IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DOUGLAS D. SOLBERG, as Personal Representative 

of the Estate of Darrel B. Solberg, Deceased, 

Plaintiff and Appellant, 

VS. 

COUNTY OF YELLOWSTONE, MONTANA, and SIDNEY J. 

HAYES, JR., M.D., 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sandal1 & Cavan, Billings, Montana 

For Respondents: 

Anderson, Brown, Gerbase, Cebull & Jones, Billings, 

Montana 

Submitted on briefs: September 9, 1982 

Decided: March 1, 1983 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is a wrongful death action on appeal from the District 

Court of the Thirteenth Judicial District in and for the County 

of Yellowstone. The jury found for the defendant, Yellowstone 

County. From that adverse verdict and judgment, the plaintiff 

appeals. 

Solberg had been incarcerated in the Yellowstone County jail 

since mid-day on November 19. On that day he was involved in a 

single-car accident. His car left the road, went through a 

fence, and came to rest in a field. Solberg was in the car when 

the deputy sheriff arrived. According to the deputy, Solberg was 

"quite intoxicated" and "he could barely walk." He was then 

taken to jail and charged with driving while intoxicated and 

driving without a valid driver's license. On the following day, 

November 20, 1974, he pled guilty to the two offenses in justice 

court. He was unable to pay the fine imposed and as a result he 

was ordered to serve time in jail. 

On November 22, 1974, at approximately 7:30 a.m., Darrel 

Solberg was found lying face down on the floor of a padded cell 

in the Yellowstone County jail. He was immediately rushed to the 

hospital and was pronounced dead on arrival. At the emergency 

room his temperature was recorded at 107.8 degrees. Later that 

morning an autopsy was performed. The cause of death was determined to be hyperpyrexia ; the greatly elevated temperature 

related to delirium tremens and alcohol withdrawal. The 

complaint alleged that the defendant, Yellowstone County, 

"negligently and carelessly failed to promptly secure, or demand, 

adequate and proper medical attention. . ." The jury held for 

the defendant. The plaintiff then brought this appeal. 

Several issues were raised on appeal: 

1. whether the jury was selected in accordance with the law; 

2. whether or not the District Court erred in refusing to 

give an offered instruction on negligence as a matter of law; and 
3. whether or not there is substantial evidence to support 

the verdict? 

The first issue relating to the selection of the jury 

necessitates a reversal and remand for new trial; however, we 

will consider the other issues in view of the fact the case must 

be retried. 

The trial in this cause took place during October 1980. 

During that same time period, within weeks of the Solberg trial, 

another trial was held in the Thirteenth Judicial District. The 

other case was entitled Dvorak v. Huntley Project Irrigation 

District. In that case a jury rendered a verdict which was 

appealed to this Court. We reversed, because the jury had not 

been selected in accordance with law. Dvorak v. Huntley Project 

Irrigation District (1981) -- - - - . - Mont . r 639 P.2d 62, 38 

St.Rep. 2176. Specifically, we found violations of sections 

25-7-202 and 25-7-204, MCA. 

Upon review of the supplemental transcript of proceedings in 

Dvorak, which have become part of the record in this case, we 

find the following testimony of Charmaine Fisher, a Deputy Clerk 

of Court for the Thirteenth Judicial District: 

"Q. Have you sat on other cases where juries 

were selected in the same procedure? A. Yes. 

"Q. Was there a case called Solberg? A. 

Yes. 

"Q. And was the jury selected in that case in 

the same manner? A. Yes ." 

Also the testimony indicates that the procedure had been used 

in the district for many years. 

"Q. And is that [the jury selection 

procedure 1 commonly used in Yellows tone 

County? A. Yes, has been for, well I can't 

imagine how many years I know at least 

twenty. . ." 

Here, appellant's argument is simply: -- Dvorak and this case 

were tried in the same judicial district, both having juries 

selected with the same procedures and since --- 

Dvorak was reversed 
because of such procedures, this case should also be reversed. 

