Bohrer v. Clark

No. 13880

I N THE S P E E COURT O THE S A E O PDNTANA
UR M F TT F

Plaintiff and Respondent,

SIEVE CLARK, d/b/a STEVE CLARK CONSTRUCTION;
S A F R PuIMBlX & SHEEP METAL IJK; LEVTIT
H EE
C O N ~ I a ~aorporation; THE MAJESTIC
,
CaMPANY; and M3RGAN DRIVE AWAY, INC., a
Corporation,

Defendants and Appellants.

Appeal f m : D i s t r i c t Court of the Second Judicial D i s t r i c t ,
Homrable Arnold Olsen, Judge presiding.

Counsel of Record:

For Appellants:

Schulz, Davis and Warren, Dillon, Mmtam
Davis argued, Dillon, Mntana
C a r l J4
!.

For Respondent :

Poore, McKenzie, rnt3-1, Robischon and Robinson, Butte, l4mtana
Urban L. Fbth argued, butte, Fbntana

SWtted: October 17, 1978

Decided :
OEC 1 5 197$
Filed : DEC 1 5 1978
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiffs sued several defendants for damages based
on the latters' negligence in causing a fire which destroyed
plaintiffs' home and its contents. The jury returned a verdict
for plaintiffs in the sum of $30,500 and judgment was entered
thereon. Plaintiffs moved that the judgment be amended to award
them the sum of $60,542.64 or in the alternative for a new trial
on the issue of damages. The District Court ordered the judgment
amended to award the homeowner $50,614.93 damages. One of the
defendants appeals for reinstatement of the jury's damage award
or for a new trial on all issues. Plaintiffs cross-appeal, seek-
ing a further increase in the damage award to $60,542.64.
In the spring of 1973 plaintiff Seymour Bohrer, a native
of New York who had never visited the west before, purchased a
tract of land in a recreational subdivision near Ennis, Montana,
for the purpose of constructing a vacation home thereon for his
family.
After the purchase of the land, plaintiff asked the seller
about building a house there. The seller informed him that he
had a dealership arrangement with Levitt Construction Systems, Inc.,
a California based manufacturer of modular homes, and that several
such homes were being constructed on other nearby homesites.
Plaintiff arranged for his wife to go to California and meet with
an interior decorator who the seller had indicated was handling
the furnishing and equipping of several of the other homes. Mrs.
Bohrer subsequently visited the factory where the homes were man-
ufactured, selected a model she wanted, and together with the in-
terior decorator began ordering the furniture, decorations and
other items for the home.
Among the items that plaintiffs wanted included in their
home was a fireplace, but Levitt Construction did not have any
models including that feature. Levitt Construction therefore, at
plaintiffs' request, ordered a free-standing metal fireplace
manufactured by the Majestic Company and placed it, still in its
shipping carton, inside the modular home to be transported to
Montana.
In early August, 1973, Morgan Drive Away Trucking Company
delivered the Levitt home to the homesite. Several local firms
in Ennis, Montana, were then hired to perform the work necessary
to convert the package into a functional vacation home. Defendant
Steve Clark, a construction contractor, was employed to lay a
foundation for the unit, join the two halves of the home together,
and otherwise perform the work necessary to "set up" the modular
home on the building site. Clark also added an extra room and deck

onto the house at plaintiff's request. Another local firm, Shaefer
Plumbing & Sheet Metal, Inc., was employed by plaintiff to make
repairs to plumbing which had been damaged in transit and to re-
place the furnace with a larger model.
In mid-August, 1973, Mr. Bohrer visited the homesite to
check on the progress of the construction. He noted that the fire-
place was unattached and spoke with defendant Clark about install-
ing it. Defendant informed him that a flue, a length of pipe to
go through the ceiling, was needed and that someone with sheet
metal knowledge and experience would be required to handle the
job. After further discussion, plaintiff returned home with the
understanding that between defendant Clark and Shaefer Plumbing
& Sheet Metal, Inc., the installation of the fireplace would be
completed.
The record is unclear whether plaintiff himself request-
ed Shaefer Plumbing to order the flue or whether defendant Clark
told Shaefer to order it for plaintiff. In any event, the flue
arrived at Shaefer Plumbing in early September. Shortly there-
after Shaefer Plumbing directed its employee, Jonathan Todd, to
accompany defendant Clark to the homesite and install the flue.
Between t h e two of them t h e f l u e was i n s t a l l e d and hooked up

