No. 81-440 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

MICHAEL R. JACQUES, Plaintiff,Respondent and Cross-Appellant,

THE MONTANA NATIONAL GUARD,DEPARTMENT OF MILITARY AFFAIRS OF THE STATE OF MONTANA, and 

### THE STATE OF MONTANA, Defendants,Appellants and

Cross-Respondents.

Appeal from: District Court of the Third Judicial District, In and for the County of Deer Lodge Honorable Robert Boyd, Judge presiding. Counsel of Record: ForAppellants: Garlinqton,Lohn and Robinson, Missoula,Montana Gary 

### L. Graham argued and Gary B. Chumbrau argued,

Missoula, Montana For Respondent: Johnson, Skakles and Kebe, Anaconda,Montana Greg J. Skakles argued,Anaconda, Montana

Submitted: May 21, 1982

### Mr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court.

This is an appeal by defendant from judgment entered May 15, 1981,by the Third Judicial DistrictCourt following

a juryverdict in favor of plaintiff for $1,390,000.00 and from the order entered thereafter onpost-trialmotions. Plaintiff cross-appeals. Plaintiff's legswere traumatically amputated by an explosion on February 6, 

### 1977. Plaintiff, employed at the Anaconda Smelter in Anaconda,Montana,had been engaged in a conversation with a co-employee,Larry Raver. During the conversation,Raver picked up a "projectile"or large shell fromhis nearby truck and was holding it in his hands. Raver explained to the plaintiff that the shellwas a dud but that it was designed to "gooff" in a certainmanner. When Raver was concluding this statement, the plaintiff, concerned of the danger,began running for safety. The shell exploded. Raver was killed and plaintiff's injuries ensued. Plaintiff filed suit against the Montana National Guard and the State ofMontana alleging that the decedentRaver obtained the shell from theNational Guard firing range in the Deer Lodge-Mt. Powell area. Plaintiff's proof established that the National Guard held exercises in this area and that large ammunition was left after the exercises. Plaintiff alleged negligence in failure to clean up the area and in leaving live ammunitionwhere the public had access to it. Substantial credibile evidence established a 

### case of negligence and defendants do not appeal thatdetermination. Defendants contend thatplaintiff totally failed to prove that Raver obtained the shell 

### in question from the firing range near Deer Lodge.

### Two other issues arepresented for review. Defendants contend that the present limitation on state liability for damages should apply or, in the alternative, that any recovery should be limited to applicable insurance limits. In a cross-appealplaintiff challenges the constitutionality of section 2-9-317,MCA, which exempts the State frompaying interest on judgments for a twoyear period. The sufficiency of evidence questionmust be decided first. SUFFICIENCY 

### - OF EVIDENCE Plaintiff's case forproximate cause was supportedby the following: (1) 

### Plaintiff's testimony that the shellwhich caused his injurieswas approximately eighteen inches long and about three inches in diameter; (2) Evidence from theNational Guard that exercises

near Deer Lodge had included the firing of a projectile about eighteen inches longwith a three-four inch diameter; (3) Testimony from several witnesses that large live rounds had been found in the area of Mt. Powell; (4) 

### Deposition testimony from Larry Raver'swidow establishing that Raver had traveled by motorcycle in the Mt. Powell area and during hismotorcycle travels had collected whatmight be termed "junk items"; (5) 

### Larry Raver, while demonstrating a large shell to

a co-employee prior to this accident, stated thathe had found the shell; (6) 

### Other sources of the shell in questionwere few, if any. Defendantcounteredwith expert testimony tending to prove that the roundwhich exploded and injured the plaintiff

was a 

### 2.75 inch rocket roundwith amark-176 fuse. Defendants'

### evidence further sought to prove that such a rocket round had never been fired by the Montana XationalGuard at the Deer Lodge firing range. The issue iswhether plaintiff's circumstantial evidence was sufficientto create a jury issue on proximate cause. It is incumbent upon theplaintiff to present evidence from which 

