NO. 89-311 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JULIE DeCELLES , 

Plaintiff and Appellant, 

STATE OF MONTANA, acting through 

the Department of Highways; and 

RAY ELDEN EDER, an individual, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Gordon Bennett Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ronald F. Waterman, argued; Gough, Shanahan, Johnson 

& Waterman; Helena, Montana 

Ron L. Lee, Flagstaff, Arizona 

For Respondent: 

John H. Maynard, Department of Administration, 

Helena, Montana 

Sherman V. Lohn & Steven S. Carey, argued; 

Garlington, Lohn & Robinson, Missoula, Montana 

Filed: 

Submitted: April 6, 1990 

Decided: July 11, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

The plaintiff Julie DeCelles appeals the order of Montana 

First Judicial District Court, Lewis and Clark County, denying her 

motion for new trial on the grounds that no prejudice resulted from 

the Court instructing the jury regarding the effects of joint and 

several liability. We affirm. 

Appellant raises a sole issue on appeal: Did the District 

Court err in instructing the jury, over the objection of the 

plaintiff, regarding the consequences of joint and several 

liability as the law was applied to the facts of this case? 

On November 17, 1984, Julie DeCelles was involved in an 

automobile accident on a stretch of U.S. Highway 87 between Roundup 

and Billings, Montana. At the time she was riding as a passenger 

in a 1965 El Camino owned by Rosita Kelley that also carried Rosita 

and Julie's brother and sister, Ray and Rosella Eder. 

The evidence also indicated that Julie, Ray, and Rosita began 

drinking the morning of the day before the accident in Harlem, 

Montana, and continued drinking throughout the day. Later, they 

decided to drive to Havre to pick up sister Rosella. After 

arriving in Havre they went to a bar, played pool and continued to 

drink. 

In Havre, the group then decided to travel south to Billings, 

via Roundup, Montana on U.S. Highway 87. In the early morning 

hours the El Camino crossed the center line and collided with a 

northbound vehicle. The accident rendered Julie DeCelles 

permanently blind, without her sense of smell, and with only a 
minimal sense of taste. Although it was disputed, physical 

evidence of his injuries indicated that Ray Eder was driving the 

vehicle at the time of the accident. 

On December 22, 1986, the plaintiff filed suit against Ray 

Eder as driver of the vehicle and the State of Montana for alleged 

negligence in maintaining the highway at the accident site. 

Defendant Eder failed to answer and the District Court subsequently 

entered his default on April 5, 1988. 

During trial the plaintiff presented the testimony of expert 

Jack Talbott, a mechanical engineer, who stated that the highway 

at the accident site was deteriorated and contained undulations or 

ripples in its surface that could have contributed to the accident. 

The plaintiff also presented evidence that the State of Montana 

knew of the road's condition for several years and failed to repair 

it. This was contested by the State. 

Over the plaintiff's objection, the District Court instructed 

the jury regarding the consequences of their verdict under the law 

of joint and several liability. Returning a verdict in accordance 

with comparative negligence law, the jury then apportioned fault 

among the parties finding the plaintiff 35% negligent, defendant 

Eder 65% negligent, and the State 0% negligent. The plaintiff 

moved for a new trial on the grounds that the instruction was an 

error of law which led to jury misconduct in arriving at a verdict. 

The District Court denied the motion. Plaintiff now appeals 

raising the aforementioned issue. 

The plaintiff argues that because there was ample evidence in 
the record to support the negligence of the State, the jury clearly 

disregarded this evidence and concluded that application of joint 

and several liability would be unfair to the State. Thus, 

plaintiff contends that the giving of Instruction No. 35 on joint 

and several liability prejudiced her case and constitutes 

reversible error. The instruction provided: 

Under the legal concept of joint and several 

liability if you find 

(a) that defendant State of Montana was negligent, 

(b) that negligence was a legal cause of 

Plaintiff's injuries, and 

(c> plaintiff was 50% or less comparatively negligent, then defendant State of Montana may be 

responsible for paying the entire amount of Plaintiff's 

damages after reduction for plaintiff's comparative 

negligence. 

-- See also 5 27-1-703, MCA. The plaintiff argues that it was 

prejudicial error to give this instruction in this case because 

inappropriately injected information about the nonexistence 

of Ray Ederts insurance into jury deliberations and allowed defense 

counsel to allude to such nonexistence during closing argument; (2) 

it allowed the jury in effect to decide the justification for 

applying the joint and several rule which is properly a legislative 

function; and (3) it inappropriately allowed the jury to consider 

the post-judgment effect its finding regarding liability would have 

on each defendant. 

We reject these arguments. The underlying thread running 

through these contentions is skepticism of the informed jury' s 

ability to fairly perform its function in the decision-making 

process without yielding to passion or prejudice. The modern trend 

and better view among comparative negligence jurisdictions that 
have considered the issues is to permit the jury to know the effect 

of its percentage findings. See, senerally Ainsworth & Miller, 

Removins the Blindfold: General Verdicts and Lettins the Jury Know 

the Effects of Its Answers, 29 S.Tex.L.Rev. 233, 237-238 (1987); 

Talenfeld, Instructins the Jury as to the Effect of Joint and 

Several Liability: Time for the Court to Address the Issue on the 

Merits, 20 Ariz .St.L. J. 925, 933 (1988) . In Martel v. Montana 

Power Company (19.88), 231 Mont. 96, 105, 752 P.2d 140, 146, we 

expressly held that such skepticism of a jury's ability to 

properly render its verdict in conformity with the law is 

unfounded: 

We think Montana juries can and should be trusted with 

the information about the conseauences of their verdict. 