t o the fireplace. The ~ a j e s t i c
Company p r o v i d e s w i t h each of

i t s f i r e p l a c e s a d e t a i l e d s e t of i n s t a l l a t i o n i n s t r u c t i o n s r e -

q u i r i n g t h a t a p r o t e c t i v e noncombustible f l o o r c o v e r i n g should
be p l a c e d under t h e f i r e p l a c e . Defendant C l a r k d i d n o t s e e any

i n s t r u c t i o n s with t h e f i r e p l a c e . The f i r e p l a c e was i n s t a l l e d

s t a n d i n g on t h e b a r e , u n p r o t e c t e d c a r p e t .

O December 2 4 , 1973 p l a i n t i f f s a r r i v e d t o spend C h r i s t -
n

mas i n t h e i r new v a c a t i o n home. Mr. and M r s . Bohrer planned t o

spend a week i n Montana and t h e n go t o C a l i f o r n i a t o spend New

Y e a r ' s and t h e f o l l o w i n g week. They t h e r e f o r e had brought w i t h

them a c o n s i d e r a b l e wardrobe f o r themselves and t h e i r two c h i l d -

ren.

During t h e e a r l y evening a f t e r p l a i n t i f f s ' a r r i v a l it

developed t h a t i n s u f f i c i e n t f u e l had been o r d e r e d f o r t h e propane

tanks t o t h e furnace. P l a i n t i f f c o n t a c t e d s e v e r a l n e i g h b o r s , who

i n t u r n contacted t h e delivery service. S e v e r a l of t h e n e i g h b o r s

came over t o p l a i n t i f f s ' home t o make s u r e t h a t t h e propane d e l -

i v e r y was made. A f t e r t h e propane a r r i v e d a t about 9:30 i n t h e

evening, t h e n e i g h b o r s s t a y e d t o v i s i t , make s u r e t h e f u r n a c e

was o p e r a t i n g , and have a few Christmas t o a s t s t o welcome p l a i n -

t i f f s t o Montana. P l a i n t i f f s do n o t d r i n k , b u t d i d p r o v i d e

Christmas c h e e r f o r t h e i r g u e s t s .

A t any r a t e , sometime p r i o r t o t h e a r r i v a l of t h e f u e l

t r u c k , a f i r e was s t a r t e d i n t h e f i r e p l a c e . I t was n o t a r o a r i n g

b l a z e , and s h o r t l y b e f o r e 11:30 p.m. when t h e g u e s t s were l e a v -

i n g , one of t h e n e i g h b o r s , Walter Johnson, reached i n t o t h e f i r e -

p l a c e and w i t h h i s b a r e hands s t a c k e d t h e remaining embers and

c i n d e r s toward t h e back. Plaintiffs retired shortly thereafter.

J u s t before she f e l l asleep, M r s . Bohrer t h o u g h t s h e smelled

smoke. When M r . Bohrer went t o i n v e s t i g a t e , he found t h e w a l l

behind t h e f i r e p l a c e a b l a z e . He attempted t o b e a t t h e flames o u t
with a blanket, but his efforts were fruitless. He evacuated
his wife and children and they drove to a neighbor's for assis-
tance. Before any firefighting efforts could be initiated, the
modular home and all of its contents were destroyed by the
fire.
A complaint was filed in the District Court of the Second
Judicial District, Silver Bow County, on January 27, 1975. The
complaint named as defendants Steve Clark, d/b/a Steve Clark
Construction; Levitt Construction Systems, Inc. (the modular home
manufacturer), and the Majestic Company (manufacturer of the
fireplace). An amended complaint adding Shaefer Plumbing & Sheet
Metal, Inc. as a party defendant was filed on February 27, 1975.
A second amended complaint later added Morgan Drive Away as
another defendant on the theory that the trucking company's neg-
ligence may have caused the loss of the installation instructions.
The second amended complaint alleged that the negligence of one
or all of the defendants had caused the destruction of plaintiffs'
home and its contents.
The action was removed to federal court, subsequently
remanded back to state court, and came on for trial by jury on
January 24, 1977. By that time, the pleadings had been amended
again to add a claim for personal injuries allegedly sustained
by the Bohrer family in the fire.
During the presentation of plaintiffs' case, negotia-
tions between plaintiffs and defendants Levitt Construction Inc.,
the Majestic Company, and Morgan Drive Away, Inc., resulted in an
agreement whereby those defendants would pay plaintiffs $8,000
as a settlement, and in return plaintiffs would not resist their
motions for dismissal and directed verdict after plaintiffs rested
their case. Levitt, Majestic, and Morgan continued to participate
in the trial, but pursuant to the agreement plaintiffs presented

