No. 88-138
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
RONALD R. STEWART and LYDIA M. STEWART,
Plaintiffs and Appellants,
-vs-
BILL FISHER,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif Erickson, J u d a e presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Sullivan argued; McGar~~ey,
Heherlinq, Sullivan
and McGarvey, Kalispell, Montana
For Respondent:
I. James Heckathorn arqued; Murphy, Robinson, Heckathorn
and Phi .l.lips,Kalispel.!_, Montana
I-
rZ
Ln 3 submitted: October 12, 1988
0 0
0 2
t!Jl" Decided: January 25, 1989
.I
- 2
<,u
. I'C
LL a do.z
z
=
3
LA, ,
2
z -
.
Q3
C3
%
0
"2
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
The mobile home owned by Stewarts, the plaintiffs, fell
off its foundation blocks approximately one week after
Fisher, the defendant, had set up the mobile home in a new
location. The jury empaneled in the District Court of the
Eleventh Judicial District, Flathead County, returned a
verdict on November 25, 1987, finding in favor of Fisher.
The District Court denied. Stewarts' motion for a judgment
notwithstanding the verdict or, in the alternative, a new
trial. Stewarts appeal. We affirm the District Court.
The issues raised on appeal are:
(1) Whether the District Court improperly failed to
instruct the jury on the legal standards associated with an
"act of nature" defense.
(2) Whether the District Court improperly failed to
instruct the jury that more than one factor may cause an
injury and that the defendant may not avoid liability by
claiming that some other factor helped cause the injury.
Whether the plaintiffs were entitled, as a matter
(3)
of law, to judgment on the issue of defendant's liability for
negligence, and whether substantial credible evidence
supports the jury verdict.
(4) Whether the District Court erred in not granting
the plaintiffs' motion in limine which sought to preclude the
defendant's mention at trial of z collateral source of
insurance.
In mid-March of 1985, Lydia Stewart decided to relocate
her mobile home. She contacted Rill Fisher, a professional
contractor who sets up and services these types of dwellings.
Fisher agreed to do the work, which included leveling,
blocking, and skirting the mobile home at its new location.
On March 30, 1985, Fisher transported the Stewarts'
mobile home to its new location. Before setting the home up,
Fisher had Lydia Stewart ask the manager of the mobile home
park to plow the lot because a layer of snow and ice was in
the area where the mobile home was to be placed. After the
area was plowed, Fisher testified that among the mixed dirt
and gravel, ice spots existed. Nonetheless, Fisher proceeded
to setup the mobile home on the new location. Fisher
testified that he used one more set of blocks than usual
because the lot sloped and a waterbed was to be placed in the
back of the home.
Fisher and his employee worked on blocking and leveling
until 5:00 p.m. on March 30, 1985. An understanding existed
between Lydia Stewart and Fisher that Fisher would return to
re-level the home and put the skirting up, however, the
testimony differs as to whether Fisher would return on his
own or whether he would return when Lydia Stewart called him
to inform him that the snow and ice was gone from the yard.
Eight days later, on April 7, 1985, at approximately
11:30 p.m., the Stewarts' mobile home fell off its foundation
blocks. The mobile home itself sustained major damage and
was later sold to a local wrecking yard for salvage value.
Likewise, a large amount of the Stewarts' personal property
inside the mobile home suffered either serious damage or was
destroyed. In addition, following the accident, Lydia
Stewart, who was alone inside the mobile home when it fell-,
began to suffer from a psychological. disorder requiring
psychiatric treatment and multiple hospitalizations.
The first issue raised on appeal is whether the
District Court improperly failed to instruct the jury on the
legal standards associated with an "act of nature" defense.
At trial, Stewarts asserted that Fisher was negligent in
his duty of setting up their mobile home. The issue to be
determined in such an action is "whether a reasonably prudent
and skillful contractor would have acted as defendant did."
Bush v. Albert D. Wardell Contractor, Inc. (1974), 165 Mont.
312, 317, 528 P.2d 215, 217-18. The burden of proving that a
defendant breached his duty by not exercising reasonable care
is on the plaintiffs. See, e.g., State - -
ex rel. Burlington
Northern, Inc. v. District Court of First Judicial Dist.
(1972), 159 Mont. 295, 301, 496 P.2d 1152, 1155-56.
