No. 87-77

IN THE SUPREME COURT OF THE STATEOF MONTANA
1987

ARLYN McJUNKIN and LORRAINE McJUNKIN, Plaintiffs and Appellants,-VSKAUFMAN and BROAD HOME SYSTEMS, INC., aCaliforniaCorp., and PONDEROSAHOMES, aMontana Corporation,

Defendantsand Respondents.

APPEAL FROM: DistrictCourt of the Eighteenth JudicialDistrict, In and 

### for the County of Gallatin, TheHonorable Thomas Olson,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: LarryW. Moran, Bozeman,Montana

ForRespondent: Herndon,Harper & Munro; Rodney T. Hartman,Billings, Montana Berg,Coil, Stokes & Tollefsen;GigA. Tollefsen, Bozeman

## ,Montana

Filed: Submitted on Briefs: Nov. 13, 1987 Decided: December 22, 1987

ClerkMr. 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 ofnegligence 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 fairdealing and punitive damages? 2. Did the District Court properly grant directed verdicts dismissing claims of breach of the impliedwarranty 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 controversyat hand arose fromtheMcJunkins' purchase of a K & Bmobile 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. McJunkinnoted 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 theMcJunkins not toworry, that everything will be taken care of. Thereafter, the McJunkins entered an installmentcontract for thepurchase 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 fishtailwildly during the trip on an icy curve near CrowAgency. 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, theMcJunkins 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 furnacewas 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; aspecial 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 otherproblems. Although Ponderosa and K & Bmade 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 notbe moved. Defendants' engineer examined the mobile home after it had been returned to Belgrade. Inhis opinion, the frame had not suffered excessive stress and could safelybe 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 theMontana Rules of Civil Procedurehas 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 slipof an [attorney's] quillpen could spelldeath for a plaintiffIs 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 achievesubstantial 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 ofwhat theplaintiff's claim is and the grounds upon which it rests." Conley v. Gibson (1957), 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2L.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 ofpleadings 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 ofwhat the plaintiff is complainingand 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 thepleading. The general rule is that such amendments shall be freely granted. Union Exchange, Inc.v. Parker (1960),138Mont. 348, 357 P.2d 339. However, liberal constructionand amendment ofpleadings does not grant counsel carteblanche 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 amendmentswas 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 evidencebecause of "implied consent" where the circumstances were such that the other party was not put on notice that a new issues was being raised

# .... (Citationsomitted.)
Rule 15(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 15(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 raisedby the amended pleading, therefore the facts attendant to each casebecome controlling.

161Mont. at 417-418, 506 P.2d at 1365. The McJunkins allege that the DistrictCourt improperly granted a directed verdict on the expresswarranty claim. It is alleged that the DistrictCourt based itsdecision 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 courtproperly found that the claimwas notpleaded. 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 signedby theparties 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.ImpliedCovenant

### -- ofGood faith and FairDealing 

### -- 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~unkins submitted a jury instruction defining good faith "ashonesty in fact in the conduct or transaction concerned." We find that the instruction inadequatelydefines the tort. The seminalcaseon 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. InNicholson, this Court engaged in an exhaustive examination of thenature of theduty ofgood faithand fairdealing. We stated: The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contractby 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 issuebefore us isnotnovel. InMcGregorv. 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. "Itrequires, at a minimum, that defendants' actions were arbitrary, capricious or unreasonable and exceeded plaintiffs' justifiable expectations." McGregor, 714 P.2d at 543, 43 St.Rep. at 214.We hold theDistrictCourt correctlyrefused 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 incorrectlydetermined that a fiduciaryduty 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, gainsan advantage to the person in faultor anyone claiming under himby misleading another to his prejudice or to the prejudice of anyone claiming under him; or

(2) any such actor 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 samerepresentations also constituted constructive fraud. Had the jurybeen instructed onboth theories, the damageswould 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 

### - of Habitability 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 anewhome impliedlywarrants 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 thehomebe 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 trailerwas 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 

## MSBE REQUIRED 

## UNDER APPLICABL-TATE LAW 

## THE DEAL= MAKES NO WARRANTIES WHATSOEVER REG~~TRT~INGTHEUNIT OR ANY-APPLIANCE OR COMPONENT CONTAINED

## THERETK -- THE DEALER EXPR~SLY DISCLAIMS ANY IMPLIED 

## - WARRANTIES, INCLUDING THE IMPLIED W~ANTIESOF MERCHANTABILITY OR FITN~ FOR USE. (Em~hasis 

### in - --

. A original.)

The McJunkins contend that the "disclaimer" is invalid because there isno evidence they ever saw orwere 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 specificallypointed out to the consumer. In order to "excludeormodify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of awriting must be conspicuous.