no evidence of negligence on their part. When plaintiffs rested,
the unopposed motions for dismissal of ~evitt,~ajesticand
Morgan were granted. Thereafter, the Court advised the Jury
that three of the defendants were no longer in the case and that
they would be further instructed on that matter later in the
trial. Defense counsel for the two remaining defendants, appel-
lant Clark and Shaefer Plumbing, requested that the jury specif-
ically be advised that the dismissed parties had settled for
$8,000 and that the jury was to deduct that amount from any award
they might make to plaintiffs. The trial court judge chose to
withhold the details of the settlement from the jury and elected
to make the necessary deduction himself after the jury had re-
turned its verdict.
On January 28, 1977 the jury returned a special verdict
finding both Clark and Shaeffer Plumbing guilty of negligence
which caused the fire. The jury awarded no damages for personal
injuries, but awarded $30,500 for property damage.
On February 8 plaintiffs moved to alter and amend the
judgment or, in the alternative, for a new trial. The motion
alleged that the jury verdict was contrary to the undisputed
evidence at the trial. Plaintiffs contended that the evidence
required an award of $60,542.64 and moved the court either to
enter judgment in their favor for that sum or grant them a new
trial on the sole issue of damages.
On March 11 the District Court entered an order amending
the judgment to award plaintiff $50,614.93 damage. Both sides
subsequently appealed; defendant Steve Clark seeks reinstatement
of the original judgment or a new trial of the entire action, and
plaintiffs seek a judgment increasing the damage award to $60,542.64.
The issues on appeal can be summarized in this manner:
(1) Was the District Court correct in increasing the dam-
age award from $30,500 to $50,614.93?

(2) Can this Court on appeal increase a jury award of
damages?
(3) Was the giving and refusal of certain jury instruc-
tions reversible error?
(4) Sufficiency of the evidence to establish defendant's
liability.
The first two issues both deal with the question of
"additur". Issue number one raises the question from the per-
spective of the trial court's power to increase an award of
damages, and issue number two poses the same inquiry as to this
Court's power to increase the verdict and judgment.
Rule 59(g), M.R.Civ.P. provides for motions to alter or
amend a judgment and states that such motions may be combined
with a motion for new trial. In this case, plaintiffs made such
a motion, requesting that the jury verdict be increased to $60,542.64,
or in the alternative that a new trial be granted on the sole issue
of damages. A similar motion was the subject of an appeal to

