NO. 8 7 - 4 9 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
DONALD AND LOIS STOUT, husband
and wife, and MAX AND MARIE
McGRANN, husband and wife,
Plaintiffs and Respondents,
-vs-
THE MONTANA POWER COMPANY,
a Montana corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick T. Fleming, Butte, Montana
For Respondent :
R. Keith Strong; Church, Harris, Johnson & Williams,
Great Falls, Montana
John R. Christensen, Stanford, Montana
Submitted on Briefs: July 21, 1 9 8 8
Decided: October 17, 1988
. Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The Montana Power Company, defendant, appeals the jury
verdict and decision of the District Court of the Tenth
Judicial District, Fergus County, denying defendant's motions
for a directed verdict and for a judgment notwithstanding the
jury verdict. We affirm.
Montana Power Company raises the following three issues
on appeal:
1. Whether the District Court erred by denying
defendant's motion for a directed verdict after the close of
plaintiffs' cases.
2. Whether substantial evidence exists to support the
jury verdict, finding defendant negligent in constructing,
maintaining and inspecting the power equipment and service
lines connected to Stouts' building.
3. Whether the District Court erred by denying
defendant's motion for judgment notwithstanding the jury
verdict.
Donald and Lois Stout owned a building in Coffee Creek,
Montana. They leased part of the building to Max and Marie
McGrann, who used a portion of the building as a residence
and another portion to operate their meat cutting business.
Stouts reserved a portion of the building to use as a storage
facility and post office. Montana Power Company owned the
power equipment and service lines that delivered electricity
to Stouts' building.
On April 2, 1985, a fire completely destroyed Stouts'
building and its contents. Stouts filed a lawsuit on June 4,
1985 in the District Court of the Tenth Judicial District,
Fergus County, alleging that defendant. failed to perform
properly its duty of inspecting and maintaining its power
equipment and service lines connected to their building in
Coffee Creek and that the failure proximately caused the fire
that destroyed their building, causing them financial loss.
Shortly thereafter, McGranns filed a similar lawsuit in the
same action. The District Court consolidated Stouts' and
McGranns' lawsuits for trial.
The parties tried the lawsuits before a jury beginning
September 28, 1987 and continuing through October 1, 1987, at
which time Stouts and McGranns rested. Defendant moved for a
motion for a directed verdict as to its alleged negligence.
The District Court found that sufficient facts existed to
permit the cases to go to the jury and denied the motion.
Defendant rested without presenting any additional evidence.
The jury returned a verdict on October 1, 1987 finding
defendant negligent in constructing, maintaining and
inspecting the power equipment and service lines connected to
Stouts' building. On October 8, 1987, defendant moved for a
judgment in its favor notwithstanding the verdict. The
District Court denied the motion and defendant then appealed
to this Court.
The first issue presented to this Court is whether the
District Court erred by denying defendant's motion for a
directed verdict after the close of plaintiffs' cases.
The District Court, as well as this Court, must view a
motion for a directed verdict in a light most favorable to
the nonmoving party. Britton v. Farmers Insurance Group
(Mont. 1986), 721 P.2d 303, 317, 43 St.Rep. 641, 656; Jacques
v. Montana Nat'l Guard (1982), 199 Mont. 493, 504, 649 P.2d
1319, 1325; Weber v. Blue Cross of Montana (19821, 196 Mont.
454, 462, 643 P.2d 198, 202. The motion is properly granted
only if no evidence exists that would warrant submission to
the jury. A directed verdict is not proper, therefore, when
the inferences and conclusions drawn from the evidence
presented could differ among reasonable people. Britton, 721
P.2d at 317, 43 St.Rep. at 656; Jacques, 199 Mont. at 504-05,
649 P.2d at 1325; Weber, 196 Mont. at 462-63, 643 P.2d at
202. The District Court found that sufficient evidence
existed that was within the province of the jury. We agree.
At the trial level, the primary issue presented was
whether defendant was negligent in maintaining and inspecting
the power equipment and service lines connected to Stouts'
building. In denying the motion for a directed verdict, the
District Court relied on Professor Bernstein's expert opinion
as to the cause of the fire; Marie McGrann's testimony that
on the day of the fire she saw a loose wire; and photographs
of other service lines in the Coffee Creek area that are
maintained by defendant. As the District Court properly
noted, a jury was impaneled and when geniune questions of
facts exist it is the jury's function to determine the facts.
In this case, the jury was the proper body to determine the
weight of Professor Bernstein's expert opinion; Marie
McGrann's testimony; and the photographs of other service
lines in the Coffee Creek area that appeared poorly
maintained. The inferences and conclusions drawn from this
evidence could differ among reasonable people, as evident by
the jury's inferences and conclusions, which resulted in a
verdict for Stouts and McGranns, versus defendant's assertion
that no evidence whatsoever exists that would establish
negligence on their part.