Stewarts then argue on appeal that Fisher, instead of
simply denying negligence, relied upon an "act of nature"
defense when asserting that he was not liable for their
mobile home falling off its foundation blocks. In
particular, Stewarts point towards Fisher's testimony where
he stated, for example, that "unstable ground" was the cause
of the mobile home falling from its foundation blocks. The
Stewarts therefore contend that the District Court erred bv
not instructing the jury on the legal standards that a
defendant must meet before asserting this defense. We
disagree. The case before the jury was simply whether Fisher
acted as a reasonably prudent and skillful contractor when
setting up the Stewarts' mobile home under the winter weather
conditions. Merely because ice was present when Fisher set
up the mobile home, does not necessarily mean that an "act of
nature" or "act of God" defense is being raised. We conclude
that Fisher did not raise such a defense nor do the facts
warrant the use of it. We hold that in the present case, the
District Court did not err by refusing to instruct the jury
on the legal standards associated with an "act of nature"
defense.
The second issue raised on appeal is whether the
District Court improperly failed to instruct the jury that
more than one factor may cause an injury and that the
defendant may not avoid liability by claiming that some other
factor helped cause the injury.
Stewarts argue that if the damage to their mobile home
was the result of two concurring causes, one being the
negligence of the defendant and the other being an act of
nature, then the District Court committed reversible error by
not instructing the jury on multiple factor causation. Tn
light of our holding that an act of nature defense is not
applicable in this case we hold that the District Court did
not err when it refused Stewarts' proposed instruction on
multiple factor causation.
The third issue raised on appeal is whether the
plaintiffs were entitled, as a matter of law, to judgment on
the issue of defendant's liability for negligence, and
whether substantial credible evidence supports the jury
verdict.
When substantial evidence exists to support the jury
verdict, then this Court will sustain the District Court's
action denying a motion for directed verdict. Gunnels v .
Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492,
1495. When determining whether substantial evidence exists
to support the verdict, this Court reviews 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. The evidence may be inherently weak and still be
considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep.
at 1176, Local Union No. 400 of Intern. Union v. Bosh ( ~ o n t .
1986), 715 P.2d 36, 42, 43 St.Rep. 388, 394. In addition,
when conflicting evidence exists, the credibility and weight
given to the conflicting evidence is within the province of
the jury. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176.
In the present case, the jury had to determine whether
a defendant acted as a reasonably prudent and skillful
contractor. The jury had available to it all the evidence
presented at trial, including the testimony of three
professionals regarding the proper standards and procedures
for setting up mobile homes under winter conditions; the
procedures Fisher used in setting up Stewarts' mobile home;
and the prevailing weather conditions. After being presented
with the evidence at trial, the jury found in favor of
Fisher.
The Stewarts argue that the uncontradicted testimony
establishes that at least a portion of the lot onto which the
Stewarts' mobile home was moved was still covered with ice
after it had been plowed and that Fisher was aware of this
fact; that it is a violation of accepted standards and
procedures to set foundation blocks on top of ice rather than
clearing out the ice and setting the foundation block on the
ground; and that at least two of the foundation blocks were
set on ice. However, testimony was also presented that the
mobile home would not have fallen off its found-ation blocks
when only two of the foundation blocks were set on Ice. The
evidence also establishes that the lot where the mobile home
was to be placed was not covered entirely with ice, but that
the ice was only located in spots. Thus, the jury could have
determined that only two of the foundation blocks were set on
ice and that therefore Fisher acted as a reasonably prudent
and skillful contractor when only two of the nine foundation
blocks were placed on ice.
As we have previously held, the evidence may he
inherently weak and still be considered substantial and the
credibility and weight given to conflicting evidence is
within the jury's province. Wheeler, 757 P.2d at 347, 45
St.Rep. at 1176. We therefore hold that substantial credible
evidence exists to support the jury verdict and that
therefore the Stewarts were not entitled, as a matter of law,
to judgment on the issue of defendant's liability for
negligence.
The last issue raised on appeal is whether the District
Court erred in not granting the plaintiffs' motion in limine
which sought to preclude the defendant's mention at trial of
a collateral source of insurance.
The Stewarts' presented the court with a motion in
limine during pretrial conference, seeking to preclude the
defendant's mention at trial of a collateral source of
insurance. The District Court reserved ruling on this
motion. The Stewarts did not request a ruling on this motion
before the case went to trial, but more importantly, the
Stewarts did not object, nor present the District Court with
any motions for mistrial or to strike the alleged testimony
when insurance was first mentioned by the defendant at the
trial. Failure to object or request corrective action after
the mentioning of insurance by the defendant constitutes a
waiver of objection on this issue. Rasmussen v. Sihert
(1969), 153 Mont. 286, 295, 456 P.2d 835, 840.
We therefore hold that this issue is not properly before
this Court as a result of the Stewarts' failure to object at
the time when insurance was first mentioned during the trial.
Affirmed.
JJLL+L&:
Justice
We Concur: