understanding
of an average juryman as to what determinations of fact he was
required to make in arriving at a verdict, we find merit in the
second assignment of error. Montana law pertaining to error
in jury instructions as it has been construed by this Court is
that the test of a jury instruction is not what the ingenuity of
counsel for appellant can make of it, but rather the ordinary
understanding of the instructions taken as a whole. Long v.
Byers, 142 Mont. 46, 381 P.2d 299. That is the general rule.
Here, we find the jury instructions, taken as a whole, to be
inconsistent and contradictory to each other to a degree that
would confuse the average juryman and require reversal.
Respondent Brothers contends in his brief: "If error
was committed by the presentation of negligence instructions,
Surplus may not avail itself of the invited error". In view of
the fact that it was Brothers who originally introduced the neg-
ligence theory in his complaint and then changed to a contract
theory at trial, he cannot here successfully contend that Surplus
invited error in defending on both theories.
Appellant's first and second assignments of error are
related in that the basis of objection to the jury instructions
arose as a result of variance at trial between the theories of
tort and contract. The second assignment of error pertaining to
the jury instructions is alone grounds for granting a new trial,
consequently the first assignment of error pertaining to the
court's allowing amendment of the pleading to conform to the
proof becomes less important to the outcome. However, since it
is a related issue, we will comment briefly on it.
Montana rules of civil procedure, based on federal rules,
are essentially notice pleading statutes rather than the more
formal code or fact pleading statutes in effect in many juris-
dictions. Under Rule 8(a), M.R.Civ,P., a pleading requires only:
1. A short and plain statement of the claim showing
that the pleader is entitled to relief.
2. Demand for judgment for the relief to which he deems
himself entitled. Under this rule, relief in the alternative
or several different types of relief may be demanded.
Under Rule 15(b), M.R.Civ.P., pleadings may be amended to
conform to the evidence when issues not raised by the pleadings
are tried by the express or implied consent of the parties.
The Montana Rules of Civil Procedure with the liberal
construction they have been given by this Court, have often saved
needless litigation over purely formal procedural matters by
allowing the courts to directly consider the merits of the case.
Reilly v. Maw, 146 Mont. 145, 405 P.2d 440.
However, it was neither intended nor advisable that
counsel in this state neglect to thoroughly research their cases
before drafting pleadings, in reliance on the liberality of the
courts in granting amendments.
In Gallatin Trust and Savings Bank v. Darrah, 152 Mont.
256, 261, 448 P.2d 734, the Court stated:
"It is generally accepted that the appellant
cannot recover beyond the case stated by him
in his complaint.
" * * * this Court believes that fair notice
to the other party remains essential, and plead-
inqs will not be deemed amended to conform to
the evidence because of 'implied consent' where
the circumstances were such that the other party
was not put on notice that a new issue was being
raised. 1A Barron & Holtzoff S 449; Otness v.
United States, D.C. Alaska, 1959, 23 F.R.D. 279.''
(Emphasis added).
Rule 15(b), M.R.Civ.P., in Montana and in federal juris-
dictions generally, has been applied liberally in favor of allow-
ing amendment of pleadings to conform to the evidence. In Union
Interchange, Inc. v. Parker, 138 Mont. 348, 357 P.2d 339, we
stated that it was the rule to allow such amendments and the
exception to deny them. In Nester v. Western Union Telegraph
Co., (D.C. Ca1.1938) 25 F.Supp. 478, amendment was allowed to
change the theory of liability upon which the plaintiff sought
recovery from tort to contract. See 6 Wright & Miller, Federal
Practice and Procedure: 5 Civil 1493.
Rule 15(b), M.R.Civ.P., should be applied liberally to
avoid the old requirements of formalism and to allow litigants
to proceed efficiently on the merits of the case, However,
leave to amend pleadings under Rule 15(b), cannot be granted
arbitrarily or perfunctorily because the result would create
a question of due process in cases where the defendant may not
have an adequate opportunity to prepare his case on the new
issues raised by the amended pleadings, therefore the facts
attendant to each case become controlling.
As a practical matter, the instant case amply demonstrates
the perils-of changing the theory of liability during the course
of trial. Jury instructions by both litigants relating to both
theories may be submitted and given to the jury, which when read
as a whole become contradictory and confusing.
In view of our holding on assignment of error No. 2, we do
not deem it necessary to comment further on assignment of error
No. 1, as it will not arise on retrial and in view of a retrial
on the merits we will not comment on assignments of error Nos. 3
and 4.
The judgment of the district court is reversed and the
cause remanded for a new trial.
Associate Justice
r7
- ye concur :
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Chief J u s t i c e
Associate Just$es
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