NO. 94-077

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

RICK FOLEY, Individually, and as the

Personal Representative of the Estate

of FLORENCE FOLEY,, and RICK FOLEY, as

Guardian Ad Litem for the Estate of

Nichole Foley, a Minor,

Plaintiff and Appellant,

V .

HARRISON AVENUE MOTOR CO., a Montana

corporation; JOHN DOE NO. I, a foreign

corporation, JOHN DOE NO. 2, a foreign

corporation; JOHN DOE NO. 3, a Montana

corporation; and JOHN DOES NOS. 4

through 8,

Defendants and Respondents.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard J. Foley, Pro Se, Butte, Montana

For Respondent:

R. D. Corette and William O'Leary, Corette,

Pohlman, Allen, Black And Carlson, Butte, Montana

Filed:

Submitted on Briefs: August 4, 1994

Decided: October 25, 1994
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Rick Foley i.ndividually, as personal representative of the

Estate of Florence Foley, and as Guardian Ad Litem for the Estate

of Nichole Foley,. a minor, appeals from a jury verdict in the

Second Judicial District, Silver Bow County, in favor of defendant

Harrison Avenue Motor. We affirm.

The issues are:

1 . Whether ,the District Court improperly commented on the

evidence during trial in the presence of the jury.

2 . Whether the District Court properly instructed the jury

based on the evidence presented and the applicable law.

On March 1, 1988, Florence Foley purchased a 1983 Mercury

Cougar from Harrison Avenue Motor Co. (Harrison Avenue) in Butte,

Montana. The automobile was five years old and the odometer showed

approximately 47,000 miles. Prior to placing the automobile on the

lot for sale, Harrison Avenue inspected and serviced the vehicle.

Mrs. Foley used the Mercury Cougar to commute between her home

in Butte and her place of employment in Fairmont Hot Springs,

Montana. Mrs. Foley drove the Mercury Cougar over 21,000 miles in

the fifteen months she owned the vehicle.

On June 10, 1989, Mrs. Foley and a co-worker left Fairmont Hot

Springs following their shift and went to a bar in Walkerville, a

suburb of Butte. The co-worker testified that Mrs. Foley had

several drinks between approximately 5:00 p.m. and 9:30 p.m., at

which time the co-worker left the bar with her husband.

2
On the afternoon of June 11, 1989, Mrs. Foley's dead body was

discovered lying next to the 1983 Mercury Cougar in her closed

garage. The car's ignition switch was in the "off" position and

the driver's seat was partially reclined. An investigation by the

Butte-Silver Bow Law Enforcement Agency uncovered no criminal

activity. An autopsy determined that Mrs. Foley died from carbon

monoxide poisoning.

An inspection of the Mercury Cougar conducted after Mrs.

Foley's death revealed that approximately eighteen inches of the

exhaust system had broken from the rear of the vehicle, resulting

in the automobile exhaust discharging near the left wheel-well

rather than behind the vehicle. The inspection also uncovered

several small holes and separations between the trunk and the left

rear quarter panel. The Butte-Silver Bow coroner determined the

cause of death to be carbon monoxide poisoning resulting from the

faulty exhaust system.

Foley brought this action against Harrison Avenue claiming

breach of warranty, negligent infliction of emotional distress,

strict liability in tort, and negligence. Harrison Avenue moved

for summary judgment on all claims. The court granted Harrison

Avenue's motions for summary judgment on all claims except

negligence. The negligence claim was tried by a jury, which

returned a verdict in favor of Harrison Avenue. Foley appeals.

3
Issue 1

Did the District Court improperly comment on the evidence

during trial in the presence of the jury?

Foley claims that the District Court improperly commented on

the evidence during trial and in the presence of the jury. Foley

called an expert witness to testify to the carbon monoxide levels

recorded in the Mercury Cougar during tests run after the accident.

Counsel for Harrison Avenue objected to a line of questions

concerning federal carbon monoxide emission regulations. Counsel

claimed the evidence sought was irrelevant and that there was no

evidence in the record which established the Mercury Cougar was in

the same condition at the time the tests were run as when Mrs.

Foley bought the vehicle. Counsel for Foley responded to Harrison

Avenue's objection by stating that Harrison Avenue had admitted it

did not test the Mercury Cougar for emission levels prior to

selling the vehicle. He insisted that by failing to determine

whether or not the vehicle's emission complied with federal

regula,iions, Harrison Avenue had brought the federal emission

regulations into controversy. The District Court sustained

Harrison Avenue's objection, stating:

Now, just a minute. I realize what Mr. Rask [owner of

Harrison Avenue Motor] said, but you haven't shown that

he had a duty to buy the equipment and to do that

emissions [testing] and so I'm going to sustain the

objection at this point. The question here is whether he

did a reasonable inspection. . . . [Tlhere is no duty

that--does a reasonable inspection include the testing of

the emissions from every vehicle that he sells or that

sort of thing? And there is no evidence in this record

4
that that's part of the duty. . . . So the objection is

sustained.

Counsel for Foley immediately objected, claiming the District Court

had improperly commented on the evidence. The judge replied, I'. . .

I'm explaining to you why I'm sustaining the objection.1V

This Court has long held that a judge should refrain from

commenting on the evidence in the presence of the jury. State v.

Fuller (1906), 34 Mont. 12, 26, 85 P. 369, 374. However, not every

statement made by the court constitutes an impermissible comment on

the evidence. The fact that a district judge makes incidental

remarks concerning evidence presented at trial in the presence of

the jury does not by itself entitle the appellant to relief.

In the instant case, the court's comments consist of the

judge's rationale for sustaining an objection. The court merely

explained to Foley's counsel why it had sustained Harrison Avenue's

objection. Counsel for Harrison Avenue objected to the line of

questioning concerning federal emission standards, claiming such

standards were irrelevant. The court explained that since Foley

had not presented any evidence that a reasonable inspection by a

used car dealer included an emissions test, evidence of emission

standards at the time of the sale was irrelevant. The court's

statements were permissible to explain why it felt the line of

questioning was improper.

We hold that the District Court did not improperly comment on

the evidence during the trial in the presence of the jury.

5
Likewise, for a comment by the court to give rise to reversible error, such comment must affect the substantial rights of the

party. Rule 61, M.R.Civ.P. When reviewing a claim of improper

remarks by a trial judge, we must review the comments in relationship to the record as a whole. Adams v. Davis (1963), 142 Mont.

587, 592, 386 P.2d 574, 577. Although the District Court may have

been able to explain its ruling in another manner, Foley has failed

to establish how the comments substantially prejudiced his case.

The record is void of any evidence which creates a duty for a

reasonable used car dealer to do emission checks on vehicles before

selling them. Foley failed to present an argument that the

District Court's comments substantially prejudiced his rights. See

Rule 61, M.R.Civ.P.

We conclude that the District Court's statement did not

constitute reversible error.

Issue 2

Did the District Court properly instruct the jury based on the

evidence presented and the applicable law?

The District Court has discretion when deciding how to

instruct a jury, taking into account the theories of the parties,

and we will not overturn that decision absent an abuse of discretion. Arnold v. 13oise Cascade Corp. (1993), 259 Mont. 259, 267,

856 P.2d 217, 222; Mannix v. Butte Water Co. (1993), 259 Mont. 79,

98, 854 P.2d 834, 846. When determining whether a jury was

properly instructed, we will consider the instructions as a whole

6
and in light of the evidence presented at trial. Brown v. North

Am. Mfg. Co. (1978), 176 Mont. 98, 114, 576 P.2d 711, 721.

Foley takes issue with two jury instructions given by the

District Court. First, Foley objects to Instruction No. 17, which

states:

A used car dealer owes a duty to discover and repair any

defects which are patent or discoverable in the exercise

of ordinary care. However, the used car dealer's duty

does not extend to completely dismantling an automobile

and then reassembling it before its resale. The duty

only requires the used car dealer to use reasonable care

to ascertain whether the car it sells is equipped with

the minimum essentials for safe operation.

This instruction was derived from two cases.

In Rogers v. Hilger Chevrolet Co. (1970), 155 Mont. 1, 465

P.2d 834, we held that the defendant, a used car dealer, "had a

duty to discover and repair any defects which were patent or

discoverable in the exercise of ordinary care." Roqers, 465 P.2d

at 837. This duty did not, however, extend to "completely

dismantling an automobile and then reassembling it" in order to

discover such defects. Rosers, 465 P.2d at 838. We reiterated

this rule in Kopischke v. First Continental Corp. (1980), 187 Mont.

471, 480-81, 610 P.2d 668, 673.

In view of our previous case law, Instruction No. 17 is an

accurate reflection of Montana law and was an appropriate jury

instruction in the case at bar. Foley's own evidence establishes

that in order to discover one of the claimed 'ldefects,V' namely the

cracks and holes in the trunk of the Mercury Cougar, it was

necessary to remove the carpet from the floor of the trunk. Jury

7
Instruction No. 17 is thus appropriate as applied to the facts and

the law in this case.

Foley likewise claims error with Instruction No. 25, which

states:

Florence Foley, as the owner of a motor vehicle, owed a

duty to maintain her motor vehicle in a reasonably safe

condition.

