McJunkin v. Kaufman & Broad Home Systems, Inc.

No. 8 7 - 7 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

ARLYN McJUNKIN and LORRAINE
McJUNKIN,
Plaintiffs and Appellants,
-VS-

KAUFMAN and BROAD HOME SYSTEMS, INC.,
a California Corp., and PONDEROSA HOMES,
a Montana Corporation,
Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry W. Moran, Bozeman, Montana
For Respondent:
Herndon, Harper & Munro; Rodney T. Hartman, Billings,
Montana
Berg, Coil, Stokes & Tollefsen; Gig A. Tollefsen,
Bozeman , Montana

Submitted on Briefs: Nov. 13, 1 9 8 7
Decided: December 22, 1987

Filed:

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Following trial by jury in the Eighteenth Judicial
District, Gallatin County, judgment was entered against
Kaufman and Broad Homes (K & B ) on a claim of negligence and
against Ponderosa Homes (Ponderosa) on a claim of negligent
misrepresentation. All litigants allege error. FJe affirm.
The parties present the following issues for review:
1. Did the District Court properly refuse to instruct
the jury on strict liability, the covenant of good faith and
fair dealing and punitive damages?
2. Did the District Court properly grant directed
verdicts dismissing claims of breach of the implied warranty
of habitability, breach of the implied warranty of
merchantability, express warranty and constructive fraud?
3. Did the District Court properly allow the jury to
view the mobile home at issue?
4. Did the District Court properly refuse to grant a
directed verdict on the claims of negligence and negligent
misrepresentation?
Ponderosa is engaged in the business of selling mobile
homes, including those manufactured by K & B. The
controversy at hand arose from the McJunkins' purchase of a K
& B mobile home from Ponderosa.
In December, 1982, the McJunkins met with Ponderosa
salesman Vern Gusick concerning the purchase of a K & B
mobile home. The McJunkins subsequently returned to
Ponderosa and ordered a K & B mobile home with a number of
special features. It arrived in Belgrade on or about
December 21, 1982.
 The McJunkins first inspected their mobile home on
December 23, 1982. At that time, Mr. McJunkin noted that the
mobile home did not conform to their specifications in
certain areas. The McJunkins allege that they told Gusick
they were not going to take the mobile home. Gusick is
alleged to have responded that the trailer was a special
order and they had to take it. In any event, it is
uncontested that Gusick informed the McJunkins not to worry,
that everything will be taken care of. Thereafter, the
McJunkins entered an installment contract for the purchase of
the mobile home.
Ponderosa transported the trailer to the McJunkins' home
in Sheridan, Wyoming, and set it in place. Mrs. McJunkin
testified that she observed the mobile home fishtail wildly
during the trip on an icy curve near Crow Agency. The stress
placed on the trailer during this incident is alleged to be
partially responsible for problems the McJunkins later had
with the trailer.
Immediately upon moving in, the McJunkins noted problems
with the mobile home. A significant problem was that the
trailer was not level. The serviceman who attempted to
relevel the trailer discovered that it could not be leveled
because of the frame. Mr. McJunkin was advised by the
serviceman not to move the trailer as a result. At various
times, the McJunkins also discovered that the doors fit
poorly; the carpet was coming loose; the floor plan had not
been changed; there were not copper pipes as ordered;
shutters were missing; the ceiling fan was defective; there
was not an outside faucet as ordered; the furnace was noisy;
the vent was in the wrong place; the shower heads were not
positioned as ordered; the wrong materials had been used in
the bathroom door casings; the paneling was coming off the
bath wall; the door trim had been incorrectly installed; a
special order cabinet was damaged; shingles came off the
roof; the floor tile was coming up around the toilet; the
front door lock broke; the door bell was installed on the
wrong side; and other problems.
Although Ponderosa and K & B made efforts to remedy some
of the defects, the McJunkins received very little relief.
Efforts to correct defects often resulted in further damage
or more sloppy work. As a result, the McJunkins sent a
revocation of acceptance on December 10, 1984, but continued
to live in the trailer.
