No. 91-304
IN THE SUPREME COURT OF THE STATE OF MONTANA
RAVALLI COUNTY ELECTRIC CO-OPERATIVE, INC. and FEDERATED RURAL
ELECTRIC INSURANCE CORPORATION,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert B. Brown, Attorney at Law, Stevensville,
Montana.
For Respondent:
Joe Seifert; Gough, Shanahan, Johnson & Waterman,
Helena, Montana.
Submitted on briefs: September 19, 1991
Filed:
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff Darwin Titeca (Titeca) brought a negligence action
against Ravalli County Electric Co-operative, Inc. (Ravalli
Electric) in Justice Court. Titeca prevailed in justice court, and
Ravalli Electric appealed this ruling to the Fourth Judicial
District Court, Ravalli County. In that trial de novo, a jury
found Ravalli Electric was not negligent. From this judgment
Titeca appeals. We affirm.
The issues raised by Titeca are restated as follows:
1. Was it error for the District Court to prohibit the
plaintiff from referring to the prior trial in justice court?
2. Did the District Court commit reversible error by refusing
Titeca's proposed jury instruction?
Titeca's cow was electrocuted by a live wire inside an
irrigation pump house. Ravalli Electric supplied electricity to
the pump house located on 72 acres of pasture land leased by
Titeca.
Two separate transformers supplied electricity to the
pumphouse. The first transformer supplied electricity to the pump
and motor, while the second transformer supplied electricity to a
disconnect panel. In the early 1980is,Jay Knab (Knab), the prior
owner, failed to pay his electric bill and Ravalli Electric
disconnected the transformer supplying energy to the pump and the
motor. Ravalli Electric did not disconnect the second transformer
until after Titeca's cow was electrocuted by the wire.
Parties presented evidence that after Ravalli Electric
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disconnected the first transformer, Knab removed the pump, the
motor and the disconnect panel from the pump house, Remaining
wires that previously supplied the disconnect panel with
electricity were still energized. Testimony indicated Titeca's cow
was electrocuted by an energized wire left detached after Knab
removed the disconnect panel from the pump house.
Was it error for the District Court to prohibit the plaintiff
from referring to the prior trial in justice court?
Titeca contends'that by prohibiting him from referring to the
trial in justice court, the District Court impaired the interaction
between himself and his witnesses. Further Titeca argues that
referring to the prior testimony as "prior sworn statements" could
have undermined the importance of these statements to the jury.
Ravalli Electric contends the prior trial had no probative
value in the District Court proceeding. It states that under § 25-
33-301(1), MCA, an appeal from justice court must be tried anew in
district court; therefore, the trial court did not abuse its
discretion by prohibiting Titeca from referring to the prior trial.
The admissibility of evidence is left to the discretion of the
trial court. In Zugg v. Ramage (l989), 239 Mont. 292, 779 P.2d
913, this Court stated:
Questions of admissibility of evidence are left largely
to the discretion of the trial court which will be
overturned only in cases of manifest abuse of discretion.
[Citations omitted.] Zuqq, 779 P.2d at 916.
The trial court did not abuse its discretion by excluding non-
probative testimony. Further, Titeca fails to show the ruling
prejudiced his case. Without providing specific examples of how
this exclusion Ifimpaired interactiont' between himself and his
witnesses or caused the jury to draw "erroneous conclusions .- .
concerning the importance of the testimony" we refuse to disturb
the District Court's ruling on this issue.
We conclude that the District Court did not abuse its
discretion and h o l d the District C o u r t correctly prohibited the
plaintiff from referring to the prior trial in justice court.
I1
Did the District Court commit reversible error by refusing
Titecats proposed jury instruction?
Titecats proposed jury instruction # 5 stated:
You are instructed that a company engaged in furnishing
electricity to consumers is without authority to continue
the flow of electricity beyond a reasonable time to do so
after the termination of a contractual relationship.
Appellant relies on Pacific Brick v. So. Cal. Edison, ( C a l . App.
1941), 116 P.2d 131, as authority for the above instruction. The
court refused this instruction on the grounds that Titeca
presented no evidence to the jury that Ravalli Electric ever
received a request to terminate the electricity supply.
We agree with the District Court and hold that the District
Court did not commit reversible error by refusing Titeca's proposed
jury instruction.
We affirm and award defendant Ravalli Electric its costs on
appeal.
P u r s u a n t to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
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precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
We Concur: d
-/,,_ [-yh
C ief Justice
November 5, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
ROBERT B. BROWN
Attorney at Law
3556 Baldwin Road
Stevensville. MT 59870
Joe Seifert, Esq.
GOUGH, SHANAHAN, JOHNSON & WATERMAN
P.O. Box 1715
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
MONTANA
BY:
Deputy