Foley claims that Instruction No. 25 shifts the burden relating to

the safety of the vehicle from the seller to the owner. Foley also

claims that the instruction was taken from a case out of context

and is not applicable to the facts in this case.

Jury Instruction No. 25 is taken from Aetna Cas. & Sur. Co. v.

Condict (S.D. Miss. 1976), 417 F.Supp. 63. Aetna involved a

vehicle owner's duty to maintain his vehicle for the protection and

safety of third parties. Aetna, 417 F.Supp. at 69. Harrison

Avenue proposed, and the District Court adopted, the language from

Aetna to be applicable tom the case at bar. We see no reason why

the rule from Aetna is not applicable to vehicle owners in general.

It is not unduly burdensome to require a vehicle owner to maintain

his or her vehicle in a reasonably safe condition. Such a duty is

consistent with an individual's general duty of ordinary care and

was appropriate under the circumstances.

Jury Instruction No. 25 does not shift a burden from the

seller to the buyer, but rather creates concurrent duties. The

seller of used automobiles has a duty to discover and repair

defects which are patent and discoverable through a reasonable

8
inspection. After the vehicle has been sold, the owner has a duty

to maintain the vehicle in a reasonably safe condition. The jury

instructions, when read as a whole, do not shift a burden from the

seller to the buyer, but rather suggest separate and distinct

duties for each party.

The jury was properly instructed concerning the parties'

respective duties.. Jury Instruction No. 17 explained the extent

and scope of Harrison Avenue's duty to inspect and repair its

vehicles before sale. Jury Instruction No. 25 explained to the

jury Mrs. Foley's duty to maintain her vehicle after she purchased

it. We conclude that Instruction No. 25 did not shift any burden

to the plaintiff and that the jury instructions, taken as a whole,

are an accurate reflection of the law.

We affirm.

We concur:

9
Justice Terry N. Trieweiler specially concurring in part and

dissenting in part.

I concur with the majority's conclusion that the judicial

statements objected to in this case were not impermissible comments

on the evidence.

I dissent from that part of the majority opinion which

concludes that the jury was properly instructed and that plaintiff

was not prejudiced by the instructions given to the jury.

The majority relies on our decisions in Rogersv.HilgerChevroletCo.

(1970) I 155 Mont. 1, 465 P.2d 834, and Kopischke v. First Continental Corp.

(198O)r 187 Mont. 471, 610 P.2d 668, to support its conclusion that

Jury Instruction No. 17 was appropriate. However, neither of these

cases were concerned with the appropriateness of similar language

in an instruction to the jury. Therefore, they are not authority

for the majority's conclusion.

It is true that in Rogers, this Court included, in dictum, the

language complained of by plaintiff. It is also true that that

loose language was repeated in a lengthy discussion of used car

dealers' duties found in Kopkhke. However, the mere fact that the

language was included in discussions found in prior cases does not

make it the proper substance of a jury instruction. In fact, by

including that language, the District Court disregarded our clear

admonition in Hunsaker v. Bozeman Deaconess Foundation (1978) , 179 Mont.

305, 333, 588 P.2d 493, 509, where we stated that:

10
Another problemthatthis Court frequently confronts

is that counsel or the trial bench too often draft

instructions in the literal language of the opinions of

this Court or the courts of other jurisdictions. While

occasionally a statement in an opinion may also be a good

jury instruction, we emphasize that opinions are not

designed to be jury instructions. We are confident that

the trial bench, together with counsel, if they take

sufficient time and effort, can draft instructions that

are better jury guides to the law than the literal

language taken from court opinions. We encourage the

bench and the bar to take the time to do so.

In this case, the objectionable language was that part of

Instruction No. 17 which stated that: "However, the used car

dealers duty does not extend to completely dismantling an

automobile and then reassembling it before its resale."

That language constituted an inappropriate comment by the

District Court on plaintiff's claim and must surely have confused

the jury regarding the nature of plaintiff's claim. It was never

plaintiff's position that the defendant in this case had a duty to

dismantle the automobile which it sold to plaintiff's decedent,

then inspect the disassembled parts and reassemble it before

resale. It was simply plaintiff's position that there was

technology available which would enable used car dealers to easily

inspect for carbon monoxide leakage prior to the sale of used cars.

While the above comment may have been a correct statement of

the law based on loose language found in Rogers and Kopischke, it had

no relevance to the factual issues in this case, and in fact,

implied to the jury that plaintiff's claim was based on a duty

which the law did not impose on defendant. It distracted the jury

11
from the real issues which it should have been deciding, it was not

supported by the 'evidence, and it should not have been given.

Even accurate statements of law should not be given to a jury

where to do so creates an issue of fact unsupported by evidence and

which would tend to mislead or divert the minds of the jurors from

the real factual issues. See Diversified Management, Inc. v. Denver Post, Inc.

(Colo. 1982), 653 P.2d 1103, 1110; Koehn v. RD. Werner Co., Inc. (Colo.

Ct. App. 1990), 809 P.2d 1045, 1049.

Jury Instruction No. 17 would have been more appropriately

included in defendant's final argument than in an instruction on

the law given by the District Court. It was a perfect example of

what we discussed in Hunsaker when we held that:

W e note also that counsel frequently draft

instructions at the lastmomentwith little thought given

as to whether they are fair and accurate statements of

the law. They are frequently drafted from an adversary

position and as a result they tend to unfairly benefit

one of the adversaries. That is not the purpose of jury

instructions. Jury instructions are no place to make

final arguments. In addition to being easily understood,

instructions should be a fair statement of the law and

not slanted to the side of one adversary or the other.

Hunsakzr, 588 P.2d at 509.

The error of giving Jury Instruction No. 17 was compounded by

the District Court's Instruction No. 25 which set forth the duty of

plaintiff's decedent. That instruction provided that the decedent

had an unqualified duty to maintain her vehicle in a reasonably

safe condition. It provided no exception where the defect was

latent and undiscoverable, other than by dismantling her vehicle.

12
In other words, the combination of instructions numbered 17

and 25 placed a higher standard of care for inspection and

maintenance of the subject vehicle on the unsophisticated consumer

than on the defendant who engaged in the business of inspecting and

selling vehicles and who employed a full-time mechanic to assist it

in discovering and repairing defects. This result is the exact

opposite of the respective burdens that were established in Kopischke

where we held that:

"The used car dealer is in a better position, by

reason of his opportunity, than his average

customer to discover what defects might exist in

any particular car to make it a menace to the

public. We are of the opinion it is not too harsh

a rule to require these dealers to use reasonable

care in inspecting used cars before resale to

discover these defects, which the customer often

cannot discover until too late." Gaidty Motors v.

Brannon [(KY. 1953)], 268 S.W.2d [627] at 628-629.

Further,

'1. . . expectations of quality and durability will

be lower for used goods, commensurate with their

age, appearance and price. However, safety of the

general public demands that when a used motor

vehicle, for example, is sold for use as a serviceable

motorvehicle (and not as junk parts), absent special

circumstances, the seller be responsible for safety

defects whether known or unknown at time of sale,

present while the machine was under his control.

Otherwise, the buyer and the general public are

bearing the enterprise liability stemming from

introduction of the dangerously defective used

vehicle onto the public highways. Public policy

demands that the buyer receive a used chattel safe

for the purpose intended (where no substantial

change will occur prior to reaching the buyer or

foreseeable consumer) . . . [.]‘I Turner v. International

Harvester-Company [ (1975)], 336 A.2d [62] at 69.

Kopischke, 610 P.2d at 674.

13
Other than Jury Instructions No. 17 and 25, and the court's

general standard of care instruction, there were no other

instructions to the jury regarding the respective duties of the

parties. Therefore, the effect of the court's instructions was to

tell the jury that plaintiff's decedent was absolutely liable for

the safety of her vehicle, but that the dealer, who was in a better

position by reason of his training and facilities, was only liable

for defects which were readily apparent.

The combination of these instructions did not, as suggested by

the majority, create reasonable concurrent duties. They imposed a

higher standard o'f care on this unsophisticated consumer than on

the more knowledgeable dealer.

What has, in fact, occurred in this case is that opinion

language related to specific facts from previous cases has been

taken out of context and used to construct jury instructions which,

when applied in the factual context of this case, totally distorted

the respective duties of the parties. The majority has unwittingly

given its stamp of approval to this rearrangement of the tort law

based on nothing more than the premise that if the language was

included in prior decisions of this Court, it must be okay. I am

anxious to see how they distinguish the next case that comes here

under similar circumstances.

The effect of the court's instructions and the majority's

opinion is to ignore traditional principles of negligence and the

effect that a person's knowledge and training has on the standard

of care imposed. Therefore, I dissent from the majority opinion.

14
For the reasons stated, I would reverse the judgment of the

District Court and remand this case to the District Court for

retrial with proper instructions to the jury.

ust'ce

15
October 25, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Richard J. Foley

3120 Josephine

Butte, MT 59701

R. D. Corette

CORETTE, POHLMAN, ALLEN, BLACK & CARLSON

P. 0. Box 509

Butte, MT 59703

ED SMITH

CLERK OF THE! SUPREME COURT

STATE OF MONTANA