When requested to direct a verdict, a court must
exercise the "greatest self-restraint in interfering with the
constitutionally mandated processes of jury decision. The
message is to do so only in the clearest of cases. . . ."
Jacques, 199 Mont. at 504, 649 P.2d at 1325 (quoting
Karczewski v. Ford Motor Co. (N.D. Ind. 19741, 382 F.Supp.
1346, 1348, aff'd, 515 F.2d 511 (7th Cir. 1975)). After
viewing the motion in a light most favorable to Stouts and
McGranns, we affirm the District Court's finding that
sufficient evidence existed to deny defendant's motion for a
directed verdict after the close of plaintiffs' cases.
The second issue raised on appeal is whether substantial
evidence exists to support the jury verdict finding defendant
negligent in constructing, maintaining and inspecting the
power equipment and service lines connected to Stouts'
building.
When presented with this issue, the law requires this
Court to review the evidence in a light most favorable to the
prevailing party. Wheeler v. City of Bozeman (Mont. 1988) ,
757 P.2d 345, 347, 45 St.Rep. 1173, 1176; Kukuchka v. Ziemet
(Mont. 1985), 710 P.2d 1361, 1363, 42 St.Rep. 1916, 1917;
Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep.
1492, 1495. The evidence may be inherently weak and still he
considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep.
at 1176; Gunnels, 633 P.2d at 1191, 38 St.Rep. at 1495.
The record shows that Max and Marie McGrann testified
that just prior to the fire their lights were flickering and
their radio was making static. Lois Stout also testified
that the lights were flickering just before the fire started.
Marlin Jegtvig, who hauls away meat by-products from
McGranns' business once a week testified that on the day of
the fire he made his routine stop at McGranns' and witnessed
arcing, a sustained luminous discharge of electricity across
a gap, within the joints of the tin siding of the building.
He informed Max and Marie McGrann, who both testified that
they also observed the arcing. Marie McGrann then testified
that she promptly called Montana Power Company so as to have
the power turned off and that she had also noticed a loose
swinging wire when she observed the arcing. Ron Brinkman, a
member of the Coffee Creek Volunteer Fire Department,
testified that he also observed a loose wire on the top roof
knob, after Dick Ronish, another person at the scene of the
fire, pointed it out to him.
The record also shows that Theodore Bernstein, a
professor of electrical and computer engineering and who is
frequently called to assess the cause of a fire, testified
that after reading statements and depositions from people at
the fire, studying photographs of Montana Power Company's
service lines in the Coffee Creek area shortly after the
fire, photographs of the equipment that was removed from the
fire, and photographs of the fire scene, that in his expert
opinion the fire began when the upper roof knob pulled loose
from the building and swung into the tin siding. He further
testified that every time the roof knob would hit the tin
siding the electricity would go from the pole to the siding
via the wire and roof knob, and then to the ground. He
testified that the temperature of the arcs range from two to
four thousand degrees, or even higher. The fire ignited, in
his opinion, when the electricity would cross over flammable
materials in the building, such as wooden slats or beams.
Defendant argues that Professor Bernstein's opinion
regarding the cause of the fire was wrong because his opinion
was based on a roof knob coming loose, and Ronald Brinkman, a
volunteer fireman at the scene of the fire, testified that he
did not see any loose roof knobs. Professor Bernstein also
testified, however, that a roof knob from Stouts' building
had signs of arcing, which would only occur if the knob had
swung loose and hit the tin siding. When conflicting
evidence exist, the credibility and weight given to the
conflicting evidence is within the jury's province. Wheeler,
757 P.2d at 347, 45 St.Rep. at 1176; Mountain West Farm
Bureau Mutual Insurance Co. v. Girton (Mont. 1985) , 697 P.2d
1362, 1363, 42 St.Rep. 500, 501. This Court will not reweigh
conflicting evidence on appeal. We therefore hold that
substantial evidence existed to support the jury verdict.
The last issue raised on appeal is whether the District
Court erred by denying defendant's motion for judgment
notwithstanding the jury verdict.
This motion, like a motion for a directed verdict, is
properly granted only when no evidence exists to support a
jury verdict. Wilkerson v. School Dist. No. 15, Glacier Cty.
(Mont. 1985), 700 P.2d 617, 622, 42 St.Rep. 745, 750-51.
Gunlock v. Western Equipment Co. (Mont. 1985), 710 P.2d 714,
716, 42 St.Rep. 1882, 1884-85. In light of our previous
discussion, we hold that the District Court properly denied
defendant's motion for a judgment notwithstanding the
verdict.
Affirmed. n
We Concur: