No. 14230
IN THE SUPRE3E C W OF THE STATE
O OF MXII'ANA
1979
ALBERT J. HELMKE, JR.,
Plaintiff and Appellant,
-VS-
G I I J 3 E m B. GOFF,
Defendant and Respondent.
Appeal £ram: District Court of the Nineteenth Judicial District,
Honorable Robert M. Holter, Judge presiding.
Counsel of Record:
For Appellant:
Terry N. Trieiler argued, Whitefish, Mntana
For Respondent:
Murphy, Fbbinson, Heckathorn and Phillips, Kalispell, Mntana
I James Heckathorn axgued, Kalispell, lvbntana
.
Submitted: March 23, 1979
Decided: JUN 1 8 1979
Filed: J N
U 18 1979
Mr. Justice John C. Sheehy delivered the opinion of the
Court.
This is an appeal from a judgment based on a jury
verdict for the defendant (Goff) in the District Court of
the Nineteenth Judicial District, Lincoln County.
Plaintiff (Helmke) filed his action against Goff alleging
that on August 25, 1975 on Montana secondary highway no.
202, approximately 4.4 miles from Troy, Montana, Goff negligently
drove his 1966 Volkswagen sedan in such a manner that it
went out of control, off the highway, and rolled over several
times. Helmke, a passenger in the vehicle at the time of
the accident, was injured.
In his answer, Goff admitted the happening of the
accident, but denied that any negligent act on his part caused
the plaintiff's injuries. Beyond the general denial of
negligence, no affirmative defenses were interposed by Goff.
At the close of evidence in the trial, both parties moved
for directed verdicts. The motions were denied and the cause
submitted to the jury. A general verdict was found for Goff.
Helmke moved for a judgment notwithstanding the verdict, or
in the alternative, for a new trial. His motions were denied
and Helmke duly filed his appeal to this Court.
The suit arises out of a single vehicle accident which
occurred on a clear sunny August afternoon. The investigating
highway patrolman found that the automobile crossed the center
line of the two lane highway onto the unpaved left shoulder,
skidded 49 feet back into the right lane, then left the roadway
on the right-hand side, overturned and rolled some 86 feet
before coming to rest in a ditch on the right-hand side of
the road. There were no defects or obstructions in the roadway
and the pavement was dry. The driver testified that his
visibility was unhampered and that his car had no mechanical
-2-
defects. He testified he was not tired, had no physical
ailments or infirmities to impede his driving, and he
was not intoxicated. The evidence has shown, however, that
he and plaintiff had consumed a six-pack of beer in the
morning and later in the day, just before the accident, had
been passing a wine bottle back and forth and that the wine
was probably half consumed at the.time of the accident. He
agreed that Helmke had not contributed to the happening of
the accident. Neither Helmke nor Goff knew how the accident
happened and testified to that effect at the trial.
There was some contention during the trial that there
may have been a sudden loss of air in one of the tires of
the vehicle, but the patrolman testified that such an incident
would have been the result of the accident itself.
In its charge to the jury, the trial court instructed
both on ordinary negligence and -- loquitur.
res ipsa With
respect to ordinary negligence, it told the jury that a
violation of law had to be the proximate cause of the
plaintiff's injuries; that a violation of an applicable
statute was negligence as a matter of law; and instructed
on the "basic rule of vehicle operation," section 32-2144(a),
R.C.M. 1947, now section 61-8-303(1) MCA, and upon the
necessity of driving on the right half of the road, section
32-2151, R.C.M. 1947, now section 61-8-321 MCA.
The District Court did not take the MJIG instruction
on - - loquitur, but instructed as follows:
res ipsa
"If you find, (1) that injury to the Plaintiff
was proximately caused by the fact that the
automobile which Defendant was driving left
the road and rolled over; (2) that at the time
of said accident the automobile in which the
Plaintiff was injured was under the Defendant's
exclusive control or management, so that the
Defendant had superior means for determining
the cause of the accident; and (3) that in the
normal course of events the accident and
ensuing injury would not have occurred without
the negligence of the person having control and
management of the automobile, then you may
find that the accident and ensuing injury
were caused by the negligence of the Defendant.