Prior to trial, both parties had engineers examine the
mobile home for structural defects. The engineer who
examined the trailer at the request of the McJunkins found
that the wooden frame had been overstressed at some point.
He agreed with the serviceman that the trailer should not be
moved. Defendants' engineer examined the mobile home after
it had been returned to Belgrade. In his opinion, the frame
had not suffered excessive stress and could safely be moved.
Both engineers agreed that the mobile home was habitable.
The jury was also allowed to view the mobile home to make
their own determination. Many of the alleged errors revolve
around the sufficiency of the complaint filed on December 21,
1984, as amended by the pretrial order of October 6, 1986.
The liberal pleading philosophy of the Montana Rules of
Civil Procedure has superseded the highly technical theory of
code pleading which often resulted in substantial injustice
to the injured party. "Ancestor worship in the form of
ritualistic pleadings has no more disciples. The time when
the slip of an [attorney's] quill pen could spell death for a
plaintiff Is cause of action is past." Thompson v. Allstate
Insurance Company (5th Cir. 1973), 476 F.2d 746, 749. A
pleading will be liberally construed in order to achieve
substantial justice. Johnson v. Herring (19311, 89 Mont.
1.56, 173, 295 P. 1100, 1105; Rule 8 ( £ 1 , M.R.Civ.P.
Generally, a pleading need only provide "a short and
plain statement of the claim that will give the defendant
prior notice of what the plaintiff's claim is and the grounds
upon which it rests." Conley v. Gibson (1957), 355 U.S. 41,
47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 85. Discovery procedures
and the pretrial conference under Rule 16 are the primary
means of formulating and clarifying the issues so that the
only real function of pleadings is that of giving notice. 2A
Moore's Federal Practice 5 8.13 at 8-71. However, "it is
not enough to indicate merely that the plaintiff has a
grievance ... sufficient detail must be given so that the
defendant, and the court, can obtain a fair idea of what the
plaintiff is complaining and can see that there is some legal
basis for recovery." Davis v. Passman (1979), 442 U.S. 226,
238 n.15, 99 S.Ct. 2264, 2273, 60 L.Ed.2d 846, 858, 2A
Moore's Federal Practice 5 8.13 at 8-13.
The failure to set forth all claims initially is not
fatal. Under Rule 15 (b), M. R.Civ. P., when issues not raised
hy the pleadings or amended by the pretrial order are tried
by the express or implied consent of the parties, they shall
be treated as if raised in the pleading. The general rule is
that such amendments shall be freely granted. Union
Exchange, Inc. v. Parker (1960), 138 Mont. 348, 357 P.2d 339.
However, liberal construction and amendment of pleadings
does not grant counsel carte blanche to advance new theories
on an unsuspecting opponent. In Brothers v. Surplus Tractor
Parts Corp. (1973), 161 Mont. 412, 506 P.2d 1362, we
cautioned counsel in this state that any reliance on the
liberality of the courts in granting amendments was at their
peril.
 It is generally accepted that the appellant cannot
recover beyond the case stated by him in his
complaint . . .. This Court believes that fair
notice to the other party remains essential, and
pleadings will not be deemed amended to conform to
the evidence because of "implied consent" where the
circumstances were such that the other party was
not put on notice that a new issues was being
raised . . .. (Citations omitted.)
Rule 1 5 (b), M. R.Civ. P. should be applied liberally
to avoid the old requirements of formalism and to
allow litigants to proceed efficiently on the
merits of the case. However, leave to amend
pleading under Rule 1 5 (b), cannot be granted
arbitrarily or perfunctorily because the result
would create a question of due process in cases
where the defendant may not have an adequate
opportunity to prepare his case on the new issues
raised by the amended pleading, therefore the facts
attendant to each case become controlling.
161 Mont. at 4 1 7 - 4 1 8 , 5 0 6 P.2d at 1 3 6 5 .
The McJunkins allege that the District Court improperly
granted a directed verdict on the express warranty claim. It
is alleged that the District Court based its decision on the
McJunkins' failure to plead the claim against Ponderosa. We
disagree. A review of the trial transcript indicates that
Ponderosa did not request, nor did the court grant, a
directed verdict on the express warranty claim. Rather, the
court properly found that the claim was not pleaded.
As noted above, the purpose of pleading is to provide
notice. See Conley, supra. The McJunkins had two and
one-half years to amend their complaint. In addition, the
pretrial order signed by the parties specifically states that
the express warranty claim applied only to K & B. Under
these facts, we cannot say the District Court clearly abused
its discretion. We hold that the District Court properly
refused to submit the issue to the jury.
 Implied Covenant - -
of Good faith -- Dealing
and Fair
The District Court also refused to instruct the jury on
the implied covenant of good faith and fair dealing.
Although the claim had not been plead, the ~ c ~ u n k i n s
submitted a jury instruction defining good faith "as honesty
in fact in the conduct or transaction concerned." We find
that the instruction inadequately defines the tort.
The seminal case on the issue of the implied covenant of
good faith and fair dealing is Nicholson v. United Pacific
Insurance Co. (Mont. 1985), 710 P.2d 1342, 42 St.Rep. 1822.
In Nicholson, this Court engaged in an exhaustive examination
of the nature of the duty of good faith and fair dealing. We
stated:
The nature and extent of an implied covenant of
good faith and fair dealing is measured in a
particular contract by the justifiable expectations
of the parties. Where one party acts arbitrarily,
capriciously or unreasonably, that conduct exceeds
the justifiable expectations of the second party.
The second party then should be compensated for
damages resulting from the other's culpable
conduct.

The issue before us is not novel. In McGregor v. Momrner
(Mont. 1986), 714 P.2d 536, 43 St.Rep. 206 and Dunfee v.
Raskin-Robbins, Inc. (Mont. 1986), 720 P.2d 1148, 43 St.Rep.
964, we rejected similar instructions which defined good
faith and fair dealing as "honesty in fact." As Nicholson
indicates, the covenant of good faith and fair dealing is
more than "honesty in fact." Dunfee, 720 P.2d at 1152, 43
St.Rep. at 969. "It requires, at a minimum, that defendants'
actions were arbitrary, capricious or unreasonable and
exceeded plaintiffs' justifiable expectations." McGregor,
714 P.2d at 543, 4 3 St.Rep. at 214.
 We hold the District Court correctly refused to give the
instruction.
Fraud
The District Court granted a directed verdict in favor
of the defendants on the McJunkins claim of constructive
fraud. The McJunkins contend that the District Court
incorrectly determined that a fiduciary duty is necessary for
a constructive fraud claim to lie. We agree with the
McJunkins. However, we find the error to be harmless.
Constructive fraud is defined in 5 28-2-406, MCA. It
provides :
Constructive fraud consists in:
(1) any breach of duty which, without an actually
fraudulent intent, gains an advantage to the person
in fault or anyone claiming under him by misleading
another to his prejudice or to the prejudice of
anyone claiming under him; or
(2) any such act or omission as the law especially
declares to be fraudulent, without respect to
actual fraud.
By its terms, the statute does not require that the
plaintiff demonstrate a fiduciary relationship. It merely
requires the establishment of a duty. We have recognized
that a sufficient duty can arise in a commercial transaction
such as the one at hand. Woodahl v. Mathews (1982), 196
Mont. 445, 639 P.2d 1165; Mends v. Dykstra (1981), 195 Mont.
440, 637 P.2d 502; Moschelle v. Hulse (1980), 622 P.2d 155,
37 St.Rep. 1506. We find the defendants had a duty to
refrain from intentionally or negligently creating a false
impression by words or conduct. Moschelle, 622 P.2d at 159,
37 St.Rep. 1509.
In the instant case, the McJunkins' complaint stated
that Ponderosa's representations constituted negligent
misrepresentation. The next count contends that the same
representations also constituted constructive fraud. Had the
jury been instructed on both theories, the damages would have
been the same. Thus, the error is harmless.
