Gee v. Egbert

No. 83-123
IN THE SUPREME COURT OF THE STATE OF YONTANA
1984

CONRAD GEE,
Plaintiff and Appellant,

EVERETT EGBERT, LARRY BUSCH, llIDWEST
WELDING, INC., MATZINGER ELECTRIC,
INC., and YELLOWSTONE HYDRAULICS, INC.,
Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable W. W. Lessley, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Wellcome & Frost; Albert A. Frost, Bozeman, Montana

For Respondents:

P. Keith Reller, Helena, Montana (Busch)
Dwaine Roybal, Billings, Montana (Egbert)
Gig Tollefsen, Bozeman, Montana (Midwest Electric)
William E. Jones, Missoula, Flontana (Matzinger Electric)
Gregory Morgan, Eozeman, Montana (Yellowstone Hydraulics)

Submitted on Briefs: November 10, 1993

Decided: March 29, 1984

Clerk
Mr. Justice John C. Sheehy del-ivered the Opinion of the
Court.
Appeal by the pl-aintiff, Conrad Gee, from a judgment
against him based on jury verdicts entered in the District
Court, Eighteenth Judi-cia1 District, Gallatin County. This
case was a "th.ird pa.rtyW action incident to a. work related
injury and in part was the subject of a prior opinion in Gee
v. Cartwheel Restaurant (Mont. 1982), 642 P.2d 1070, 39
St.Rep. 597.
Gee sought to recover damages based on strict liability
in tort, on negligence, and on breach of warranty. Gee was
injured when he attempted to remove a chef's jacket which had
become lodged between the floor of a dumbwaiter and the
landing sill of the upper floor of the Cartwheel Restaurant.
After unsuccessfully attempting to dislodge the jacket from
outside the dumbwaiter, Gee entered the dumbwaiter and pulled
on the jacket. Suddenly, the dumbwaiter broke loose and
descended. Plaintiff's arm was caught between the frame work
of the dumbwaiter car and the dumbwaiter shaft.
In late 1.970 and early 1971, Larry Busch hired Everett
Egbert to construct a 12-sided building which would later
become the Cartwheel Inn-Restaurant, at the Four Corners near
Bozeman. The plan for the 12-sided building was devised by
Busch and Egbert and reduced to a drawing from which the
building was built. Egbert consulted with an engineer for
assistance with the structural components, and with
mechanical, plumbing and electrical experts for their
respective installations. Busch contracted with Egbert
because previously Egbert had built a house for him and had
done some other work, and Busch had relied on Egbert's
reputation as a builder.
 During the course of construction, either Busch or
Egbert decided that installation of a dumbwaiter in the
building would be useful. Neither remembered whose idea it
was. Busch had no specific requirements for the dumbwaiter,
except for its location in the building, and its general size
and weight requirements, dictated by its proposed use in
hauling carts of dishes and a thermidor heating cart.
Egbert contacted Midwest Welding for assistance in
building the dumbwaiter car; Mid.west in turn contacted.
Yellowstone Hydraulics. Ultimately, Egbert built the shaft
for the dumbwaiter in the building, Midwest fabricated a
platform or dumbwaiter car, Yellowstone Hydraulics supplied
the hoist and motor mechanism, Midwest Welding installed the
system, and Matzinger Electric connected the electrical
controls. Egbert devised a door to open and close with the
dumbwaiter.
On completion of the Cartwheel Restaurant, Rusch
operated it from March, 1 9 7 1 until the fall of 1 9 7 4 . He
leased it, repossessed it, and leased it aga.in. He sold it
outright to one Warburton, in February 1 9 7 6 .
Gee had been employed at the Cartwheel Restaurant for
a.bout a year when the accident occurred. In that period of
time he worked as a dishwasher and did odd jobs. Part of his
duties included unloading from the dumbwaiter in the basement
of the premises, materials and produce that had been loaded
on the dumbwaiter by truck drivers. He testified that he had
never ridden i n the dumbwaiter.
. It was operated by pushing
buttons which raised or lowered it from floor to floor. We
have already described the incident which brought about Gee's
injuries on July 19, 1 9 8 0 .
 After the jury verdict, plaintiff made post-trial
motions which were by the court denied. This appeal ensues.
J.

Peremptory Challenges
The first issue raised by Gee is whether the District
Court erred in allowing each defendant four peremptory
challenges.
The number of peremptory challenges to be granted to
each party was a subject discussed at the pre-trial
conference. The court queried counsel for the defendants as
to whether they were antagonistic toward each other in their
positions in the case. Two of defendants' counsel indicated
that there was antagonism between all of them in that each
was pointing a finger at one or others of the defendants as
responsible for the injuries to the plaintiff. All of the
defendants were independent or independent contractors and
each would claim in the law suit that not it or he but those
of the other defendants were responsible. Counsel for
plaintiff at that time indicated first that the "antagonism
question does bother me. . . and I don't think it's clear
that they're all that antagonistic. They are all cl-aiming no
defect, no negligence, we aren't responsible, but there's not
the antagonism that we had in the Kuhnke case. . ." However,
at the end of the col.loquies between the court and
defendants' counsel the plaintiff's attorney told the court
1 withdraw my comment after hearing from counsel."
Thereupon the District Court made its ruling that it would
grant each party to the action four peremptory challenges to
the selection of the jury. No specific obiection was made by
plaintiff's counsel at that time.
 The cause came on for jury trial, prospective iurors
were examined on voir dire by all of counsel, and thereafter
the parties exercised their peremptory challenges by denoting
the same on a form provided by the Clerk of the District
Court. The form indicates that the plaintiff and each of the
parties defendant exercised all of their four peremptory
challenges. However, there is nothing on the record which
would indicate that plaintiff made any further objection,
requested further peremptory challenges, or objected to the
exercise by all of the parties defendant of some twenty (20)
peremptory challenges by them.
On appeal, Gee's counsel complains that the District
Court erred in granting the number of challenges, apparently
as inherent error, because no contention is made in the
briefs or in the record that Gee was prevented through the
grant of the peremptory challenges from getting a fair jury
to try his case, unless we are to consider the adverse
special verdicts against Gee as an indication of prejudice.
In other words, from all that appears of record, the cause
was fairly and fully tried by the jury selected after the
exercise of the peremptory challenges.
Essentially we summed up the law with respect to the
granting of extra peremptory challenges in Adams v. Cheney
(Mont. 19831, 661 P.2d 434, 442, 40 St.Rep. 383, 391.
Succinctly, section 25-7-224, MCA, entitles each party to
four peremptory challenges. In Lauman v. Lee (Mont. 1981),
626 P.2d 830, 38 St.Rep. 499, this Court approved the
granting of separate peremptory challenges to co-defendants
who occupy hostile positions toward each other. We held
however in Leary v. Kelly Pipe Company (1976), 169 Mont. 511,
549 P.2d 813, and in Ashley v. Safeway Stores, Inc. (1935),
100 Mont. 312, 47 P.2d 53, that the complaining party must
show he has been prejudiced by the grant of extra peremptory
challenges. We sta.ted in Leary that the complaining party
must show ( 1 ) that he exhausted his peremptory challenges,
(2) that he has suffered material injury from the actions of
the court, and (3) that as a result thereof, one or more
objectionable jurors sat on the case. 169 Mont. at 516, 549
P.2d at 816.
In Hunsaker v. Bozeman Deaconess Foundation (1978), 179
Mont. 305, 588 P.2d 493, this Court, recognizing the problem
that proving prejudice may be practically impossibl.e,
required that district courts consider the problem of
peremptory challenges at the pre-trial conference, which was
done in this case, and provide a record which expressly sets
forth the reasons for its ruling and the facts on which it
relies in making its decision. In this case, the exchange
between the District Court and defendants' counsel respecting
their antagonism was brief. However, its appears to have
been accepted by counsel for the plaintiff. But most
importantly, Gee here fails the Leary test because the record
before us does not show that Gee suffered material injury
from the action of the court or that because of the
additional challenges, one or more objectionable jurors sat
on the case.
We find no error therefore in the grant of additional
peremptory challenges here.
It is to be noted in connection with this issue that
there were two pre-trial conferences. At the preliminary
pre-trial conference, held on December 4, 1981, the minutes
of the District Court, which are included as an appendix to
appellant's brief, state tha-t each defendant appeared to be
adverse and. would be all-owed four peremptory challenges. The
minutes further state that the plaintiff objected to this and
"will brief it if necessary." No brief on the subject was
filed.
What we have had to say about the pre-trial conference
and the lack of objection of the plaintiff to the grant of
the peremptory challenges occurred at the second pre-trial
conference on October 13, 1982, one week before actual trial
commenced.
11.
Instructional Error
Plaintiff Gee subdivides this issue in his brief,
claiming error in the instructions given or refused with
respect to negligence, and again with respect to strict
liability in tort.
A. Instructions relating to negligence.
The court, at Gee's request, gave a general instruction
on negligence, to the effect that every person is responsible
for injury to the person or property of another caused by the
want of ordinary care or skill (see section 27-1-701, MCA),
and further stating that negligence means want of ordinary
care or skill which exists when there is a failure to do that
which a reasonable and prudent person would have ordinarily
done under the circumstances of the situation, or doing what
such person under the existing circumstances would not have
done. See Stocking v. Johnson Flying Service (1963), 143
Mont. 61, 387 P.2d 312 ; Ahlquist v. Mulvaney Rea.lty Company
(1944), 116 Mont. 6, 152 P.2d 137.
Plaintiff Gee claims error in the court's refusal of two
further instructions offered by him:
"Instruction No. 43
 "The manufacturer of a product that is reasonably
certain to be dangerous if negl-igently made, has a
duty to exercise reasonable care in the design,
manufacture, testing and inspection of any product
and in the testing and inspection of any component
parts made by another so that the product may be
safely used in a manner and for a purpose for which
it was made.
A fa-ilureto fulfill that duty is negligence."