We agree. 

Respondent strenuously argues that appellant's object ion is 

not timely. In - Dvorak -- the appellant made his objection known a 

week after the verdict had been entered but before his motion for 

a new trial. In this case, appellant first objected to the jury 

selection process in his initial brief; more than one year since 

the trial. The respondent in Dvorak - argued that objections to 

the jury selection process had come too late. We held otherwise, 

stating: 

" [tjhe basic flaw in this contention is that 

counsel for the [appellant] did not discover 

the discrepancies in the jury selection process until a week after the trial. Further, 

counsel had no reason, prior to his inquiries, 

to suspect that the statutory procedures were 

not being followed. In other words, the 

'means of knowledge1 were not available for 

counsel to object before or during the trial. 

"In Ledger v. McKenzie (1938), 107 Mont. 335, 

85 P.2d 352, this Court discussed the 

necessity of objecting to the impaneling of a 

jury in a timely manner. This Court held: 

I' I 

. . . that if counsel does not have the 

knowledge, or means of knowledge, of the irregularity in the drawing of the jury or the 

panel from which it is selected until after 

the verdict, the question may be raised for 

the first time on motion for new trial .I 85 

P.2d 353." Dvorak, Mont. at - -- - 639 

P.2d at 64, 3mT~ep-r at 2179. 

Respondent asserts that since the issue was not raised on 

motion for a new trial, any objection was lost. The rule cannot 

be so construed. The rule simply states that if counsel was 

without knowledge or means of knowledge during trial he may, upon 

gaining knowledge of select ion irregularities, make his object ion 

known in a motion for new trial. The rule does not limit the 

time period for making the objection, rather it defines a particular point as being timely. In this case we merely define 

another point as being timely. 

Respondent also argues that appellant's counsel is a veteran 

trial attorney and must have been aware of the preselection process, thus counsel must have had knowledge or means of knowledge 
of selection irregularities. Although appellant's counsel knew 

that the jury was preselected, it does not follow that he knew or 

should have known that the proper procedures were not followed. 

As we said in Dvorak, Mont. at - -. 639 P.2d at 65, 38 

St.Rep. at 2179, "counsel had a right to rely on the judge and 

clerk to follow their statutory duties ." 

Next, appellant contends error for failure of the District 

Court to give his offered jury instruction number 28, which 

reads: 

"You are instructed that this Court has found 

as a matter of law that Yellowstone County was 

negligent in its care and treatment of Darrel 

Solberg and therefore no finding on this 

question is required of you. The only 

remaining issue with respect to Yellowstone 

County is for you to find what damages, if any 

were proximately caused by Yellows tone 

County s negligence." 

In support of the above instruction we are cited to Azure v. 

City of Billings (1979), 182 Mont. 234, 596 P.2d 460. In that 

case we upheld the District Court's ruling that the City of 

Billings was negligent as a matter of law in view of section 

53-24-303(2), MCA. Appellant would have this Court declare the 

statute applicable in this case, however, we cannot do so. The 

statute reads: 

"A person who appears to be incapacitated by 

alcohol shall be taken into protective custody 

by the police and forthwith brought to an 

approved public treatment facility for 

emergency treatment. If no approved public 

treatment facility is readily available, he 

shall be taken to an emergency medical service 

customarily used for incapacitated persons. 

The police, in detaining the person and in 

taking him to an approved public treatment 

facility, are taking him into protective 

custody and shall make every reasonable effort 

to protect his health and safety. In taking 

the person into protective custody, the 

detaining officer may take reasonable steps to 

protect himself. No entry or other record may 

be made to indicate that the person taken into 

custody under this section has been arrested 

or charged with a crime." 

Appellant's argument is simply this, the statute established 

a duty on Yellowstone County to take Solberg to a treatment facility or emergency medical service, and since this was not done 
the defendant was negligent as a matter of law. 

As we said in Azure, to uphold negligence per se through statute, "the plaintiff must be a member of the class in whose favor 

a duty was imposed by the statute . . . and the defendant must be 

a member of the class against whom a duty is imposed ." Azure, 

182 Mont. at 240-241, 596 P.2d at 464. We hold that the plaintiff was not a member of the protected class. We do not reach 

the question of whether Yellowstone County was a member of the 

class on whom the duty was imposed. 

The underlying focus of section 53-24-303 (2), MCA, is set 

forth in a legislative statement of policy: 

"It is the policy of the state of Montana to 

recognize alcoholism as an illness and that 

alcoholics and intoxicated persons may not be 

subjected to criminal prosecution because of 

their consumption of alcoholic beverages but 

rather should be afforded a continuum of 

treatment in order that they may lead normal 

lives as productive members of society." 

Section 53-24-102, MCA. 

In other words, the legislature had in mind the protection of 

those individuals whose only fault is an affinity for alcohol. 

Consequently, the police are obligated to further that purpose by 

placing in protective custody those who appear to be incapacitated by alcohol, and " [n]o entry or other record may be made to 

indicate that the person taken into custody . . . has been 

arrested or charged with a crime ." Too of ten in the past, 

intoxicated or incapacitated persons were thrown in jail to sleep 

it off and invariably were charged with some criminal offense 

indicating the community's displeasure. This is what happened in 

Azure. 

Solberg was not in the protected class. He was arrested for 

driving under the influence of alcohol and for driving without a 

valid license. He pled guilty to both of these offenses. The 

statute is not intended to protect incapacitated persons who have 

committed or are suspected of criminal acts; only those who by 

reason of their incapacitation, are in need of protective 

custody. Azure was in the protected class. After being 
assaulted, police found him in a seemingly intoxicated condition. 

He showed obvious signs of injury; two black eyes, a large bruise 

on his forehead, and dried blood on his lips and teeth. He was 

in jail for sixteen hours before being taken to the hospital. He 

had committed no crime. Police had responded to what seemed to 

be an attempted burglary. He was charged with public intoxication and trespass. Clearly, --- Azure was among the protected class. 

The foregoing does not preclude a common law duty. In Pretty 

on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 

60-61, we stated: 

"A jailer owes a duty to the prisoner to keep 

him safe and to protect him from unnecessary 

harm. Reasonable and ordinary care must be 

exercise~forthell~and-hxth of the prisoner. (Citations omitted. ) 'A sheriff owes 

a prisoner placed in his custody a duty to 

keep the prisoner safely and free from harm, 

to render him medical aid when necessary, and 

to treat him humanely and refrain from 

oppressing him.'" 

We again cited the rule in Azure, that "law enforcement off icials have a duty to obtain medical care when necessary for persons in their care or in their custody." Azure, 182 Mont. at 

243, 596 P.2d at 465. Appellant claims that even under common 

law principles the defendant was negligent as a matter of law, 

thus, apart from the statute discussed above, the trial court 

should have given his proposed instruction. However, we hold 

that while there was a duty owed, it became a factual question 

for the jury whether or not that duty was breached: 

"Ordinarily it is for the jury to decide, 

under appropriate instructions, the issue of 

whether there has been a negligent breach of a 

legal duty. (Citations omitted. ) Negligence 

and breach of duty are for the court to determine only if the evidence is undisputed or 

susceptible of but one conclusion by reasonable men." Suhr v. Sears Roebuck Co. (1969), 

152 Mont. 344, 348, 450 P.2d 87, 89. See also 

Lawlor v. County of Flathead (1978), 177 Mont. 

508, 582 P.2d W. 

75\ We find that the issue of breach of duty was properly a jury 

issue. Reasonable men could reach different conclusions, thus 

negligence as a matter of law did not exist. 

We now reach the third issue, whether or not there is 
substantial evidence to support the verdict. 

"In considering the sufficiency of evidence we 

apply a limited standard of review. Where a 

fact issue is presented before a court sitting 

with a jury, and there is substantial evidence 

to support the jury verdict, the verdict will 

stand . 

