No. 81-440
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
MICHAEL R. JACQUES,
Plaintiff, Respondent and
Cross-Appellant,
THE MONTANA NATIONAL GUARD, DEPARTMENT
OF MILITARY AFFAIRS OF THE STATE OF
MONTANA, and THE STATE OF MONTANA,
Defendants, Appellants and
Cross-Respondents.
Appeal from: District Court of the Third Judicial District,
In and for the County of Deer Lodge
Honorable Robert Boyd, Judge presiding.
Counsel of Record:
For Appellants:
Garlinqton, Lohn and Robinson, Missoula, Montana
Gary L. Graham argued and Gary B. Chumbrau argued,
Missoula, Montana
For Respondent :
Johnson, Skakles and Kebe, Anaconda, Montana
Greg J. Skakles argued, Anaconda, Montana
Submitted: May 21, 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion
of the Court.
This is an appeal by defendant from judgment entered
May 15, 1981, by the Third Judicial District Court following
a jury verdict in favor of plaintiff for $1,390,000.00 and
from the order entered thereafter on post-trial motions.
Plaintiff cross-appeals.
Plaintiff's legs were traumatically amputated by an
explosion on February 6 , 1977. Plaintiff, employed at the
Anaconda Smelter in Anaconda, Montana, had been engaged in a
conversation with a co-employee, Larry Raver. During the
conversation, Raver picked up a "projectile" or large shell
from his nearby truck and was holding it in his hands.
Raver explained to the plaintiff that the shell was a dud
but that it was designed to "go off" in a certain manner.
When Raver was concluding this statement, the plaintiff,
concerned of the danger, began running for safety. The
shell exploded. Raver was killed and plaintiff's injuries
ensued.
Plaintiff filed suit against the Montana National Guard
and the State of Montana alleging that the decedent Raver
obtained the shell from the National Guard firing range in
the Deer Lodge-Mt. Powell area. Plaintiff's proof established
that the National Guard held exercises in this area and that
large ammunition was left after the exercises. Plaintiff
alleged negligence in failure to clean up the area and in
leaving live ammunition where the public had access to it.
Substantial credibile evidence established a case of negligence
and defendants do not appeal that determination. Defendants
contend that plaintiff totally failed to prove that Raver
obtained the shell in question from the firing range near
Deer Lodge.
Two other issues are presented for review. Defendants
contend that the present limitation on state liability for
damages should apply or, in the alternative, that any recovery
should be limited to applicable insurance limits. In a
cross-appeal plaintiff challenges the constitutionality of
section 2-9-317, MCA, which exempts the State from paying
interest on judgments for a two year period. The sufficiency
of evidence question must be decided first.
SUFFICIENCY - EVIDENCE
OF
Plaintiff's case for proximate cause was supported by
the following:
(1) Plaintiff's testimony that the shell which caused
his injuries was approximately eighteen inches long and
about three inches in diameter;
(2) Evidence from the National Guard that exercises
near Deer Lodge had included the firing of a projectile
about eighteen inches long with a three-four inch diameter;
(3) Testimony from several witnesses that large live
rounds had been found in the area of Mt. Powell;
(4) Deposition testimony from Larry Raver's widow
establishing that Raver had traveled by motorcycle in the
Mt. Powell area and during his motorcycle travels had collected
what might be termed "junk items";
(5) Larry Raver, while demonstrating a large shell to
a co-employee prior to this accident, stated that he had
found the shell;
(6) Other sources of the shell in question were few,
if any.
Defendant countered with expert testimony tending to
prove that the round which exploded and injured the plaintiff
was a 2.75 inch rocket round with a mark-176 fuse. Defendants'
evidence further sought to prove that such a rocket round
had never been fired by the Montana Xational Guard at the
Deer Lodge firing range.
The issue is whether plaintiff's circumstantial evidence
was sufficient to create a jury issue on proximate cause.
It is incumbent upon the plaintiff to present evidence from
which a jury might reasonably infer that Larry Raver obtained
the shell in question from the National Guard firing range
near Deer Lodge. Circumstantial evidence sufficient to
prove proximate cause in a civil cause need not exclude
every reasonable conclusion other than the conclusion sought
to be established. Lenherr v. NRM Corp. (D.Kan. 1980), 504
F.Supp. 165. Plaintiff's evidence is sufficient if it
affords a basis for a reasonable inference by the trier of
fact although there are other reasonable inferences which
might be drawn by that trier of fact. Arterburn v. St.
Joseph Hospital and Rehabilitation Center (1976), 220 Kan.
With these rules in mind, we will now review that
evidence offered by plaintiff to prove the proximate cause
thesis. Upon this evidence, the plaintiff's contention for
a submissible jury issue must rise or fall.
The following testimony was given by Gerald Effing,
retired National Guard Colonel:
"Q. Did you know anything about the firing area
down in Deer Lodge?
"A. Yes, I did.
"Q. Could you tell us what you knew about
that area?
"A. Well, we started firing there in 1956 and
fired there in '56 and '57 and then we went down
to Townsend in 1958 or about 1961 and then went
back to Deer Lodge for '62 through '66.
"Q. What type of guns or what did you fire there?
"A. Well, the artillery, we had 105 millimeter
howitzers and we had 155 millimeter howitzers.
"Q. And the ammunition which the artillery
fired, was that all live ammunition?
"A. Yes, it was.
"Q. First, could you state what the general
size of a 105 projectile is?
"A. As far as length?
"Q. Just generally.
"A. It would probably be 18 inches long.
"Q. Okay.
"A. About three or four inches in diameter."
The following testimony of the plaintiff was offered to
show the similarity of the shell which injured the plaintiff.
Mickey Jacques testified:
"Q. Did you have a chance to look at the shell
he was holding?
"A. Yes.
"Q. And could you describe it for us?
"A. Yes. It was a foot -- approximately a
foot and a half long and about three inches
in diameter."
Plaintiff sought through several witnesses to establish the
existence of similar rounds following National Guard exercises.
The following testimony is illustrative. Charles Fudge,
Forester, U.S. Forest Service, testified:
"Q. Prior to this first time you came in con-
tact in June of 1969 with the National Guard
people, had you ever been on the Montana State
Prison property or forest service property in
the vicinity where this fire occurred?
"A. Yes.
"Q. Had you ever observed any rounds or proj-
ectiles out there?
"A. Yes. To the best of my recollection, it
would have been in the fall. It would have
been in the fall of 1968.
"Q. Do you recall where you were when you
observed these projectiles?
"A. They were on the face of a grassland
area leading up towards Deer Lodge Mountain
and Mount Powell ridge, both on Montana
State Prison land and at the top of the edge
of a grass opening where timber began. I
observed one or more projectiles on National
Forest lands."
Defense cross-examination of Charles Fudge revealed the
following:
"Q. Have any other incidents come to your
attention where high explosive projectiles
have been found in the area?
"A. Yes.
"Q. When was that?
"A. I believe that was in 1972.
"Q. Would you relate what your recollection
of those events were?
"A. Yes. Rob Malinsky, who was an assistant
of mine at Deer Lodge, came to me one day and
indicated that he had a report from a Deer
Lodge resident, as I recall, who had found
some projectiles along the shore or just with-
in Powell Lake."
Laurence Lambert, Montana State Prison employee, testified:
"Q. What area did you see those shells in?
Is there a creek or something?
"A. It's on the ridge between Tin Cup Creek
and Robinson Creek. There's a horse trail
that goes to the lake and it's right where
the horse trail breaks at the top of the
ridge.
"Q. How long ago did you see these shells?
"A. I would say it was '77 or '78.
"Q. Has there been more than one shell you've
observed out there?
"A. Yes.
"Q. How many would you say?
"A. Oh, about 30."
Other corroborative evidence was received but the
testimony quoted above represents the type of proof offered
by the plaintiff to establish the existence of large shells
in the area of the Deer Lodge firing range.
Plaintiff produced through deposition testimony of
Larry Raver's widow, evidence that Raver traveled in the
area where similar rounds were known to have existed. In
pertinent part, she testified as follows:
"Q. Would he ride his bike twelve months out
of the year?
"A. Yes.
"Q. Do you have any idea where he rode, Delores?
"A. Well, I know for a fact that he rode on
the mountains up above our house. He rode quite
a bit around Helena, he rode alot over towards
Wisdom and German Gulch. He just crisscrossed
everywhere on that bike.
"Q. Did Larry ever bring anything back with
him, Delores, when he was on these rides?
"A. He would bring back little things that he
found of interest. He might spend an afternoon
going through an old rambled-down shack and
anything that he thought was adventurous, he
would bring it home.
"Q. How would he carry these things?
"A. I had bought him a set of saddlebags for
the bike and they got torn, so he put a rack on
the back of the bike and he had a box fixed to
it that he could put his things in.
"Q. Where did Larry used to fish, Delores?
"A. Mainly in rivers and streams, but all over
the State -- or this part of the State.
"Q. Do you know whether he ever camped or
fished in any of the mountain lakes up in
the Racetrack or Mount Powell area?
"A. Yes, he went up there frequently."
Plaintiff offered the testimony of co-employees, that
Raver had displayed a large projectile to them at a time
prior to this accident, and had told them where he had found
it. Defendants objected on the basis of hearsay and the
objection was sustained. However, the following testimony
was introduced through James Ficklin, a co-employee, and
was received without objection:
"Q. Did you ever see a shell in Larry Raver's
possession up on the hill?
"A. ...I'm not sure of the exact date. It
seems to me it was a couple weeks prior to when
Mick was injured and Larry was killed. . . I was
late for work that day and Larry followed me into
the lot. ..he did specify that he had something
that he wanted to show me that he found.
"Q. When he pulled up behind you and stopped
you, did he get out of the car?
"A. I pulled in and parked my vehicle and when
I got out, Larry was outside of his truck but
he had his door open. What he was doing was
security. When I turned, I walked up and ap-
proached the vehicle and when I turned around,
I could see some sort of projectile."
Testimony that Raver found a shell, which may have been the
one responsible for plaintiff's injuries, provides evidence
from which the jury could rule out several alternative
sources, i.e., that Raver brought the shell home from Vietnam
or that he purchased it from anyone.
Plaintiff offered other testimony tending to prove that
the plaintiff had not traveled widely outside of Montana,
had not brought the shell back from Vietnam, and generally
proved the lack of other sources for a projectile similar to
the one which injured the plaintiff.
Defendant produced expert testimony, which, if believed,
established that the round which injured the plaintiff had
not been fired at the Deer Lodge firing range. It is unnecessary
to detail this testimony. Plaintiff was able to impeach the
credibility of defense experts to some extent, but the
expert testimony remained sufficiently strong to support a
defense verdict had one been rendered.
In Thompkins v. Northwestern Union Trust Co. of Helena,
Montana (1982), Mont . -- , 645 P.2d 402, 408, 39 St.Rep.
845, 853, we stated that: "The jury can choose to adopt the
testimony offered by one side to the exclusion of the other.
The jury is free to disregard all of the expert testimony."
In most cases, expert testimony does not mandate a result
because, by its very nature, expert testimony deals with
opinion evidence. Irrefutable facts need not be established,
and most likely would not be established, through offering
expert opinion. Nevertheless, we have sought guidance from
other jurisdictions. The cases which bear most directly
upon the issue to be here resolved are cases dealing with
product identification. In those cases the plaintiff was
injured by a defective product and the defendant contended
plaintiff had failed to prove that defendant was related to
the product in question.
In Smith v. J. C. Penney Company, Inc. (1974), 269
Or. 643, 525 P.2d 1299, plaintiff was badly burned when a
gasoline fire ignited her coat. Suit was instituted against
the retailer, J. C. Penney Company, and against Bunker-Ramo,
alleged by plaintiff to have supplied the fabric used by the
manufacturer. A verdict was returned against Bunker-Ramo
who then appealed. Plaintiff sought to prove that a Borg
trade name on the fabric identified defendant Bunker-Ramo as
the supplier. At trial, Rothman, an employee of the manufacturer
Roseta, explained that the identification linking Bunker-
Ramo to the fabric was meaningless; that from June 2, 1970,
forward, Roseta obtained fabric from both Mauldin Mills and
Bunker-Ramo but that all fabrics, including those obtained
from Mauldin Mills, bore the Bunker-Ramo label. Therefore,
it was concluded that it would be impossible to tell whether
the fabric in question came from Bunker-Ramo or from ~ a u l d i n
Mills. Bunker-Ramo further offered expert testimony from an
employee who testified that an analysis of plaintiff's coat
showed that the fabric in plaintiff's coat definitely was
supplied by Mauldin Mills and not Bunker-Ramo. This evidence
was not contradicted by other expert testimony. On appeal
the question was whether there was sufficient evidence
linking the coat to defendant, Bunker-Ramo. In sustaining
the jury verdict, the Supreme Court of Oregon said:
"Or the jury could find that even if it were
manufactured subsequent to June 2, 1970, the
notations on the cutting order and the tags
proved Roseta used Borg fabrics. They could
disbelieve Rothman's explanation that such
notations did not prove Borg fabrics were
used." 525 P.2d at 1302.
In commenting on defendant's expert testimony, the
Oregon court said:
"The jury did not have to accept the testi-
mony of Mr. Swihart although his testimony
was not directly contradicted." 525 P.2d at
1303.
The Oregon court held that the witness was sufficiently
impeached for credibility to be a jury issue.
In Neubauer v. Coca Cola Bottling Company of Chicago (1968),
96 Ill.App.2d 18, 238 N.E.2d 437, plaintiff was injured by
the putrid contents of a Coca Cola. Plaintiff offered proof
that the Coca Cola bottle was a ten-ounce bottle purchased
from "Tony's Liquor Store." The owner of Tony's Liquor
Store testified that defendant had never supplied him ten-
ounce Coke bottles. The Illinois court held that such
testimony did not foreclose a verdict for plaintiff. The
court said:
"The defendant relies, primarily,on the fact
that the Coke in question was in a ten-ounce
bottle; that the store owner and the defen-
dant's employees testified that ten-ounce
bottles of Coke were not sold to the store;
that the defendant's witnesses stated that
ten-ounce bottles are sold to business enti-
ties where there is on-the-premises consump-
tion through coin operated coolers,and to
certain other outlets for resale in case lots
as leader items. . .
"We cannot say that the plaintiff's testimony,
and the further evidence that the defendant
was the exclusive distributor in the area, and
that Tony's Liquor Store purchased its Coke
from the defendant, is of insufficient pro-
bative value to show that the Coke in question
was bottled by the defendant. The direct,
positive evidence relative to the ten-ounce
bottle was conflicting. From this evidence
the jury might well have determined that a
ten-ounce bottle was mistakenly delivered
to Tony's Liquor Store by the defendant.
Whatever else it may have determined on
the basis of these facts, there was adequate
evidence for a jury to decide that the Coke
in question was bottled and sold by the de-
fendant." 238 N.E.2d at 439-440.
We think expert testimony offered by defendant, though
unrefuted except for impeachment, does not compel or mandate
a result for defendant. The jury should be free to weigh
that testimony and should be able to accept or reject it.
We must here decide whether, viewing the evidence in a
light most favorable to plaintiff, a jury issue was created.
Plaintiff offered no direct evidence to prove that decedent
Larry Raver obtained the projectile which injured the plaintiff,
from the firing range near Deer Lodge. Whether plaintiff
has succeeded in creating a submissible fact question on
proximate cause presents a close question to this Court.
The resolution of this question necessarily involves evaluating
the role of a trial judge or appellate court in removing
cases from jury consideration.
The following language from Karczewski v. Ford Motor
Company (N.D. Ind. 1974), 382 F.Supp. 1346, aff'd 515 F.2d
511 (7th Cir. 1975), is instructive:
"Motions for directed verdict or for judgment
N.O.V. are proper only when there is a complete
absence of any evidence to warrant submission
to a jury. Cities Service Oil Co. v. Laurey,
403 F.2d 537 (5th Cir. 1968). In this regard
evidence and all inferences must be considered
in the light most favorable to the party oppos-
ing directed verdict. Continental Air Lines
v. Wagner Morehouse, 401 F.2d 23 (7th Cir.
1968). Some courts suggest that only evidence
supporting the theories of the party opposing
directed verdict may be considered. Dun &
Bradstreet v. Miller, 398 F.2d 218 (5th Cir.
1968). Others suggest that directed verdict
is proper only where there is a complete ab-
sence of the probative facts to support the
jury verdict. Boeing Co. v. Shipman, 411
F.2d 365 (5th Cir. 1969). The fundamental
idea in all this compels a Federal district
trial court to exercise the greatest self-
restraint in interfering with the constitu-
tionally mandated processes of jury decision.
The message is to do so only in the clearest
of cases. This is manifestly not one of
them." 382 F.Supp. at 1348.
We agree with the legal philosophy articulated by Judge
Allen Sharp in the Karczewski case. Recently this Court
reversed a new trial granted to plaintiff, thereby reinstating
a jury verdict in favor of defendant. In disapproving the
trial judge's preemptive order we said:
"To honor this action would create a bench
supremacy and sap the vitality of jury ver-
dicts." Nelson v. Hartman, Cause No. 81-467
(decided August 5, 1982), Mont. I
P. 2d -1 - St.Rep.
We agree with the sentiment expressed by Justice Black
in a dissenting opinion filed in Galloway v. United States
(1943), 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458, (Black,
J., dissenting). Mr. Justice Black, in warning of possible
constitutional infringements inherent in the directed verdict
or nonsuit, said:
"As for myself, I believe that a verdict
should be directed, if at all, only when,
without weighing the credibility of the
witnesses, there is in the evidence no
room whatever for honest difference of
opinion over the factual issue in contro-
versy. I shall continue to believe that
in all other cases a judge should, in
obedience to the command of the Seventh
Amendment, not interfere with the jury's
function. Since this is a matter of high
constitutional importance, appellate courts
should be alert to insure the preservation
of this constitutional right even though
each case necessarily turns on its peculiar
circumstances." 319 U.S. at 407, 63 S.Ct.
at 1096, 87 L.Ed. at 1480.
Applying the above articulated principle to the facts
here, we cannot say that there is a complete absence of
proof on proximate cause which would prevent plaintiff from
having a jury resolution of his case. From the facts which
we have detailed in this opinion, we hold that a jury of
twelve reasonable people, could infer without resort to
speculation, that the projectile which injured plaintiff
came from the firing range near Deer Lodge. The jury was
not compelled to accept the testimony of defendants' expert
witnesses. Rather, that testimony could properly be weighed
against plaintiff's circumstantial proof leaving the trier
of fact free to make the factual determination. The jury
has spoken, and regardless of how this Court would have
decided the fact issues, we must affirm a verdict which we
have found to be supported by substantial credible evidence.
PLAINTIFF'S RECOVERY LIMITED?
Appellants contend that exposure in this case is limited
to applicable insurance limits by section 40-4402, R.C.M.
1947. The statute, adopted in 1963, provides as follows:
"Immunity defense prohibited when liability
insured-reduction of award to policy limits.
Whenever an insurer accepts any premium,
money, or other consideration from a politi-
cal subdivision of the state, municipality,
or any public body, corporation, commission,
board, agency, organization, or other public
entity for casualty or liability insurance,
neither such insured nor insurer shall raise
the defense of immunity from suit in any
damage action brought against such insured
or insurer, and any agreement in the insur-
ance contract permitting the defense of im-
munity is hereby declared void. .. If the
court determines that the defendant could
have successfully raised the defense of im-
munity, and if the verdict exceeds the limits
of the applicable insurance, the court shall
reduce the amount of such judgment or award
to a sum equal to the applicable limit stat-
ed in the policy."
The 1972 Montana Constitution, Article 11, Section 18,
provides :
"The state. . .shall have no immunity from
suit for injury to a person or property,
except as may be specifically provided by
law by a 2/3 vote of each house of the leg-
islature."
The intent of section 40-4402 was to provide for waiver
of sovereign immunity where insurance was carried but to
limit such waiver to the limits of the liability policy.
The statute itself contemplated the existence of governmental
immunity which was abolished by the new constitution. The
purpose of the statute is made clear by the title which
provided:
"An act prohibiting the defense of sovereign
immunity where public bodies are insured;. ..
and providing for the reduction of awards to
policy limits where sovereign immunity defense
could have been successfully raised;. . ." Ch.
240, Laws of Mont. (1963).
Sovereign immunity could not be raised as a defense in
this case. The statute has no application.
Section 2-9-104, MCA, limiting state liability, became
law after this accident but was in effect at time of trial.
Appellants contend section 2-9-104, MCA, is procedural and
limits plaintiff's recovery because it existed when judgment
was rendered. This question was disposed of in Dvorak v.
Huntley Project Irrigation District (1981), Mont. r
639 P.2d 62, 38 St.Rep. 2176. Damages are substantive and
the measure of damage is governed by law in effect on the
date of injury. The District Court order denying any limitation
on plaintiff's recovery is affirmed.
- - STATE EXEMPT FROM PAYING INTEREST FOR TWO YEARS?
IS THE
Section 2-9-317, MCA, provides:
"No interest if judgment paid within two
years. If a governmental entity pays a
judgment within 2 years after the day on
which the judgment is entered, no penalty
or interest may be assessed against the
governmental entity."
Plaintiff contends that this statute violates Article
11, Section 18, of the 1972 Montana Constitution, which we
have previously set forth, in that it has the effect of
limiting the plaintiff's recovery.
In Leaseamerica v. State (1981), Mon t . , 625 P.2d
68, 38 St.Rep. 398, we held that the constitutional provision
abolishing governmental immunity did not render invalid the
statute exempting the State from paying interest upon a
judgment. However, we based that decision upon the fact
that the constitutional provision was intended to apply only
to torts and that since the subject matter of Leaseamerica
v. State was a contract, the constitutional provision had no
application. We did not decide whether the State could be
freed from paying interest on a tort judgment.
In the past this Court has treated interest as something
apart from the cause of action. In Stanford v. Coram (1903),
28 Mont. 288, 72 P. 655, the Court said:
". . . The judgment is itself a creation of
law. It bears no interest unless granted
by legislative enactment. .. A party is not
entitled to interest merely because he has a
judgment, but solely because the legislature,
in its discretion, has said he may charge in-
terest." 28 Mont. at 292, 72 P. at 655.
This Court has also stated that interest is a damage
for delay in payment of the principle obligation. See
State Highway Commission v. Marsh (1978), 175 Mont. 460,
We hold that interest on a judgment is not an integral
part of the cause of action itself. We find that section 2-
9-317, MCA, does not offend Article 11, Section 18, of the
Montana Constitution. We do not here decide whether the State
can be treated differently from other tort-feasors concerning
the subject of damages which are part of the cause of action
itself. We rather hold that interest, not being a detriment
arising from the wrongful act, can be suspended by statute as
was done here.
The judgment of the District Court is affirmed in its
entirety.
We Concur:
? L u L 6 1 WWcyea9
Chief Justice
Justices
Mr. J u s t i c e J o h n Conway H a r r i s o n d i s s e n t i n g .
Having c a r e f u l l y examined t h i s r e c o r d , I find t h a t the mst
t h a t c a n be s a i d f o r t h e p r o o f o f f e r e d by t h e p l a i n t i f f is a s
follows:
1. L a r g e a m m u n i t i o n was f i r e d b y t h e N a t i o n a l Guard on t h e
National Guard firing range near Deer Lodge, Montana.
2. Raver had large ammunition in his possession, which
e x p l o d e d and s e r i o u s l y i n j u r e d t h e p l a i n t i f f .
The q u e s t i o n b e f o r e t h i s C o u r t was w h e t h e r o r n o t t h i s p r o o f
made a jury issue; w h e t h e r t h e s h e l l c o u l d n o t h a v e come from
some o t h e r p l a c e ?
I n my o p i n i o n , t h e d e f e n d a n t ' s w i t n e s s e s e s t a b l i s h e d t h a t t h e
p r o j e c t i l e t h a t injured the p l a i n t i f f , c o u l d n o t h a v e come from
the Deer Lodge area because such a projectile had never been
fired in that area. However, the jury could disbelieve this
t e s t i m o n y and t h e r e f o r e w e had t o c o n s i d e r w h e t h e r or n o t the
p l a i n t i f f , by any manner, proved h i s c a s e .
I n my o p i n i o n , t h e r e was no t e s t i m o n y i n t h e r e c o r d l i n k i n g
t h e e x p l o d i n g p r o j e c t i l e t o a m m u n i t i o n used by t h e N a t i o n a l Guard
a t i t s f i r i n g r a n g e n e a r Deer Lodge. T h e r e is no p r o x i m a t e c a u s e
evidence i n the record t o support the verdict i n f a v o r of the
plaintiff. Therefore, while it c a n be argued that the shell
c o u l d n o t l i k e l y h a v e come from a n y o t h e r p l a c e ; i f the p l a i n t i f f
h a s a case, it is on t h e b a s i s t h a t it came from some o t h e r p l a c e
and is c o n n e c t e d somehow t o t h e d e f e n d a n t .
The f o l l o w i n g t e s t i m o n y of J a m e s F i c k l i n o f f e r e d b y r e s p o n -
d e n t f a l l s s h o r t of proving t h a t the projectile came from t h e
Deer Lodge a r e a :
"Q. How d i d you know him? A. I worked
approximately a y e a r a s a s e c u r i t y guard
d u r i n g t h e t i m e I was l a i d o f f i n t h e p i p e
s h o p and I m e t L a r r y p r i o r t o t h a t t i m e
b e c a u s e my f a t h e r was head of s e c u r i t y and I
met L a r r y t h r o u g h s t o p p i n g i n h i s o f f i c e .
"Q. A t t h e t i m e t h i s a c c i d e n t o c c u r r e d , w h a t
d e p a r t m e n t were you employed a t . A. I was a
pipe f i t t e r .
"Q. So you would h a v e known L a r r y R a v e r
b e f o r e t h a t t i m e ; is t h a t c o r r e c t ? A. Yes.
"Q. Did you e v e r s e e a s h e l l i n L a r r y R a v e r ' s
p o s s e s s i o n up on t h e h i l l ? A. I was w o r k i n g
maintenance. I ' m n o t s u r e of t h e e x a c t d a t e .
I t seems t o m e it was a c o u p l e weeks p r i o r to
when Mick was i n j u r e d and L a r r y was k i l l e d . I
p a r k e d a t t h a t time -- I p a r k e d i n a l o t i n
f r o n t on t h e c o a l p u l v e r i z e r which is a d j a c e n t
t o the converter building. I was l a t e f o r
work t h a t d a y and L a r r y f o l l o w e d m e i n t o t h e
l o t and a t t h a t t i m e -- t h e c o n v e r s a t i o n is
f a i r l y s k e t c h y b u t he d i d s p e c i f y t h a t he had
s o m e t h i n g t h a t he wanted to show m e t h a t he
found .
"MR. CHUMRAU: I o b j e c t , Your H o n o r , on t h e
b a s i s of h e a r s a y . THE COURT: O v e r r u l e d .
"Q. (By M r . S k a k l e s ) You r e c a l l t h i s was
a p p r o x i m a t e l y t w o weeks b e f o r e t h e a c c i d e n t ?
A. I t seems t o m e i t was j u s t p r i o r t o t h e
accident.
"Q. Where were you when you t a l k e d t o him a t
that time? A. Well, t h e r e was a n empty l o t
outside the converter building, outside the
maintenance o f f i c e , and that's where t h e
b u i l d n g was t h a t was r e f e r r e d t o a s t h e c o a l
p u l v e r i z e r and t h i s was a c r o s s t h e road from
t h a t area.
"Q. When he p u l l e d up b e h i n d you and s t o p p e d
y o u , d i d h e r g e t o u t of t h e c a r ? A. I pulled
i n and p a r k e d my v e h i c l e and when I g o t o u t ,
L a r r y was o u t s i d e of h i s t r u c k b u t he had h i s
d o o r o p e n . What h e was d o i n g was s e c u r i t y .
When I t u r n e d , I walked up and a p p r o a c h e d t h e
v e h i c l e and when I t u r n e d a r o u n d , I c o u l d see
some s o r t of p r o j e c t i l e .
"Q. Did he say anything when you turned
around?
"MR. CHUMRAU: I o b j e c t , Your H o n o r , o n t h e
b a s i s of h e a r s a y . THE COURT: You may t e s t i f y
a s t o w h e t h e r or n o t you had a c o n v e r s a t i o n
b u t n o t a s t o a n y t h i n g t h a t was s a i d .
"A. Could you c l a r i f y t h a t ?
"THE COURT: Did you have a c o n v e r s a t i o n ?
"A. Y e s , we d i d .
"THE COURT: You may n o t t e s t i f y a s t o
a n y t h i n g t h a t was s a i d b e c a u s e t h a t would be
hearsay.
"Q. (By M r . S k a k l e s ) How l o n g d i d t h i s e p i -
sode take? A. R e l a t i v e l y s h o r t , a few
seconds. I was l a t e f o r work and o n c e I saw
w h a t h e h a d , I g o t a good enough g l i m p s e t h a t
I knew it was a p r o j e c t i l e and I d o n ' t l i k e
things like that. I t o o k o f f f o r work.
"Q. You e n t e r e d i n t o a c a s u a l c o n v e r s a t i o n ;
i s t h a t c o r r e c t ? A. Not really.
"Q. Do you know why he p u l l e d up b e h i n d you?
A. to show m e
I g o t t h e i m p r e s s i o n he wanted
t h a t o b j e c t b e c a u s e I d o remember him s t a t i n g
--
"MR. CHUMRAU: I o b j e c t , Your H o n o r , on t h e
b a s i s of h e a r s a y . THE COURT: You may n o t
t e s t i f y as to a n y t h i n g s a i d to you, M r .
F i c k l i n , b u t o n l y as t o t h e f a c t s t h a t t o o k
p l a c e and w h a t was d o n e b u t n o t w h a t was s a i d .
"Q. ( B y M r . S k a k l e s ) I t was a s h e l l ? A. Of
some s o r t , y e s .
"MR. SKAKLES: I have no f u r t h e r q u e s t i o n s .
THE COURT: You may c r o s s - e x a m i n e , Mr.
Chumrau.
CROSS-EXAMAMINATION
BY MR. CHUMRAU:
"Q. M r . F i c k l i n , w e had a d e p o s i t i o n w i t h you
earlier, d i d n ' t w e , i n J a n u a r y of t h i s y e a r ?
A. Y e s , we d i d .
"Q. And you were a p r e t t y good f r i e n d o f
L a r r y R a v e r ' s and Micky J a c q u e s ; is t h a t
c o r r e c t ? A. Yes.
"Q. You came f r o m W a s h i n g t o n t o t e s t i f y a t
t h i s t r i a l ? A. Yes, I did.
"Q . N o w , d o you a l s o remember t h a t t h i s
o b j e c t , t h i s p r o j e c t i l e , was k i n d o f t a r n i s h e d
brown i n c o l o r and a n y w h e r e from 8 t o 1 2
i n c h e s -- A . I n my d e p o s i t i o n , I b e l i e v e I
s t a t e d as close as I c o u l d t e l l it was 8 o r 9
i n c h e s l o n g . A s f o r c o l o r , it had a b r o w n i s h -
g r e e n i s h c a s t to i t .
"Q. B r o w n i s h - g r e e n i s h c a s t ? A. T h a t kind of
rough cast t o it. I believe a t the t i m e I
s a i d it l o o k e d l i k e t a r n i s h or -- t h a t metal
o r b r a s s p i c k s up.
"Q. M r . F i c k l i n , as w e s a i d , w e t o o k y o u r
d e p o s i t i o n a t t h e end o f J a n u a r y and a t t h a t
t i m e I a s k e d you c e r t a i n q u e s t i o n s and you
g a v e c e r t a i n a n s w e r s ; i s t h a t t r u e ? A. Yes.
"Q. On t h a t d a y i n J a n u a r y , which was January
3 O t h , 1 9 8 1 , was t h i s q u e s t i o n s a s k e d o f you
a n d t h i s a n s w e r g i v e n by you? THE COURT:
Show it t o him f i r s t , c o u n s e l . A. Yes, I
believe I d i d say t h a t .
"Q. The q u e s t i o n was: 'You d i d n ' t see a n y
g r e e n c o l o r ? ' a n d t h e a n s w e r was, 'Not t h a t I
recall.' I s n ' t it a l s o t r u e t h a t t h e s h e l l
w a s b a s i c a l l y a c o n s i s t e n t c o l o r and t h e r e w a s
no d r a m a t i c change i n c o l o r ? I s t a t e d it w a s
p r i m a r i l y one c o l o r . I t w a s somewhat m o t t l e d
f r o m w h a t I c o u l d see b u t it was f a i r l y o n e
consistency .
"Q. Now, M r . F i c k l i n , i s n ' t it also t r u e t h a t
you h a v e n ' t heard a s p e c i f i c d e s c r i p t i o n of
the s h e l l t h a t a c t u a l l y exploded on February
6th; i s n ' t t h a t t r u e ? A. N o , I h a v e n ' t .
"Q. And you were n o t on d u t y t h a t d a y ? A.
No, I was o f f o n a n o t h e r s h i f t .
"Q. So i s n ' t it t r u e t h a t you h a v e no way o f
knowing t h e s h e l l t h a t e x p l o d e d o n t h a t d a y
was t h e same s h e l l you saw i n h i s t r u c k b e f o r e
work t h a t d a y ? A. No, I don't.
IrQ. I n o t h e r words, it c o u l d have been a
completely d i f f e r e n t s h e l l ; i s n ' t t h a t true?
A. I s u p p o s e it c o u l d h a v e b e e n .
"Q. I s n ' t it a l s o t r u e t h a t you t h i n k h e g o t
t h e s h e l l o u t o f t h e c a b t h a t you saw? A.
From as n e a r as I c o u l d t e l l , it was somewhere
i n t h e cab of t h e v e h i c l e .
"MR. CHUMRAU: I have no futher questions.
THE COURT: Any r e d i r e c t ?
"MR. SKAKLES : I have no q u e s t i o n s . THE
COURT: You may s t e p down, M r . F i c k l i n .
"MR. SKAKLES: I c a l l H a r r y Casey."
However, t h e r e was e x c l u d e d t e s t i m o n y which may h a v e made a
jury issue for the plaintiff. Here, the plaintiff sought to
e s t a b l i s h through the t e s t i m o n y o f James F i c k l i n , a co-worker,
a n d H a r r y C a s e y , a n o t h e r co-employee , t h a t the decedent, Raver ,
t o l d e a c h o f t h e two w i t n e s s e s t h a t h e o b t a i n e d t h e s h e l l s from
a n a r e a n e a r Deer Lodge. The s h e l l s d i s c u s s e d i n t h o s e c o n v e r -
sations were large projectiles in the decedent's possession
weeks o r months b e f o r e t h e a c c i d e n t . The p l a i n t i f f I s proposed
t e s tirnony, sought t o be introduced through Ficklin and Casey ,
would n o t h a v e e s t a b l i s h e d beyond d o u b t t h a t t h e p r o j e c t i l e t h a t
exploded came from the Deer Lodge area. However, since the
s h e l l s , which h e s t a t e d came from t h e f i r i n g r a n g e a t Deer L o d g e ,
a r e s i m i l a r t o t h e o n e w h i c h was e x p l o d e d , it is my o p i n i o n t h a t
a jury i s s u e on whether t h e e x p l o d i n g p r o j e c t i l e came from t h e
Deer Lodge area would be made o n b e h a l f of the p l a i n t i f f and,
therefore, the crucial i s s u e would become w h e t h e r to a d m i t t h e
h e a r s a y w h i c h w a s e x c l u d e d by J u d g e Boyd.
The testimony that was excluded as hearsay was sustained
without any reasons given. We do not know from the record
whether the trial court considered c e r t a i n exceptions to the
hearsay rule. Had the trial court given its reasons for
excluding said testimony, this court could have reviewed the
c o r r e c t n e s s of t h e t r i a l c o u r t ' s r u l i n g s w i t h o u t d e f e r r i n g to t h e
trial court's discretion.
Here t h e p l a i n t i f f claims t h a t s t a t e m e n t s of R a v e r made to
both C a s e y and Ficklin are a d m i s s i b l e as d e c l a r a t i o n s against
interest. T h i s b r i n g s u s to i n t e r p r e t a t i o n of o u r R u l e 8 0 4 o f
t h e Montana R u l e s o f Evidence. The a p p l i c a b l e p o r t i o n of the
r u l e r e a d s as f o l l o w s :
" ( b ) Hearsay e x c e p t i o n s . The f o l l o w i n g a r e
n o t excluded by t h e hearsay r u l e i f t h e
d e c l a r a n t is u n a v a i l a b l e as a w i t n e s s :
"( 3 ) Statement against i n t e r e s t . A statement
w h i c h was a t t h e time of i t s making so f a r
c o n t r a r y to t h e d e c l a r a n t t s pecuniary o r
p r o p r i e t a r y i n t e r e s t , o r so f a r t e n d e d t o s u b -
j e c t him t o c i v i l or c r i m i n a l l i a b i l i t y , or t o
r e n d e r i n v a l i d a claim by him a g a i n s t a n o t h e r ,
o r t o make him a n o b j e c t of h a t r e d , r i d i c u l e ,
o r d i s g r a c e , t h a t a r e a s o n a b l e man i n h i s
p o s i t i o n would n o t h a v e made t h e s t a t e m e n t
u n l e s s he b e l i e v e d i t t o be t r u e . A s t a t e m e n t
t e n d i n g to expose t h e d e c l a r a n t t o c r i m i n a l
l i a b i l i t y and o f f e r e d t o e x c u l p a t e t h e a c c u s e d
is not admissible u n l e s s corroborating cir-
cumstances clearly indicate the trust-
w o r t h i n e s s of t h e s t a t e m e n t .
" ( 5 ) Other exceptions. A s t a t e m e n t n o t speci-
f i c a l l y c o v e r e d by a n y o f t h e f o r e g o i n g e x c e p -
t i o n s b u t having comparable circurnstancial
guarantees of trustworthiness. " Rule
8 0 4 ( b ) ( 3 ) ( 5 ) Mont.R.Evid.
I t is my o p i n i o n t h a t it i s s t r e t c h i n g t h e r u l e to s a y t h a t
t h e proposed testimony c o n s t i t u t e s a " s t a t e m e n t a g a i n s t i n t e r e s t "
a s contemplated by t h e r u l e . It is my v i e w of t h e law t h a t we
n e e d n o t make t h a t d e t e r m i n a t i o n s i n c e I b e l i e v e t h a t t h e s e s t a -
t e m e n t s of t h e d e c e d e n t s h o u l d be a d m i t t e d u n d e r s u b s e c t i o n ( 5 )
o t h e r e x c e p t i o n s as s e t f o r t h a b o v e . I n a t t e m p t i n g to d e t e r -
m i n e t h e i n t e n t o f s u b s e c t i o n ( 5 ) , it is n e c e s s a r y to go b a c k to
t h e c o m m i s s i o n comments. We should n o t e t h a t t h e F e d e r a l Rule
8 0 4 ( b ) ( 5 ) governs other exceptions of the hearsay rule. The
f e d e r a l r u l e states :
"A s t a t e m e n t n o t s p e c i f i c a l l y covered by any
o f t h e foregoing e x c e p t i o n s b u t having equiva-
lent circumstantial guarantees of trust-
worthiness. I f the court determines t h a t (A)
t h e s t a t e m e n t is o f f e r e d a s e v i d e n c e of a
m a t e r i a l f a c t ; ( B ) t h e s t a t e m e n t is more p r o -
b a t i v e on t h e p o i n t f o r which it is o f f e r e d
t h a n a n y o t h e r e v i d e n c e which t h e p r o p o n e n t
c a n p r o c u r e t h r o u g h r e a s o n a b l e e f f o r t s ; and
( C ) t h e g e n e r a l p u r p o s e s of t h e s e r u l e s and
t h e i n t e r e s t s of j u s t i c e w i l l b e s t be s e w e d
b y t h e a d m i s s i o n of the statement into
evidence. . ." R u l e 8 0 4 ( b ) (5), Fed.R.Evid.
Here the offered testimony qualifies under the guidelines
e n u n c i a t e d s p e c i f i c a l l y by t h e federal rule. That i s to s a y ,
the offered testimony is "(1) m a t e r i a l , and ( 2 ) more proba-
t i v e on t h e p o i n t t h a n a n y o t h e r e v i d e n c e which the plaintiff
c o u l d o f f e r , and ( 3 ) t h e e n d s of j u s t i c e would be s e w e d . " The
plaintiff h a s no o t h e r e v i d e n c e to t a k e t h i s c a s e t o t h e j u r y .
It c e r t a i n l y would f r u s t r a t e t h e c a u s e of justice to deny t h e
a d m i s s i o n of t h o s e s t a t e m e n t s .
Montana d o e s n o t h a v e a s p e c i f i c g u i d e l i n e s e t t i n g f o r t h t h e
federal rule; o u r d r a f t e r s of t h e R u l e s of E v i d e n c e f o r Montana
wished t o h a v e t h e b r o a d e r r u l e which would a l l o w t h e a d m i s s i o n
of hearsay and which would not fall within the federal
guidelines. S e e comments i n "Montana Lawyers Rule Book," a t p a g e
I t i s o b v i o u s i n r e a d i n g t h e comments of t h e d r a f t e r s of o u r
r u l e s of e v i d e n c e t h a t t h e y w i s h e d t o h a v e a more l i b e r a l h e a r s a y
r u l e which would allow f o r t h e a d m i s s i o n of e v i d e n c e n o t con-
templated a s admissible under t h e f e d e r a l r u l e . S i n c e t h e testi-
mony s o u g h t t o be s u b m i t t e d by t h e p l a i n t i f f h e r e would q u a l i f y
u n d e r t h e f e d e r a l g u i d e l i n e s it most c e r t a i n l y s h o u l d be a d m i t t e d
u n d e r a more l i b e r a l Montana r u l e . I b e l i e v e t h e following fac-
t o r s m i l i t a t e s t r o n g l y i n f a v o r of t h e a d m i s s i o n of testimony:
( 1 ) The d e c l a r a n t is d e c e a s e d and t h e r e f o r e u n a v a i l a b l e a t t r i a l ;
( 2 ) t h e r e is n o t h i n g i n h e r e n t i n t h e c i r c u m s t a n c e s of the state-
m e n t which would i n d i c a t e t h e r e was a m o t i v e on t h e p a r t of the
d e c l a r a n t t o l i e a b o u t t h e f a c t s s o u g h t to be a d m i t t e d ; ( 3 ) the
plaintiff cannot e s t a b l i s h the fact i n a n y o t h e r way; (4) the
j u s t i c e would be f r u s t r a t e d by t h e e x c l u s i o n of such e s s e n t i a l
testimony.
F o r t h e above r e a s o n , I would r e v e r s e and remand t h e c a s e f o r
retrial on the basis that there was insufficient evidence to
support a verdict, but, with the admission of the excluded
testimony, a jU ~ Y issue might have been made.
In summation, I feel while there is not evidence in the
record linking the exploding projectile to the National Guard
f i r i n g r a n g e n e a r Deer Lodge, w i t h t h e a d m i s s i o n of t h e t e s t i m o n y
o f Casey and F i c k l i n , a c a s e might be made. F e e l i n g t h a t it was
error to exclude this testimony, I would remand for retrial.
Mr. J u s t i c e D a n i e l J. Shea d i s s e n t i n g :
I d o n o t b e l i e v e t h a t t h e e v i d e n c e was s u f f i c i e n t t o p e r m i t
a j u r y t o f i n d t h a t t h e o f f e n d i n g p r o j e c t i l e was f o u n d on t h e
N a t i o n a l Guard f i r i n g r a n g e o r n e a r t h e f i r i n g r a n g e n e a r Deer
Lodge. On t h e o t h e r h a n d , had t h e t r i a l c o u r t a d m i t t e d t h e
t e s t i m o n y o f James F i c k l i n a n d H a r r y Casey t h a t t h e d e c e d e n t
t o l d them h e had found t h e s h e l l n e a r D e e r Lodge, a j u r y i s s u e
was made. J u s t i c e Harrison c o r r e c t l y concludes t h a t t h e evidence
s h o u l d h a v e been a d m i t t e d . Accordingly, I j o i n J u s t i c e Harrison
i n h i s d i s s e n t t h a t t h e judgment s h o u l d b e v a c a t e d a n d a new
t r i a l ordered -- with t h e d i r e c t i o n t h a t t h e excluded testimony
o f F i c k l i n and Casey s h o u l d b e a d m i t t e d .
n