"However, you shall not find that a proximate
cause of the occurrence was some negligent
conduct on the part of the defendant unless
you believe, after weighing all the evidence
in the case and drawing such inferences therefrom
as you believe are warranted, that it is more
probable than not that the occurrence was caused
by some negligent conduct on the part of the
Defendant. "
The trial court also gave the "mere happening" instruction
as follows:
"The mere fact that an accident happened,
considered alone, does not give rise to
an inference that it was caused by negligence
or that any party to this action was negligent."
We restate the issues on appeal as follows:
1. Assuming a - - case, is the court or jury
res ipsa
compelled to find for the plaintiff where the defendant
does not attempt to explain the accident or to show his
lack of negligence?
2. What is the effect of the "mere happening" instruction
in a -- case?
res ipsa
3. Is the verdict of the defendant here supported by
the evidence?
Under the first issue, Helmke contends that the trial
court should have granted his motion for a directed verdict,
or for judgment notwithstanding the verdict. Goff, on the
other hand, though admitting that this is a - - case,
res ipsa
nevertheless states that the circumstances shown in the
evidence, that it happened quite fast, that there were two
flat tires on the automobile after the accident, that Helmke
could point to no negligent act in the driving of the
automobile, and a few other circumstances, meant that the
jury was properly allowed to decide the issue.
The procedural effect of the -- case, that
res ipsa
is whether the burden of proof upon the establishment of
such a case shifts to the defendant, has been discussed in
some Montana cases. In Whitney v. Northwest Greyhound
Lines (1952), 125 Mont. 528, 242 P.2d 257, 258, this Court
examined the problem but declined to decide it:
"Error is predicated upon instructions given
over plaintiff's objection and in refusing
some instructions offered by plaintiff.
The principal legal question presented is
whether the doctrine of res ipsa loquitur
applies under facts and d i r c ~ a n c e s
presented
-
by the record, and if so, was the jury properly
instructed on the subject. Interwoven with
this general subject is the usual difference of
opinion between counsel as to whether under that
doctrine there is a shifting of the burden of
proof. On that point the courts are in disagreement.
Even this court has gone both ways on the question."
Decisions vary from state to state as to whether the
burden of proof shifts to the defendant in a -- case.
res ipsa
Authorities attempt to explain the disparity in these
decisions by determining whether the jurisdiction follows
the "permissible inference" theory or the "rebuttable pre-
Law of Torts S19.11
sumption" theory. See 2 Harper and James,,/pp. 1100-1102.
It is safe to say that the difference between an inference
and a presumption escapes all but the most nimble legal minds.
Statutory definitions do not help much. Section 93-1301-2,
R.C.M. 1947, now section 26-1-501 MCA defines an "inference"
as a "deduction ... from the facts proved, without an
express direction of the law to that effect." On the other
hand, section 93-1301-3, R.C.M. 1947 (now repealed), defined
a presumption as a "deduction which the law expressly directs
to be made from particular facts". Both inferences and pre-
sumptions are deductions made from facts; both are forms of
indirect evidence. Section 26-1-102(4) (b) MCA, formerly
section 93-1301-1, R.C.M. 1947. The difference seems to be
that a presumption is founded upon an express direction of
''the law".
It is not necessary for us, however, to attempt to
classify this jurisdiction as one following the "permissible
inferenceiitheory, or the "rebuttable presumption" theory.
It is our opinion that a -- case does not put the
res ipsa
defendant in a position of having to prove an affirmative
defense to escape liability. The language in Sweeney v.