"Evidence may be inherently weak and still be 

deemed substantial, and substantial evidence 

may conflict with other evidence." Gunnels v. 

Hoyt (19811, Mont . I , 633 P.2d 

1187, 1191, 38 ~x.~ep. 1492-,- 1493.---- 

Voluminous evidence was presented by both parties concerning 

Solberg 's condition prior to his death. Medical experts differed 

on the precise nature of delirium tremens and whether or not 

Solberg may have crossed the fine line between alcoholic 

withdrawal, which is not life-threatening , and true delirium tremens, which is. There is no doubt that Solberg was completely 

disoriented at times, however, it was vigorously disputed as to 

what this symptom meant in terms of how a reasonable jailer would 

act. Appellant contended that Solberg's behavior was clearly 

indicative of DT1s. However, respondent presented testimony idicating that the kind of symptoms that Solberg exhibited could 

occur while a person was going through alcohol withdrawal. In 

other words, these symptoms do not necessarily mean a person is 

in the life threatening condition of DT's. 

Appellant relies heavily on his exhibit number two which is a 

training manual used in Yellowstone County to educate jailers 

concerning the problems of special prisoners. A pertinent part 

of that manual reads: 

"Probably the special prisoner seen most often 

by the jailer is the 'drunk.' And since these 

people are frequently put in jail, officers 

of ten tend to become casual in their treatment 

of them, assuming that they only need to 

'sleep it off.' This may be true of some 

alcoholics, but there are many others who 

might become seriously ill or even die if 

merely left alone to 'sleep it off . 

"While checking the intoxicated prisoners, you 

should ask yourself: ARE ANY OF THE 

PRISONERS TREMBLING AND SHOWING SIGNS OF 

EXPERIENCING STRANGE HALLUCINATIONS? 
"If a prisoner trembles in fear thinking he is 

being attacked by such things as spiders, 

snakes, insects, etc. , his condition--far 

from being silly or amusing--is extremely 

serious. He may be slipping into a condition 

commonly known as DT ' s (delirium tremens ) . "If you recognize the above symptoms: CALL A 

PHYSICIAN IMMEDIATELY AND DESCRIBE THE 

PRISONER'S CONDITION TO HIM. THEN: FOLLOW 

HIS INSTRUCTIONS CAREFULLY. " 

Appellant argues that the jailers, all of whom were required 

to pass a course which used the manual, should have recognized 

the danger to Solberg, and since they did not, they did not act 

reasonably. However, there was evidence to establish that 

Solberg did not exhibit any symptoms of being fearful. A medical 

expert testified that the element of uncontrollable fear is a 

prerequisite to being in life-threatening DT's . 

This case is factually difficult. With hindsight it is 

tempting to say that the jailers should have recognized the 

seriousness of Solberg's condition. However, in view of the evidence a jury could have logically concluded that the jailers 

acted reasonably and without negligence. " [Olnly when there is a 

complete absence of probative facts to support the verdict does 

error occur." Strong v. State (1979), Mont . ----I I 600 

P.2d 191, 194, 36 St.Rep. 1665, 1669. 

For the foregoing reasons, we reverse and direct the court to 
Mr. Justice Daniel J. Shea, concurring: 

I join in the opinion and simply point out that in 

holding that a party can challenge the selection of a iury 

panel by raising the issue for the first time on appeal, we 

have impliedly overruled our holding in State v. Fitzpatrick 

(1977), 178 Mont. 530, 536, 569 P.2d 383, 387-388. Although 

we reversed defendant's conviction and the conviction of a 

co-defendant on other grounds and sent the case back for 

retrial, we held in Fitzpatrick that "defendants cannot 

challenge the jury for the first time on appeal on the ground 

that the District Court failed to select and draw panels in 

accordance with applicable Montana law." In reaching our 

decision here this Court should have addressed Fitzpatrick 

and the two other cases relied on in Fitzpatrick for the 

proposition which we are impliedly overruling today.