# ..." Section 30-2-316(2),MCA. In the instant case, the disclaimer was not hidden in the fine print. The languagewas in larger, darker,bolder type. It was also capitalizedand underlined. The fact that thedisclaimer appeared on theback of thepurchase agreement is not per se sufficient to render the disclaimer ineffective. It is fundamental that a person ispresumed to have read the contractual agreements that they enter into. We find that the disclaimer at issue satisfies therequirements of 5 30-2-316(2),MCA. See Schlenzv. 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 instructionswould be improper or no amendment to thepleadings could be granted. In Brandenburgerv. Toyota Motor Sales (1973),162Mont. 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. JusticeHarrison, speaking for the Court, indicated that the essential rationalebehind the theory of strict liabilitywas 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 liabilitywas 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 ofMontana'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'sproperty. Thompson alsoinvolved a "lemon" mobile home. Mrs. Thompsonwasplagued by cold air blowing through the home's outlets, cupboards and closets. After several phone calls during a twoyearperiod,

a factorymanvisited 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 caulkingwasperformed,Mrs. Thompson noticed that the living room ceiling was sagging approximately four inches and that the walls of the mobile homewerebowed. Herpleas for assistance fellondea.fears. Consistent with the Brandenburger rationale, an unanimous court found strict liability applicable: The rationale [cited]inBrandenburgeralso 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 defectiveproducts. By allowinga 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 themanufacturingprocess. 198Mont at 466-67, 647P.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. Itprovides: (1) One who sells any product in a defective condition unreasonably dangerous to the user orconsumeror to hisproperty is subject to liability for physical harm thereby caused to the ultimate user or consumer,or tohis property, if

(a) the seller is engaged in the business of selling sucha product,and (b) it is expected to and does reach the user or consumer without substantial change in the condition inwhich 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 ofhis 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." (Emphasisadded.) Thus, the first question for determination is whether aplaintiff is required to show that the product is defective and also that it was unreasonablydangerous. The dual test propounded by the commentaries to Section 402Aof theRestatement (Second)ofTortshasbeen criticized

as "vagueand very imprecise." SeeKeeton,Product Liability and the Meaning of Defect, 5 St. Mary's L. J. 30, 32 (1973). 

## -- - 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 theUniform 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 developingand refining the rule of strict liability. To the extent that the commentsarehelpful in our development of the law, we shall accept them;but we will reject themwhere 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 ~.2d 195, 43 St.Rep. 1296,we distinguisheda design defect from a manufacturing defect. Under a manufacturing defect theory, the central question iswhether the product is flawed due to improper construction. [MIanufacturing defects, by definition, are "imperfections that inevitably occur in a typically small percentage ofproducts 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 ismisconstructed without regard towhether 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



# .. .. (Emphasisadded.)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 thedesign itselfwas 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. SteelCorp. (1980), 189Mont. 485, 488, 616 P.2d 383, 385. The lack of a dangerous aspect does not automaticallypreclude 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 - Rix indicates, in order for a product to be "defective" within the meaning of a manufacturing defect theory, the defect must be significant. Strict liability is not intended to replace abreach of contractaction forminor 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,theMcJunkins 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. aresidence. We need not decide defendants' contention that: theMcJunkins failed to plead strict liability. PunitiveDamaaes 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 DistrictCourtwas correct. At the time of trial,S 27-1-221, MCA (1985),delineated whenpunitive damageswereproper. It provides, inpertinent 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 reasonabledoubt.

(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 unreasonabledisregard of or indifferenceto that risk. (4) The plaintiff may notpresent,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 judgefirst rules, outside thepresence of the jury, that the plaintiff haspresented aprima facie claim for exemplary orpunitivedamages.

(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 someweakness,disability, ormisfortune of anotherperson.

We find that the McJunkins failed to demonstrate oppression, fraud,ormalice, actualorpresumed by clearand convincing evidence. At most, theMcJunkins showed that the defendant

### 's repeated attempts to repair the defects were ineffective. We hold the DistrictCourt correctly refused to instructonpunitivedamages. Jury View Prior to the time of trial, Ponderosa added furniture, drapes,andminor 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 isproper 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 conditionof 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 thepremises where the changes are notmaterial. 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 itsdiscretion. Negligence

## - and Negligent Misrepresentation Ponderosa contends that the District Court incorrectly refused to grant a directed verdict on the negligent misrepresentation claim. When deciding whether amotion 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)

### , 150Mont. 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 itwas K & B's problem. We hold the issuewasproperly submitted to the jury.Similarly, K & B contends that there was insufficient evidence to submit thenegligence claim to the jury. We find K & B's claim frivolous. It is not necessary to repeat the laundry listof defects which riddled themobile home. The judgment of the DistrictCourt is affirmed. f-\

/ Justice