Other jurisdictions have considered this question and 

have come to differing conclusions. An excellent review 

of the holdings in those jurisdictions is set forth in 

the Idaho case of Seppi v. Betty (1978), 991 Idaho 186, 

579 P.2d 683. After a lengthy discussion, the Idaho 

Supreme Court concluded that it is naive to believe that 

jurors do not speculate about the effect of their 

answers. To end speculation, the Idaho court said jurors 

should be informed of the effect of their answers. 

Seppi, 579 P. 2d at 691. The Idaho court tempered its 

position by giving the trial court the discretion not to 

inform the jury in those cases where the issues are so 

complex or uncertain that the jury would only be 

confused. Seppi, 579 P.2d at 692. 

We adopt the reasoning of the Idaho Supreme Court 

and hold that under the circumstances of this case, the 

jury should have been informed of the effect of its 

verdict. 

Both Martel and Seppi dealt with the question of informing the jury 

about the effect of modified comparative negligence law on the 

jury's verdict. The Idaho Supreme Court applied the principle of 

informing juries adopted in Semi and later adopted by us in 

Martel to the same issue of joint and several liability presented 
in this case in Luna v. Shockey Sheet Metal & Welding Co. (1987), 

113 Idaho 193, 743 P.2d 61, 64: 

Similarly, the doctrine of joint and several liability, 

under which a defendant assessed a mere 1% negligence 

may be required to pay 100% of plaintiff Is damages if, 

for some reason, the joint tort feasor is unreachable 

through the .judicial process, I1poses a trap for the 

uninformed jury." An informed jury will be much more 

likely to carefully examine the facts prior to reaching 

a verdict holding a defendant even 1% at fault, no 

matter how cosmetically appealing a partial allocation 

of fault might be. 

In Luna the Idaho court followed the reasoning of Kaeo v. Davis 

(Hawaii 1986), 719 P.2d 387, which addressed the same issue of 

joint and several liability. The Hawaii Supreme Court, relying on 

the Idaho Courtls holding in Seppi, determined that it was more 

desirable for the courts to explain the operation of the law to the 

jury than to perpetuate a system which encourages mistaken 

speculation by uninformed jurors. Luna, 743 P.2d at 64-65; Kaeo, 

719 P.2d at 395-396. The holding in Kaeo was also based in part 

on the language of Rule 49 (a), Haw.R.Civ.P., which is identical to 

language in the Montana rule, that "the court shall give to the 

jury such explanation and instruction concerning the matter . . . 

submitted as may be necessary to enable the jury to make its 

findings upon each issue.I1 Rule 49(a), M.R.Civ.P. Following our 

reasoning in Martel, we therefore now adopt the reasoning of this 

line of cases and conclude that a jury should be instructed about 

the consequences of its verdict with respect to joint and several 

liability. 

The State of Wyoming has also followed the reasoning in Seppi 

and applied the principle of informing the jury about the 
consequences of its verdict to the concept of joint and several 

liability. See e.q. Coryell v. Town of Pinedale (Wy0.1987)~ 745 

P.2d 883. Moreover, the Wyoming court has addressed the issue of 

whether it is proper for counsel to argue the effect of joint and 

several liability to the jury. See Seaton v. Wyoming Highway 

Commission (Wy0.1989)~ 784 P.2d 197. In Seaton as in the present 

case, the plaintiff was an injured passenger alleging negligence 

on the part of the driver and the Highway Department. The Wyoming 

Court held that unless counsel misstates the law regarding joint 

and several liability, counsel may properly comment on any 

instruction pertinent thereto given by the court. Seaton, 784 P.2d 

at 207, Harmon v. Town of Afton (Wy0.1987)~ 745 P.2d 889, 893. 

Here, counsel for the Highway Department made the following 

argument in closing: 

Please do not put one percent for just any reason that 

may cross your mind. 

The judge read to you Instruction No. 35. A finding 

of one percent under Montana law, joint and several 

liability is a complete defeat for the State of Montana. 

A finding of one percent under instruction No. 35 would 

allow the entire amount severally to be collected from 

the State of Montana. 

Please do not put one percent or anything of that 

nature. 

Zero is what we're after and zero is what we must 

have. ... 

Now the' plaintiffs haven't asked you to find a 

percentage of negligence against the state but to be sure 

that you find it to be small because that would be 

realistic from their point of view. 

But the temptation is in many of these situations 

when somebody has worked so hard and are such fine 

attorneys, as these two gentlemen are, is to award them 

something for their effort. 

Don't do that. 

We can't make these decisions based on the sympathy 

or on the concerns for other people's efforts. We must 
base them on the facts. 

And that is why when you get that jury verdict form 

when you go through it we're going to ask you to fill in 

zero percent against the State. Because if you find that 

we're one percent or five percent negligent, we could be 

responsible for the entire award. 

We reject the plaintiff's contention that this argument improperly 

injected the issue of the existence of defendant Eder's liability 

insurance into the case. We note that the word insurance never 

appears in the record. We follow the rule that absent a 

misstatement of the law, counsel may properly comment during his 

closing argument on any instruction given by the court. Seaton, 

784 P.2d at 207; Harmon, 745 P.2d at 893. 

Finally, while we find no prejudicial error in Instruction 

No. 35 as given by the District Court, in applicable cases we 

recommend that the jury be instructed on the effect of joint and 

several liability-on its verdict in the following manner: 

Under the doctrine of joint and several liability, if the 

defendants are found to have proximately caused in any 

degree the injuries to the plaintiff, each such defendant 

is liable to the plaintiff for all of the plaintiff 's 

damages for which all of such defendants are responsible, 

irrespective of the varying degrees of fault between the 

defendants in causing the injuries. The reason for this 

doctrine is that although the defendants may have been 

at fault in differing degrees in causing the injuries, 

the resulting harm to the plaintiff is not divisible. 

It is possible therefore that a single defendant may be 

called on to pay for the plaintiff's damages for which 

all of such defendants are responsible, in amounts in 

excess of that defendant's proportionate fault for the 

injuries, or for all of such damages. You may not 

speculate whether, or how, or from what resources, any 

such defendant or defendants might pay a possible 

judgment against them. Your duty is to fix the fault, 

if any, of each defendant based solely on the evidence 

before you and the instructions of the court. 

We believe that this instruction better effectuates the policy of 
fully informing the jury regarding the consequences of its verdict. 

The order of the District Court denying the plaintiff Is motion 

for new trial is 

AFFIRMED. 

Justice / 

We Concur: / 4 A .T+ 

Chief Justice 

Justices 
Justice John C. Sheehy, dissenting: 

I dissent. Instruction no. 35 (set out in full in the 

majority opinion) is a faulty instruction that should have never 

been given. It is incomplete, allows for speculation by the 

jurors, allowed counsel for the State to argue improperly thereon, 

and it abrogated the joint and several rule of liability. 

The statute in effect at the time of this case (it has since 

been amended) allowing joint and several liability provided: 

(1) Whenever the comparative negligence of the parties 

in any action is an issue and recovery is allowed against 

more than one party, each party is jointly and severably 

liable for the amount awarded to the claimant but has the 

right of contribution from any other party against whom 

recovery is allowed. Contribution shall be proportional 

to the negligence of the parties against whom recovery 

is allowed. 

Section 27-1-703 (I), MCA (1978). 

When the foregoing statute is compared to the instruction 

given by the District Court, it is apparent that the instruction 

was defectively incomplete. First, the instruction singled out 

the effect of a judgment as to one of the defendants, State of 

Montana, although there were two defendants in this action. A 

proper instruction would have told the jury that each party is 

jointly and severally liable, and that there is a right of 

contribution in favor of one party who pays more than his proper 

share of the judgment. One might argue in this case that such a 

full instruction would allow the jury to speculate as to whether 

the State of Montana could recover any contribution from Eder, but 
that is no more speculative than the instruction given, which 

allowed the jury to speculate that Eder could not pay any part of 

the judgment. The majority recognize these defects, because their 

suggested instruction does not single out one defendant over 

another. 

The given instruction allowed the jury to speculate as to 

matters outside the evidence in this case, notably whether after 

a judgment was rendered, the defendant State of Montana would have 

to pay the whole judgment because Eder himself was not responsible 

for any amount. Attorneys for the State strove to get that 

implication across to the jury. 

It may be a salutary thing that juries be informed as to the 

effect of their verdicts; in any event, they should be fully 

informed and the information given should be neutral as to the 

parties involved. 

Based on the given instructions, the attorneys for the State 

engaged in an improper and dishonorable closing argument. By the 

argument, the jury's attention was drawn away from the issues in 

the case, essentially here as to whether the State of Montana was 

negligent in the construction and maintenance of the highway so as 

to be a proximate cause of plaintiff Is injuries. The jury was left 

instead to speculate on the fairness or equity of the joint and 

several liability rule. I am amazed that the majority tolerate 

that kind of argument. The instruction permitted the State's 

attorneys to appeal to the prejudices or sympathies of the jury, 

either prejudice against Eder, or sympathy for the State even if 
it had been negligent in causing injuries to the plaintiff. It is 

a cardinal principle of trial law that the trier of fact must 

confine his or its decision to the evidence in the record. Whether 

or not either defendant could pay the judgment was outside the 

record. Whether the State of Montana could recover contribution 

from Eder was outside the record. Such matters had no place in the 

jury's consideration of the facts in this case, yet those matters 

are exactly what the argument of the State attorneys invited. 

Because of the faulty instruction and the improper argument 

based upon it, I would reverse and remand for a new trial. 

I concur in the foregoing dissent of Justice Sheehy.