Erving (1913), 228 U.S. 233, 240, 33 S.Ct. 416, 418, expresses
our position:
". . . - - loquitur means that the facts
res ipsa
of the occurrence warrant the inference of
negligence, not that they compel such an
inference; that they furnish such circumstantial
evidence of negligence where direct evidence
of it may be lacking, but it is evidence to be
weighed, not necessarily to be accepted as
sufficient; that they call for explanation or
rebuttal, not necessarily that they require it;
that they make a case to be decided by the jury,
not that they forestall the verdict. - -
Res ipsa
lo uitur, where it applies, does not convert the
ae en ant's general issue into an affirmative
+
%-
defense. When all the evidence is in, the question
for the jury is, whether the preponderance is with
the plaintiff. "
Obviously, the question of whether the court, at the
close of all the evidence in the -- case, should grant
res ipsa
a motion for directed verdict, or later a judgment notwith-
standing the verdict, will depend upon the facts proved in
each individual case. We can conceive of situations where
the inference of negligence in a -- case would be so
res ipsa
strong that persons of reasonable minds could not reach
differing conclusions as to the negligence of the defendant.
When that occurs, the course to be followed by the District
Court should be no different than in any other case when
faced by a motion for a directed verdict.
In this case, we do not find that the District Court
abused its discretion in refusing to grant a directed verdict
or a judgment n. o. v.
The inferences of fact raised by plaintiff's case
were to be determined by a jury, which is the trier of all
fact issues where a jury trial is demanded. Rule 39(a),
The second issue, the giving of the "mere happening"
instruction in a -- case, is of more grave consequence,
res ipsa
and in our view requires a reversal of this case.
The statement that the fact of an accident or collision
alone is no evidence of negligence has found its way into a
number of opinions from this Court. See for example, Baatz
v. Noble (1937), 105 Mont. 59, 69 P.2d 579; Cowden et al. v.
Crippen (1936), 101 Mont. 187, 53 P.2d 98; Autio v. Miller
(1932), 92 Mont. 150, 11 P.2d 1039. However, we pointed out
in Hunsaker v. Bozeman Deaconess ~oundation (1978),
Mont . I 588 P.2d 493, 35 St.Rep. 1647, that while
occasionally, a statement in an opinion may also be a good
jury instruction, opinions are not designed to be jury
instructions.
Also in Hunsaker, with respect to a "mere happening"
instruction in a -- case, this Court said:
res ipsa
"In Graham v. Rolandson (1967), 150 Mont. 270,
435 P.2d 263, an ordinary negligence action,
we condemned an 'unavoidable accident' instruction.
There we concluded that it injected a straw issue
into the case and is confusing to the jury. This
is somewhat akin to 'the mere fact of an injury'
instruction as was given in this case. In
Gagosian v. Burdickls Television & Appliances
(1967), 254 Cal.App.2d 316, 62 Cal.Rptr. 70,
California eliminated 'the fact of an injury'
instruction from ordinary negligence actions,
stating:
"'. .. Since it but elucidates the obvious
to the jury, and need not be given to meet
any rule of appellate procedure, we join
heartily in the recommendation of its authors
for its "decent burial". The trial judge
who strikes the "mere happening" instruction
from his instruction book and completely
erases it from his memory will save time in
instruction and much in retrial after reversal.'
"We also conclude that in an ordinary
negligence action that such instruction
should be given a 'decent burial1 in this
State. " 588 P. 2d at 506, 507.
The evil in giving such an instruction in a --
res ipsa
case is that the jury may consider that they are foreclosed
from considering the evidence provided by the happening of
the accident itself. Jensen v. Minard (1955), 44 Cal.2d
325, 282 P.2d 7, 9. Therefore we hold the instructions here
to be so incompatible as to require reversal.
In view of our holding on the second issue, it is
unnecessary to review whether the evidence supported the
defendant's verdict.
The cause is reversed and remanded for a new trial.
We Concur:
V Justice
Mr. Chief Justice Frank I. Haswell and Mr. Justice John C.
Harrison would affirm the judgment of the District Court.