this Court in State Highway Commission v. Schmidt (1964), 143
Mont. 505, 391 P.2d 692. In Schmidt, a motion for new trial had
been made and the District Court, instead of granting a new trial
outright, deemed the jury verdict inadequate. The court made a
conditional order granting a new trial unless the losing party
consented to the court's addition of some $7,800 to the verdict,
in which event the motion for a new trial was denied. In Schmidt
we held on appeal that Rule 59 does not give the trial court
authority to add to the jury's verdict, conditionally or otherwise,
if in the court's opinion it was inadequate. The Schmidt opinion
unequivocally prohibits the practice of additur by the District
Courts of Montana.
In a recent decision, however, this Court contradicted
the holding in Schmidt by dictum. Ferguson v. Town Pump, Inc.
(19781, Mont . , 580 P.2d 915, 35 St.Rep. 824, involved
a motion identical to the one plaintiffs made here; that is,
that the court either substitute a higher damage award or grant
a new trial on the issue of damages. The motion was not one of
the contested issues on appeal and need not have been addressed
at all. Nonetheless, we remarked in passing that the rule follow-
ed in some jurisdictions, that it is within the constitutional
power of the trial court to condition a denial of a new trial on
the defendant's consent to an increase in the jury verdict, should
be adopted in Montana. Town Pump, 580 P.2d at 919-920, 35 St.Rep.
at 829. Re-examination of the issue under the closer scrutiny
required by the context in which it arises here convinces us
that our dictum in Town Pump was incorrect.
We recognize that there is a split of authority on this
question. Having re-evaluated it in all its implications, how-
ever, we conclude that the reasoning articulated in Schmidt,
states the better rule. Therefore, we expressly overrule that
portion of Ferguson v. Town Pump, Inc. (1978), Mont . f

580 P.2d 915, 35 St.Rep. 824, which adopted the rule that the
District Court can add to a jury verdict. The rule in Montana
in regard to additur is that announced in State Highway Commis-
sion v. Schmidt (1964), 143 Mont. 505, 391 P.2d 692. The trial
court here erred when it increased the award to plaintiffs.
We should point out that Schmidt was the controlling law
at the time the trial court made the additur here, as Town Pump
had not yet been decided. The primary authority cited by the
trial court in its memorandum accompanying the order increasing
the verdict was Zook Brothers Construction Co. v. State of Montana
(1976), 171 Mont. 64, 556 P.2d 911, 33 St.Rep. 809. "If the

Court had any doubt as to its authority to alter and amend the
judgment", the trial court here said in its memorandum, "such
doubt is totally dissipated by the recent decision (in Zook
Brothers)." In Zook Brothers, under the specific unusual circum-
stances there present, this Court itself raised an award of damages
made by a trial court. The fact that this Court on appeal added
to a lower court's award under certain limited special conditions
does not, however, automatically vest the power of additur in
the District Courts. The trial court's reliance on Zook Brothers
as authority for additur by a District Court was misplaced.
Reference to Zook Brothers brings us to the second issue
on appeal; that is, this Court's power to increase an award of
damages. Plaintiffs have cross-appealed for an order of this
Court increasing the award from the $30,500 jury verdict to
$60,542.64, which plaintiffs contend they are entitled to by vir-
tue of undisputed evidence. Plaintiffs rely on Zook Brothers
as authority for such an award by this Court. Zook Brothers,
however, as we indicated above, involved a special set of limited
circumstances. It was a case appealed from a trial to the court
rather than to a jury, and a case in which we found the inadequacy
of the award to be merely the result of an error in mathematical
calculation.
Plaintiffs here argue that their damages are calculable
with even greater mathematical certainty than in Zook Brothers.
We have not undertaken to evaluate that contention because we
hold that Zook Brothers should be strictly construed and that it
is not controlling here. Zook Brothers, tried to the court, is not
authority for us to add to the verdict here in a case tried to

a jury, regardless of the presence or absence of the aspect of
mathematical certitude.
We are aware that, as plaintiffs stated in their brief,
the cases cited in Zook Brothers as authority for scaling upward
the lower court's award are all jury cases. Nesbitt v. City of
Butte (1945), 118 Mont. 84, 163 P.2d 251; Miller v. Emerson (1947),
120 Mont. 380, 186 P.2d 220; Klemens & Son v. Reber Plumbing and
Heating Co. (1961), 139 Mont. 115, 360 P.2d 1005. We also note,
however, that they were all cases where a jury verdict was reduced
as excessive; two of them because the amount of damages awarded
was not supported by the evidence, and the third because the
plaintiffs conceded that the amount was excessive and offered
to settle at a lower figure. In such situations, the concern
voiced and discussed at length in State Highway Commission v.
Schmidt, supra, regarding interference with the right to trial
by jury is, as pointed out in Schmidt, not a controlling factor.
It is, however, again as pointed out in Schmidt, 143 Mont. at 511,
391 P.2d at 695, a primary consideration where an increase of
a jury's award is involved.
We decline, therefore, to expand our holding in Zook Broth-

- to encompass the relief requested by plaintiffs.
ers Zook Brothers
is not general authority for appellate additur. Rather, the rule
in Zook Brothers may be invoked only for an adjustment of an award
of damages made by a District Court sitting without a jury, and
only to correct an error ascertainable by mathematical calculation.
Having determined that the District Court erred when
it added to the jury verdict, and that this is not a proper case
for increase of the award by this Court, we are still left with
the task of reaching a resolution of this controversy. Defendant
has asked us either to order reinstatement of the original judg-
ment on the jury verdict, or remand for a new trial of the entire
action (on other specified grounds of error which we will address
further below). Plaintiffs, on the other hand, sought in the
District Court either additur to $60,542.64 or a new trial on the
sole issue of damages, but on appeal have requested only that
this Court amend the judgment upward to the sum they contend the
evidence proves.
In actions involving injury to property, the proper amount
of recovery is usually ascertainable by reference to fixed stan-
dards, and where the verdict in such an action appears to be in-
adequate, a new trial will be ordered. 58 Am Jur 2d New Trial 5154.
G e n e r a l l y , t h e a l l o w a n c e o r r e f u s a l o f a motion f o r a new t r i a l

on t h e grounds of i n a d e q u a t e damages i s a m a t t e r f o r t h e d i s -

c r e t i o n of t h e D i s t r i c t Court. 66 C.J.S. New T r i a l 5201(6).

Rule 5 9 ( a ) , M.R.Civ.P., p r o v i d e s t h a t " a new t r i a l may

be g r a n t e d on a l l o r p a r t o f t h e i s s u e s " i n a c a s e . S e i b e l v.

Byers ( 1 9 5 9 ) , 136 Mont. 39, 344 P.2d 1 2 9 , where we h e l d t h a t

t h e t r i a l c o u r t c a n n o t g r a n t a p a r t i a l new t r i a l l i m i t e d t o t h e

i s s u e of damages a l o n e , was d e c i d e d p r i o r t o t h e a d o p t i o n of

Rule 59 and i s no l o n g e r c o n t r o l l i n g . The i n s t a n c e s i n which a

new t r i a l on t h e i s s u e of damages a l o n e may be p r o p e r a r e com-

p a r a t i v e l y i n f r e q u e n t ; n o n e t h e l e s s , t h e power of b o t h t r i a l and

a p p e l l a t e c o u r t s t o o r d e r such a l i m i t e d t r i a l i s w e l l recognized.

"Where t h e c o u r t i s convinced upon a r e v i e w o f t h e whole case

t h a t t h e j u r y have s e t t l e d t h e i s s u e a s t o r e s p o n s i b i l i t y f a i r l y

and upon s u f f i c i e n t evidence--so t h a t d i s a s s o c i a t e d from o t h e r

q u e s t i o n s it o u g h t t o s t a n d a s t h e f i n a l a d j u d i c a t i o n o f t h e r i g h t s

of t h e p a r t i e s - - a n d t h a t t h e r e h a s been such e r r o r i n t h e d e t e r -

m i n a t i o n of damages as t o r e q u i r e t h e s e t t i n g a s i d e o f t h e v e r d i c t ,

a new t r i a l a s t o damages a l o n e may p r o p e r l y be o r d e r e d . . ."
58 Am J u r 2d N e w T r i a l 527.

I t i s a p p a r e n t from t h e t r i a l c o u r t ' s a c t i o n on p l a i n t i f f s '

motion t o amend t h a t t h e c o u r t was convinced t h e j u r y had r e a c h e d

a p r o p e r v e r d i c t on t h e i s s u e o f l i a b i l i t y . Clearly, also, the

t r i a l c o u r t concluded t h a t t h e j u r y ' s award was i n a d e q u a t e . The

c o u r t s t a t e d i n i t s o r d e r amending and a l t e r i n g judgment t h a t t h e

e v i d e n c e would have s u p p o r t e d summary judgment f o r p l a i n t i f f s

f o r a t l e a s t $41,364.62, y e t t h e j u r y r e t u r n e d a v e r d i c t of o n l y

$30,500. Under t h e s e c i r c u m s t a n c e s , an o r d e r g r a n t i n g a new t r i a l

l i m i t e d t o t h e i s s u e of damages would have been w i t h i n t h e c o u r t ' s

discretion. Such an o r d e r , r a t h e r t h a n amendment upward o f t h e

award, would have been a p r o p e r e x e r c i s e of t h e c o u r t ' s d i s c r e t i o n

here. S i n c e t h e D i s t r i c t C o u r t d i d n o t r u l e on t h e motion f o r new
trial, however, and since plaintiffs have not requested us on
appeal to order a new trial on the sole issue of damages, we
will not do so. Therefore, we order instead that the ~istrict
Court's order amending and altering judgment is hereby vacated
and the cause is remanded for a new trial, the scope of which
shall be left to the District Court in the sound exercise of its
discretionary powers.
Defendant urges that numerous errors were comrnited by
the District Court in its choice of instructions to the jury.
To avoid the possibility of a future appeal should the same
instructions be used at the retrial, we will address those argu-
ments in this opinion.
Six alleged errors are raised:
(a) Defendant objects to the court's refusal of his pro-
posed instruction on contributory negligence. Defendant argues
that plaintiffs may have been found contributorily negligent in
purchasing a fireplace for a modular home without inquiring as
to its safety or suitability, or for not obtaining or reading
instructions on the installation before ordering it done.
It is true that as a general rule, issues of negligence
and contributory negligence should be decided by the jury. Parrish
v. Witt (1976), Mont . , 555 P.2d 741, 33 St.Rep. 999 (cit-

ing earlier cases). However, there were facts present here which
made refusal of the instruction proper. Plaintiffs had nothing
to do with the actual installation of the fireplace. Plaintiffs
had lived most of their lives in New York City apartments, were
completely unfamiliar with the workings of fireplaces, and had
retained the services of defendant in reliance on the expertise
he held himself to possess. "Before it is proper to submit the
question of contributory negligence to the jury, there must be
evidence not only indicating negligence on the part of the plain-
tiff but also that such negligence contributed as a proximate
cause to the accident and resulting injuries." Stephens v.
Brown (1972), 160 Mont. 453, 503 P.2d 667; see also, Grabs
v. Missoula Cartage (1976), 169 Mont. 216, 545 P.2d 1079. Under
Montana law, "[Mlere knowledge of the existence of an offending
instrumentality . . . is not sufficient in itself to constitute
contributory negligence; but in addition the person so using it
must have appreciated, or must have had the opportunity to apprec-
iate, danger from its use. . . ." Zirnmer v. ~aliforniaCo, (D,
Mont. 1959), 174 F.Supp. 757, 764. We find no error in refusing
this instruction under the evidence at the trial.
(b) Defendant objects to the court's refusal of his pro-
posed instruction on damages. Defendant offered an instruction in
language taken from Spackman v. Ralph M. Parsons Co. (1966), 147
Mont. 500, 414 P.2d 918, which provided alternative measures of
damages for property totally destroyed and property on which re-
pair is possible. The court instead gave an instruction in the
language of section 17-401, R.C.M. 1947, which states the measure
of damages for breach of an obligation not arising from contract.
We defer to the discretion of the District Court in its choice of
instructions; we refuse to predicate error on the use of a statu-
torily approved formula.
(c) Defendant complains of the District Court's refusal
of his offered instructions on imputed negligence, alleging that
certain of plaintiffs' agents had acted negligently and that
their negligence amounts through agency principles to negligence
of the plaintiffs themselves. The same rules as stated in our
discussion of the contributory negligence issue apply to any
alleged negligence on the part of plaintiffs' agents which might
be imputed to plaintiffs. There was no evidence establishing that
the acts of any of plaintiffs' agents other than defendant Clark
and Shaefer Plumbing were a proximate cause of the fire. Both
defendant Clark and Shaefer Plumbing admitted in their testimony
at trial that it was their duty to insure that plaintiffs' home
would not be damaged by the fireplace they installed. No such
duty was established as to any of the other parties involved.
Defendant Clark argues that the negligence of Shaefer
Plumbing should be imputed to plaintiffs. If so, then couldn't
Shaefer Plumbing argue that Clark's negligence is likewise imputed
to plaintiffs, leaving plaintiffs no remedy against either? This
is a case of joint and several liability. We find no error in
the refusal of the imputed negligence instructions.
(d) Defendant objects to the court's instruction that the
cause of the fire was the defectively installed fireplace. De-
fendant argues that this was a question of fact for the jury to
determine. There is, however, no evidence in the record that
the fire originated from any other source. An instruction is
not objectionable because it assumes an uncontroverted fact, or
one which is admitted or conclusively shown by the evidence. Hogan
v. Shuart (1892), 11 Mont. 498, 28 P. 969; Frederick v. Hale (1910),
42 Mont. 153, 112 P. 70; 75 Am Jur 2d Trial 5679.
Defendant argues that the instruction that the fireplace
was the cause of the fire was inconsistent and contradictory in
that the court also instructed the jurors that they were not
bound by the opinion of two expert witnesses who testified on
that issue. We agree that the giving of conflicting instructions
upon a material issue is reversible error. Skelton v. Great
Northern Ry. Co. (1940), 110 Mont. 257, 100 P.2d 929. However,
the instruction on the weight to be accorded expert testimony does
not conflict with the uncontroverted fact that the fireplace caused
the fire that destroyed plaintiffs' home.
(e) Defendant argues that he was only following a floor
plan supplied by plaintiffs when he installed the fireplace. He

objects to the court's refusal of his instruction that damages
resulting from defective or insufficient plans furnished by
an owner cannot be blamed on a construction contractor.
Leigland v. McGaffick (1959), 135 Mont. 188, 338 ~ . 2 d1037. We
conclude that the District Court properly refused the instruc-
tion in that the floor plan furnished by plaintiffs, showing

only where the fireplace was to be located in relation to other
objects in the room, cannot be equated with the "plans and/or
specifications" contemplated by the rule in ~ c ~ a f f i c k .
(f) Defendant alleges error in the District Court's
failure to instruct the jury more thoroughly in regard to the
dismissal of the defendants who had settled with plaintiffs.
There is an even division of authority as to whether the terms
of a settlement should be revealed to the jury and whether the
jury or the court itself should make the necessary deduction from
any award of damages. Annot: 94 ALR2d 352. In our opinion, this
is a matter that should be left to the discretion of the trial
court. We agree with those jurisdictions holding that the trial
court's decision on the matter should not be disturbed unless it
clearly appears that a fair trial has been jeopardized. Cf. Degen
v. Bayman (1972), 200 N.W.2d 134. We do not find that to be the
case here.
We now turn to the final issue for review; the sufficiency
of the evidence to support a finding of liability on the part of
defendant Clark. Defendant contends that there was no contract be-
tween him and plaintiffs for installation of the fireplace and no
duty upon him in that regard. The only charges made to plaintiffs
relating to the fireplace installation, he argues, were made by
Shaefer Plumbing. Therefore, he concludes, the jury's finding
against him was not supported by the evidence and the District
Court should have granted his motion to dismiss at the close of
plaintiffs ' case-in -chief.
 Evidence in support of a verdict is not insufficient if it
is substantial. State Highway Commission v. Arms (1974), 163
Mont. 487, 518 P.2d 35. Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion". Webb v. Celebrezze (D.Mont. 1964), 226 F.Supp.
394, 395. Defendant Clark was the individual generally in charge
of "setting up" plaintiffs' mobile home. Testimony established
that he participated in the negligent installation of the fire-
place, regardless of whether or not the performance of such work
was itemized in a bill for his services. "Negligence is ordin-
arily a jury question and it is only where the facts admit of
but one conclusion that it becomes a matter of law." D'Hoodge
v. McCann (1968), 151 Mont. 353, 361, 443 P.2d 747. There was no
error here in denying defendant's motion for directed verdict.
The order of the District Court amending the judgment
to award plaintiffs the sum of $50,614.93 is vacated together
with the original judgment. The cause is remanded for a new trial
consistent with this opinion.

Chief Justice