As the McJunkins' brief only refers to Ponderosa, we do
not address the issue as to K & B. Nor do we reach the issue
of actual fraud. The District Court did not address the
issue because actual fraud was not pleaded or raised by the
McJunkins.
Implied Warrant - Habitability
of
The McJunkins allege the District Court improperly
granted a directed verdict on the implied warranty of
habitability because the defects precluded "realisticw
habitation. In Chandler v. Madison (1982), 197 Mont. 234,
642 P.2d 1028, we recognized that the doctrine of caveat
emptor no longer reflects the realities of the modern home
market. 197 Mont. at 239, 642 P.2d at 1031. We therefore
held that the builder-vendor of a new home impliedly warrants
that the residence is constructed in such a manner as to be
suitable for habitation. Chandler, 197 Mont. at 239, 642
P.2d at 1031. The implied warranty of habitability does not
require that the home be defect free, however.
In the instant case, the District Court found that the
mobile home was habitable. We agree. The trailer did not
constitute a health or safety hazard. Nor was the mobile
home so riddled with defects as to reasonably preclude its
use as a residence. The critical determination for a breach
of habitability is whether the defects relate to the useful
occupancy of the house. Although the problems were a
constant source of irritation for the McJunkins, the experts
for both parties agreed that the trailer was habitable. The
warranty of habitability is not so broad as to provide a
remedy for minor defects and annoyances. See Klos v. Gockey
(Wash. 1976), 554 P.2d 1349.
 Merchantabilitv
The District Court also granted a directed verdict on
the McJunkinsl claim of breach of the implied warranty of
merchantability because "it is excluded by the express
language of the sales document." The language in question
provides :
8. WARRANTIES: THE DEALER SHALL GIVE OVER TO THE
BUYER COPIES OF ANY AND ALL WRITTEN WARRANTIES
COVERING THE WITHIN DESCRIBED UNIT, OR ANY
APPLIANCE OR COMPONENT THEREIN, WHICH HAVE BEEN
PROVIDED BY THE MANUFACTURER OF THE UNIT OR
APPLIANCE OR COMPONENT, RESPECTIVELY. IT -IS
UNDERSTOOD AND AGREED THAT EXCEPT AS MS BE
REQUIRED UNDER APPLICABL-TATE LAW T DEAL=
H E
MAKES NO WARRANTIES WHATSOEVER REG~~TRT~INGTHE UNIT
OR ANY-APPLIANCE
- - OR COMPONENT CONTAINED THERETK
-
THE DEALER E X P R ~ S L Y DISCLAIMS ANY IMPLIED
WARRANTIES, INCLUDING THE IMPLIED W ~ A N T I E S OF
MERCHANTABILITY - F I T N ~
OR FOR USE.
-- A
(Em~hasisin
.
original.)
The McJunkins contend that the "disclaimer" is invalid
because there is no evidence they ever saw or were made aware
of the disclaimer, nor were they made aware of its
significance. Section 30-2-316, MCA, does not require that a
disclaimer of implied warranties be specifically pointed out
to the consumer. In order to "exclude or modify the implied
warranty of merchantability or any part of it the language
must mention merchantability and in case of a writing must be
conspicuous. . .." Section 30-2-316(2), MCA.
In the instant case, the disclaimer was not hidden in
the fine print. The language was in larger, darker, bolder
type. It was also capitalized and underlined. The fact that
the disclaimer appeared on the back of the purchase agreement
is not per se sufficient to render the disclaimer
ineffective. It is fundamental that a person is presumed to
have read the contractual agreements that they enter into.
We find that the disclaimer at issue satisfies the
requirements of 5 30-2-316(2), MCA. See Schlenz v. John Deer
Co. (D. Mont. 1981), 511 F.Supp. 224, 228.
Strict Liability
The McJunkins contend that the District Court should
have instructed the jury on the theory of strict liability.
Defendants contend that the McJunkins failed to plead strict
liability as a theory of recovery. The issue requires two
considerations, whether the evidence justified such
instructions, and whether the failure to plead strict
liability constituted such a lack of notice of the issues to
the defendants that such instructions would be improper or no
amendment to the pleadings could be granted.
In Brandenburger v. Toyota Motor Sales (1973), 162 Mont.
506, 513 P.2d 268, this Court joined a growing number of
states which had adopted strict liability as defined by 2
Restatement (Second) of Torts, 5 402A. Mr. Justice Harrison,
speaking for the Court, indicated that the essential
rationale behind the theory of strict liability was to afford
the consuming public maximum protection from defective
products by requiring the manufacturer who reaps the profit
of sales to also bear the burden of injuries and loss. 162
Mont. at 517, 513 P.2d at 275. For, "it is apparent from a
reading of the Restatement, and the leading cases on this
subject, that the doctrine of strict liability was evolved to
place liability on the party primarily responsible for [an!
injury occurring, that is, the manufacturer of the defective
product." 162 Mont. at 514, 513 P.2d at 273.
In the nearly 15 years since Brandenburger, this Court
has repeatedly returned to the source of Montana's theory of
strict liability. In Thompson v. Nebraska Mobile Homes
(1982), 198 Mont. 461, 647 P.2d 334, we were confronted with
whether a claim for strict liability in tort would lie where
the only harm was to the consumer's property. Thompson also
involved a "lemon" mobile home. Mrs. Thompson was plagued by
cold air blowing through the home's outlets, cupboards and
closets. After several phone calls during a two year period,
a factory man visited the home and caulked the bedroom closet
floor. The caulking was insufficient, however. Mrs.
Thompson found it necessary to install a gas heater as well
as several electrical heaters in an effort to keep warm.
Sometime after the caulking was performed, Mrs. Thompson
noticed that the living room ceiling was sagging
approximately four inches and that the walls of the mobile
home were bowed. Her pleas for assistance fell on dea.f ears.
Consistent with the Brandenburger rationale, an
unanimous court found strict liability applicable:
The rationale [cited] in Brandenburger also applies
under these circumstances. The public remains in
an unfair bargaining position as compared to the
manufacturer. In the case of damage arising only
out of loss of the product, this inequality in
bargaining position becomes more pronounced.
Warranties are easily disclaimed. Negligence is
difficult, it not impossible, to prove. The
consumer does not generally have large damages to
attract the attention of lawyers who must handle
these cases on a contingent fee. We feel that the
consumer should be protected by affording a legal
remedy which causes the manufacturer to bear the
cost of its own defective products. By allowing a
claim for strict liability in tort we are joining
with the jurisdictions of New Jersey, Wisconsin,
Michigan, Minnesota and Colorado in affording legal
recourse to all victims damaged by defects
resulting from the manufacturing process.
198 Mont at 466-67, 647 P.2d at 337.
In the instant case, we are confronted with a situation
very similar to Thompson. The District Court found that the
McJunkins failed to satisfy the elements of 5 402A, however.
It provides:
(1) One who sells any product in a defective
condition unreasonably dangerous to the user or
 consumer or to his property is subject to liability
for physical harm thereby caused to the ultimate
user or consumer, or to his property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies
although
(a) the seller has exercised all possible care in
the preparation and sale of his product, and
(b) the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
The defendants contend that the McJunkins failed to
establish that the mobile home was in a "defective condition
unreasonably dangerous." (Emphasis added.) Thus, the first
question for determination is whether a plaintiff is required
to show that the product is defective and also that it was
unreasonably dangerous.
The dual test propounded by the commentaries to Section
402A of the Restatement (Second) of Torts has been criticized
as "vague and very imprecise." See Keeton, Product Liability
- - Meaning - Defect, 5 St. Mary's L. J. 30, 32 (1973).
and the of
It is unfortunate perhaps that Section 402A of the
Restatement (Second) of Torts provides that as a
basis for recovery it must be found that the
product was both "defective" and "unreasonably
dangerous" when as a matter of fact the term
"unreasonably dangerous" was meant only as a
definition of defect. The phrase was not intended
as setting forth two requirements but only
one ...
Keeton, 5 St. Mary's L. J. at 32. Professor Keeton ' s
argument has merit. We agree with the drafters of the
Uniform Products Liability Act that a modified approach is
needed. The position taken in the commentaries is not
consistent with the mandate of Brandenburger and Thompson.
We have stated that this Court shall not blindly follow the
dictates of the Restatement commentaries.
We emphasize that this Court adopted the rule as
set out in the Restatement, but we did not and do
not intend the restraints in the comments to this
rule to hamstring us in developing and refining the
rule of strict liability. To the extent that the
comments are helpful in our development of the law,
we shall accept them; but we will reject them where
we believe a more appropriate explanation of the
rule of strict liability can be provided.
Stenberg v. Beatrice Foods Co. (19781, 176 Monte 1231
128-129, 576 P.2d 725, 729. We believe the central issue is
whether the product is defective. We therefore chart a
separate course.
In Rix v. General Motors Corp. (Mont. 1986), 723 ~ . 2 d
195, 43 St.Rep. 1296, we distinguished a design defect from a
manufacturing defect. Under a manufacturing defect theory,
the central question is whether the product is flawed due to
improper construction.
[MIanufacturing defects, by definition, are
"imperfections that inevitably occur in a typically
small percentage of products of a given design as a
result of the fallibility of the manufacturing
process. A [defectively manufactured] product does
not conform in some significant aspect to the
intended design, nor does it conform to the great
majority of products manufactured in accordance
with that design. " ... Stated differently, a
defectively manufactured product is flawed because
it is misconstructed without regard to whether the
intended design of the manufacturer was safe or
not. Such defects result from some mishap in the
manufacturing process itself, improper workmanship,
or because defective materials were used in
construction . . .. (Emphasis added.)
 In contrast, a design defect is one which "presents
an unreasonable risk of harm, notwithstanding that
it was meticulously made according to [the]
detailed plans and specifications" of the
manufacturer. Thus, unlike manufacturing defects,
design defects involve products which are made in
precise conformity with the manufacturer's design
but nevertheless result in injury to the user
because the design itself was improper.
723 P.2d at 200, 43 St.Rep. at 1301-02.
Naturally, a product is defective it if is unreasonably
dangerous. Rost v. C. F. & I. Steel Corp. (1980), 189 Mont.
485, 488, 616 P.2d 383, 385. The lack of a dangerous aspect
does not automatically preclude a finding that the product is
defective, however. As Thompson demonstrates, the
Brandenburqer rationale is equally appropriate in situations
of purely economic loss without a finding of unreasonable
danger.
We do not adopt a theory of absolute liability for all
defects. As - indicates, in order for a product to be
Rix
"defective" within the meaning of a manufacturing defect
theory, the defect must be significant. Strict liability is
not intended to replace a breach of contract action for minor
defects. However, defining strict liability solely in terms
of unreasonably dangerous does not adequately set forth the
concept enunciated in Brandenburger. The proper test of a
defective product is whether the product was unreasonably
unsuitable for its intended or foreseeable purpose. If a
product fails this test, it will be deemed defective.
In the instant case, the McJunkins failed to demonstrate
the product was defective or unreasonably dangerous. The
testimony of the experts indicated that the trailer was in
fact habitable. Consequently, we find that the trailer was
fit, suitable, and safe for its intended purpose i.e. a
residence. We need not decide defendants' contention that:
the McJunkins failed to plead strict liability.
Punitive Damaaes
The McJunkins contend that the District Court
erroneously determined that "there's insufficient proof to
justify the giving of such an instruction." We hold the
District Court was correct.