"Instruction No. 44
"You are instructed that a manufacturer of a
product that is rea-sonably certain to be dangerous
if negligently made has a dut.y to exercise
reasonable care in the design, testing, and
inspection and manufacture of the product so that
the product may be safely used in a manner and for
the purpose it wa.s made.
failure fulfill that duty negligence."

The District Court refused the instructions on the
grounds that they were inapplicable to this case since
manufacturing not involved.. The District Court was
clearly correct.
Gee also argues that under his theory of the case, he
was entitled to further instructions delineating the various
contractors' duties and especially requiring a higher
standard of care than that normally chargeable to a lay
person. "Without these additional instructions," says Gee,
"it is impossible to determine if the jury applied a
different or lower standard of care for the contractors." Gee
argues that it would clearly be error if all the defendants
were judged by the same standard of care to which the
defendant Busch (the former premises owner) was held, because
Gee claims a separate and higher duty of care was owed to him
by the defendant contractors.
In making this argument, Gee relies upon Williams v.
Montana National Bank of Rozeman (1975), 167 Mont. 24, 5 3 4
P.2d 1247. In Willia.ms, a husba.nd sued the bank in a
situation where the plaintiff's wife had signed a check to an
unidentified man for $1.26. The stranger made out the check
in the wife's presence, leaving room enough on the lines of
the check so that later he could raise the check from $1.26
to $6,841.26. No payee's name was on the check when the wife
signed it for the stranger. The stranger took the check to
the bank and received payment for the raised amount. The
husband sued the bank, and the court submitted the case to
the jury on the theory of ordinary negligence. This Court
reversed, saying that the bank was entitled to have the jury
instructed upon the provisions of the Uniform Commercial
Code, as to reasonable commercial standards in the processing
of checks. The applicable commercial standards in the
Uniform Commercial Code are not specified in Williams, but we
note that section 30-4-103(3), MCA, provides that action or
non-action by a hank approved by the Uniform Commercial Code
or pursuant to the Federal Reserve Regulations or "operating
letters" constitutes the exercise of ordinary care.
Likewise, action or non-action by a bank consistent with
clearinghouse rules or with general banking usage not
disapproved by the Uniform Commercial Code, constitutes
ordinary care. Thus, there are specific statutes relating to
customs, standards, usages and rules which must be considered
in determining ordinary care used by banks in cases such as
Williams.
Unlike Williams, there is in this case no applicable
standards which would relate by statute or regulation to the
defendants, or any of them, in their duties regarding the
installation of the dumbwaiter. There is no statutory or
other basis that we can determine that would require that the
jury be instructed to apply a higher Level of care to
independent contractors than to the landowner, Busch. Indeed
the standard of care applicable to such entities could not be
different from what the court instructed, tha.t is, each party
had the duty of exercising such ordinary care as reasonably
prudent persons would exercise in the same or similar
circumstances. Beyond the instructions which Gee offered,
which we have set forth above and which are clearly
inapplicable here, Gee offered no further instructions
relating to the duty of care by any of the other defendants
in their respective fields. The reason is obvious: there
were no statutes or rules applicable to such manufacturers at
the time of the construction here. The District Court may
not be put in error on such grounds.
Gee contends that the District Court gave two other
instructions which he claims are error. One was Instruction
No. 10:
"A person who sells land is not subject to
liability for physical harm caused to the buyer or
others while on the land after the buyer has taken
possession, by any dangerous condition, whether
natural or artificial, which existed at the time
that the buyer took possession."

Gee also objects to Instruction No. 11:
"A contractee-owner is not liable for the acts of
a.n independent contractor or his servants. The
owner's right to oversee that the work of various
independent contractors proceeds satisfactorily
imposes on the owner no duty to insure that any
contractor's work is done in compliance with all
the various safety codes."

Gee also contends that Instruction No. ll conflicts with
the court's Instruction No. 8, which stated:
"Ordinarily, one who employs an independent
contra.ctor is not liable for the acts or omissions
of such contractor or its employees. However, one
who employs an independent contractor to do work
 which the employer should recognize as likely to
create during its progress a peculiar risk of
bodily harm to others unless special precautions
are taken, is subject to liability for bodily harm
proximately caused to them by the failure of the
contractor to exercise reasonable care to take such
precautions."

Court's Instruction No. 8 is by its terms limited to

dangerous situations existing during the progress of the
construction.. There is no conflict therefore between court's
Instruction No. 8 and court's Instruction No. 11. ~ee's
further objections to the court's Instruction No. 10, now
expressed, are based upon Restatement of Torts, 2nd., S $
410-415. In any event, however, these objections were not
raised at the time of the settlement of the instructions and
so may not be considered by us on appeal. Richland County v.
Anderson (1955), 129 Mont. 559, 574, 291 P.2d 267, 275.
Gee contends that the giving of the Instructions Nos. 10
and 11 amounted to a peremptory charge to the jury to find
for the defendant Busch. We however find no error arising
out of these instructions on the ground of objection given at
the settlement of instructions, that the subject was covered
by court's Instruction No. 8, above. The District Court did
not err in overruling that objection.
C
B. Instructions relating to strict liability in tort.
Gee contends that the court erred in failing to give his
offered Instruction No. 24, as follows:
"You may find that the dumbwaiter was defective and
unreasonably dangerous if you find that it was not
functioning as intended at the time of the
accident, and the failure of the dumbwaiter to
function as intended was a proximate cause of the
plaintiff's injury."

Gee contends he was entitled to this instruction under
Brown v. North American Manufacturing Company (1978), 176
Mont. 98, 576 P.2d 71.1. In Brown we held that patent as well
as latent design defects could impose strict liability on a
manufacturer under certain cond-itions. Gee's contention here
is that the al-leged design defect was latent, so as to
entitle him to the instruction. Offered Instruction No. 24
was obviously too broadly stated, end inapplicable to the
facts in this case. The dumbwaiter was jammed because of the
interposition of the chef's jacket. The thrust of Gee's case
was that the design of the doors to the dumbwaiter shaft
improperly permitted a chef's jacket to enter and get caught
between the floor of the dumbwaiter and the sill.
Instruction No. 24 does not focus on that issue in any
manner.
Under this heading, Gee also claims error in the refusal
of the District Court to give the following instruction:
"When a person's lawful employment requires that he
work in a dangerous location or a place that
involves unusual possibiliti-es of injury, or
requires that in the line of his duty he take risks
which ordinarily a reasonably prudent person would
avoid, the necessities of such a situation, insofar
as to limit the caution he can take for his own
safety, lessen the amount of caution required of
him by law in the exercise of ordinary care."

There was no support in the record for this instruction.
There is no evidence tha.t Gee's employment required that he
take risks which ordinarily a reasonably prudent person would
avoid. Other evidence raised a fact question fox the jury as
to whether Gee had been instructed not to enter upon the
dumbwaiter.
Gee al.so raises under this heading, the refusal of the
court to give his proposed. Instruction No. 27:
"You are instructed that compliance with a relevant
industry standard at the time of construction of
the dumbwaiter at the Cartwheel Inn Restaurant does
not prevent a finding of defectiveness or
 negligence where a skillful and prudent contractor
would take additional precautions."

Again, the instruction is unsupported in the evidence.
For the reasons foregoing, we find no instructional
error in this case on the grounds raised by the plaintiff,
Gee.

Buildins Code Exhibits
Gee claims error in the admission to evidence by the
court of defendant Egbert's exhibits A and B, copies of the
1967 and 1979 Building Codes respectively.
Exhibit A, the 1967 Building Cod-e, contains no mention
of or reference to an elevator code, though one was in
existence at the time (Exhibit 15). Exhibit R , the 1979
Building Code, did contain the National Elevator Code.
Testimony in the case indicated that at the time of
construction here, there was no statute or other legal
regulation making compliance with the elevator code
mandatory. Such compliance became mandatory after the
construction of the dumbwaiter, and the mandatory necessity
of compliance is reflected in the 1979 Building Code.
The objection nade at the time of the admission to
evidence of Egbert's exhibits A and B was that the exhibits
were not relevant. The court overruled the objection. It
was clearly relevant for the jury to understand that in 1971,
when the dumbwaiter was constructed, the building code in
effect at the time did not contain the elevator code, which
would have covered dumbwaiters. No error occurred here.
IV.

Punitive Damages
 Gee assigns error to the action of the District Court in
not submitting to the jury his claim for punitive damages
against the defendants.
The court acted at the close of the plaintiff 's case in
chief. At that point the evidence indicated that a Mr.
Merry, of Yellowstone Hydraulics, Inc., recalled discussing
safety devices with Mr. Westlake of Midwest Welding, Inc.
Merry had no contact with Egbert, the contractor. It would
have been Westlake who would have relayed any information
about door construction on dumbwaiters to Merry or to Egbert.
Westlake could not recall what Merry had said to him about
safety devices on the dumbwaiter, and Egbert did not consult
with anyone other than Midwest Welding, Inc., about the
construction of elevators at any time here in question. Gee
contends that these facts presented a question to the jury as
to whether Egbert and Midwest Welding, Inc. were guilty of
actual or presumed malice as a basis for punitive damages.
A jury may give damages for the sake of example and by
way of punishment if the jury finds that the defendant or
defendants have been guilty of oppression, fraud, or actual
or presumed malice, in actions for tort, in addition to the
actual damages. Section 27-1-221, MCA.
Exemplary damages may be awarded in cases where there is
no direct evidence of fraud or malice or gross negligence.
They may be allowed when there is evidence of such
recklessness and wanton disregard of another's rights that
malice and evil intent will be inferred. If a defendant is
grossly and wantonly reckless in exposing others to dangers,
the law holds him to have intended the natural consequences
of his act, and treats him as guilty of a willful. wrong.
Malice in law is implied when the defendant's conduct is
unjustifiable. Dvorak v. Huntley Project Irrigation District
(1981), 196 Mont. 167, 174, 639 P . 2 d 62, 66.