At the time of trial, S 27-1-221, MCA (1985), delineated
when punitive damages were proper. It provides, in pertinent
part:
When exem lary damages allowed. (1) Subject to
-+ ,
subsection in any action for a breach of an
obligation not arising from contract where the
defendant has been guilty of oppression, fraud, or
malice, actual or presumed, the jury, in addition
to the actual damages, may give damages for the
sake of example and by way of punishing the
defendant.
(2) The jury may not award exemplary or punitive
damages unless the plaintiff has proved all
elements of the claim for exemplary or punitive
damages by clear and convincing evidence. Clear
and convincing evidence means evidence in which
there is no serious or substantial doubt about the
correctness of the conclusions drawn from the
evidence. It is more than a preponderance of
evidence, but less than beyond a reasonable doubt.
(3) Presumed malice exists when a person has
knowledge of facts, intentionally avoids learning
of facts, or recklessly disregards facts, knowledge
of which may be proven by direct or circumstantial
evidence, which creates a high degree of risk of
harm to the substantial interests of another, and
either deliberately proceeds to act in conscious
disregard of or indifference to that risk or
recklessly proceeds in unreasonable disregard of or
indifference to that risk.
(4) The plaintiff may not present, with respect to
the issue of exemplary or punitive damages, any
evidence to the jury regarding the defendant's
financial affairs or net worth unless the judge
 first rules, outside the presence of the jury, that
the plaintiff has presented a prima facie claim for
exemplary or punitive damages.
(5) A defendant is guilty of oppression if he
intentionally causes cruel and unjust hardship by:
(a) misuse or abuse of authority or power; or
(b) taking advantage of some weakness, disability,
or misfortune of another person.
We find that the McJunkins failed to demonstrate
oppression, fraud, or malice, actual or presumed by clear and
convincing evidence. At most, the McJunkins showed that the
defendant ' s repeated attempts to repair the defects were
ineffective. We hold the District Court correctly refused to
instruct on punitive damages.
Jury View
Prior to the time of trial, Ponderosa added furniture,
drapes, and minor decorations to the mobile home in question.
Lt is alleged that permitting the jury to view the property
in this altered state prejudiced the McJunkins' case. We
disagree.
The decision to permit or deny a jury view of the
property in question is left to the sound discretion of the
trial court. Section 25-7-401, MCA, provides, in pertinent
part:
When in the opinion of the Court, it is proper for
the jury to have a view of the property which is
the subject of the litigation ... , it may order
the jurors to he conducted in a body, under charge
of an officer and one person representing each
party.. . .
The addition of furniture or minor cosmetic changes is
not dispositive. It is generally held that even where there
has been changes in the condition of the object of litgation,
a jury view is still within the discretion of the court.
Clark v. Worrall (1965), 146 Mont. 374, 379, 406 P.2d 822,
824. It is not an abuse of discretion to allow the jury to
view the premises where the changes are not material. Clark,
146 Mont. at 379, 406 P.2d at 825. In the instant case, the
changes were not material. We find the District Court did
not abuse its discretion.
Negligence - Negligent Misrepresentation
and
Ponderosa contends that the District Court incorrectly
refused to grant a directed verdict on the negligent
misrepresentation claim. When deciding whether a motion for
directed verdict is proper, a case should not be withdrawn
from the jury if reasonable men may differ as to the
conclusions drawn from the evidence. Solich v. Hale (1967),
150 Mont. 358, 435 P.2d 883. The evidence showed that Gusick
told the McJunkins not to worry, that all the problems would
be taken care of. The numerous problems were not in fact
remedied. When the McJunkins complained about the problems
and ineffective repairs, Ponderosa often answered it was K &
B's problem. We hold the issue was properly submitted to the
jury.
Similarly, K & B contends that there was insufficient
evidence to submit the negligence claim to the jury. We find
K & B's claim frivolous. It is not necessary to repeat the
laundry list of defects which riddled the mobile home.
The judgment of the District Court is affirmed.
f-\

/ Justice