It was apparently one of plaintiff's theories in this
case that because of the construction of the hatch doors on
the dumbwaiter, it was possible for the chef's jacket to
become lodged so as to stop the operation of the dumbwaiter.
Evidence was introduced that hatch doors should be so
constructed that they do not open while the car is moving.
This should be accomplished by the use of safety devices and
interlocks that permit the opening of the hatch doors only
when the dumbwaiter itself has come to a stop. Levelling
switches should control the stopping of the dumbwaiter at the
appropriate floor level. In this case, the hatch door was
operated by a lever device that caused the doors to open as
the dumbwaiter approached the floor level.
When we look at the evidence that is best for the
plaintiff, it fails to establish a basis for punitive damages
against any of the defendants. The elevator industry had
promulgated a safety code for elevator doors including
dumbwaiters in 1965. Such standards were not part of an
enforceable building code when this dumbwaiter was
const.ructed. It is not shown that these contractors were
familiar with such industry standards. The dumbwaiter was
not constructed to carry humans. The record is bare that the
defendants, or any of them, through their employees or
otherwise, knew of elevator standards that require interlocks
on the doors, or that the defendants wantonly or purposely
disregarded the existence of such standards. Nothing in the
testimony indicates that any of the defendants could have
acted to remedy the installation based upon knowledge or
information that such injuries might occur. In other words,
there is no basis upon which to imply malice or wantonness on
the part of any of the defendants. The District Court was
correct in taking from the jury the consideration of punitive
damages. Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122,
580 P.2d 915.
v.
Evidence To Support The Jury Verdict
Counsel contends that the verdict here is against the
evidence because substantial. credible evidence existed to
support a verdict for the plaintiff.
Gee points out that the uncontradicted opinions of Mr.
Merry of Yellowstone Hydraulics, Inc. and witness Norman
Priest, the two experts knowledgeable in the area of
dumbwaiters and elevators, indicated that there was a failure
by the defendants to use due care, as proper doors and safety
devices were not incorporated in the dumbwaiter. Gee
contends these failures rendered the dumbwaiter defective and
unreasonably dangerous, and that the jury disregarded this
evidence.
The District Court submitted to the jury a special
verdict in which they were asked, "Were the defendants guilty
of negligence which was the proximate cause of the claimed
damages?" The jury answered as to Everett Egbert, 2 yes and
10 no; as to Midwest Welding, Inc., 1 yes and 11 no; as to
Yellowstone Hydraulics, Inc., 12 no; and as to Larry Busch,
12 no.
The testimony ofthe experts respecting proper doors and
safety devices for a dumbwaiter, standing alone, was
insufficient to justify a verdict against any of the
defendants for lack of proximate cause. A further question
propounded to the jury was whether any evidence of negligence
proximately caused the injuries sustained by plaintiff. The
jury found that it did not in each case.
The jury may believe the testimony of one witness and
disbelieve that of another or any number of others, and the
determination of the jury in that regard is final. Batchoff
v. Craney (1946), 119 Mont. 157, 172 P.2d 308. The
credibility of witnesses is generally a matter for
determination by the jury under proper instructions from the
court. Cottrell v. Weinheimer (196O), 137 Mont. 347, 351
P.2d 543, 90 A.L.R.2d 1339. It is not the function of this
appel.la.te court to overturn decisions on findings of fact
made by a competent jury properly instructed on how to view
the evidence. We find no error here.
VI .
Judicial Conduct
Rere counsel for Gee contends that the trial judge made
numerous remarks critical of the pl-aintiff's case or
plaintiff's presentation of his case, the cumulative effect
of which prejudiced the jury a.gainst pl-aintiff' s cause a.nd
his counsel.
It may be that the trial judge interrupted too
frequently in this case. The over-weighing factor, however,
is that counsel made no attempt during the trial to alert th.e
court that it might be subjecting itself to such an a-rgument
on appeal.. The way to preserve such an issue for appeal, as
the cases relied upon by the defendants state, is to object
to the court's actions and to ask for a mistrial based upon
improper judicial conduct. Then the trial court itself will
have an opportunity to weigh its conduct and to determine, at
least, whether the motion should be granted. In fairness
this should be done in all such cases. Otherwise, though we
do not find so here, it can be argued that the lawyer who is
a victim of judicial misconduct is gambling on a win, and
keeping the conduct in reserve in case he needs a point for
appeal. See Evangeline v. Billings Cycle Center (Mont.
1981), 626 P.2d 841, 38 St.Rep. 550.
Because proper objection or motion for mistrial was not
made in the District Court, we find no error on this ground
of appeal.
VII.

Taxing of Costs
The final issue raised by Gee is that the court erred in
taxing costs against him in favor of the defendants. His
objectioi~ is to the allowance of the costs of depositions
taken pre-trial. Some of the depositions were used in the
trial.
Counsel for respondent Egbert concedes on appeal, as he
did at the hearing on the motion to retax costs, that his
cost bill should be stricken.
Our examination of record indicates that the depositions
taken in this cause were in a3.1 cases for the purpose and
convenience of the deposing party in marshaling their
respective cases. Therefore the costs for such depositions
must be borne by the deposing party. Lovely v. Eurroughs
Corporation 119741, 165 Mont. 209, 527 P.2d 557. Costs may
be allowed against the losing party by the District Court
only for such depositions as were used as evidence at the
trial, or for purposes of impeachment during the trial. The
costs in this case should be retaxed so that plaintiff is
responsible only for such depositions as were used during the
trial.
 CONCLUSION
The judgment of the District Court is affirmed. The

cause is remanded to the District Court for the purpose of
retaxing costs in accordance with this opinion. No costs
shall be awarded to the respondent, Everett Egbert.

We Concur:

a&,!$.
Chief Justice
vjg%kf