### a jurymight reasonably infer thatLarry Raver obtained the shell in question from theNational Guard firing range

near Deer Lodge. Circumstantial evidence sufficient to prove proximate cause in a civil causeneed not exclude every reasonable conclusion other than the conclusion sought to be established. Lenherr v. NRM 

### Corp. (D.Kan. 1980), 504 F.Supp. 165. Plaintiff's evidence is sufficient if it affords a basis for a reasonable inferenceby the trier of factalthough there are other reasonable inferenceswhich might be drawn by that trier of fact. Arterburn v. St. Joseph Hospital and RehabilitationCenter (1976), 220 Kan.

With these rules inmind,wewill now review that evidence offered by plaintiff to prove the proximate cause thesis. Upon this evidence,the plaintiff's contention for

a submissible jury issue must rise or fall. The following testimonywas givenby Gerald Effing, retired National Guard Colonel: "Q. 

### Did you know anything about the firing area down in Deer Lodge? "A. 

### Yes, Idid. "Q. 

### Could you tell us what you knew about that area? "A. 

### Well,we started firing there in 1956 and fired there in '56 and '57and thenwe went down to Townsend in 1958 or about 1961 and thenwent back to Deer Lodge for '62through '66.

"Q. 

### What type of guns or what did you fire there?

### "A. Well, the artillery,we had 105 millimeter howitzers and we had 155millimeter howitzers. "Q. 

### And the ammunitionwhich the artillery fired, was that all live ammunition? "A. Yes, itwas.

"Q. 

### First,could you statewhat the general size of a 105projectile is? "A. As far as length? "Q. 

### Just generally. "A. Itwould probably be 18 inches long. "Q. 

### Okay. "A. About three or four inches in diameter." The following testimony of the plaintiff was offered to show the similarityof the shell which injured the plaintiff. Mickey Jacques testified: "Q. 

### Did youhave a 

### chance to look at the shell he was holding? "A. Yes. "Q. 

### And could youdescribe it for us? "A. Yes. Itwas a foot

### -- approximately a foot and a half long and about three inches indiameter." Plaintiff sought through several witnesses to establish the existence of similar rounds following National Guard exercises. The following testimony is illustrative. Charles Fudge, Forester,U.S. 

### Forest Service, testified: 

### "Q. Prior to this first time you came in contact in June of 1969with the National Guard people,had you ever been on the Montana State Prisonproperty or forest serviceproperty in the vicinity where this fire occurred? "A. Yes. "Q. 

### Had you ever observed any rounds or projectiles out there? "A. 

### Yes. To the best of my recollection,it would have been in the fall. Itwould have been in the fall

### of 1968. "Q. 

### Doyou recall where youwere when you observed these projectiles?"A. 

### Theywere on the face of a grassland area leading up towards Deer LodgeMountain and Mount Powell ridge,both onMontana State Prison land and at the top of the edge of a grass openingwhere timber began. I observed one ormore projectiles onNational Forest lands." Defense cross-examinationof Charles Fudge revealed the following:"Q. 

### Have any other incidents come to your attentionwhere high explosive projectiles have been found in the area? "A. Yes. "Q. 

### When was that? "A. I

### believe that was in 1972. "Q. 

### Would you relatewhat your recollection of those eventswere? "A. Yes. Rob Malinsky, who was an assistant of mine at Deer Lodge, came tome one day and indicated that he had a report from a Deer Lodge resident,as I recall,who had found some projectiles along the shore or just within Powell Lake." Laurence Lambert,Montana State Prison employee, testified: "Q. 

### What area did you see those shells in? Is there a creek or something? "A. 

### It's on the ridge between Tin Cup Creek and Robinson Creek. There's a horse trail that goes to the lake and it's right where the horse trail breaks at the top of the ridge. "Q. 

### How long ago did you see these shells? "A. 

### Iwould say itwas '77 or '78. "Q. 

### Has therebeen more than one shellyou've observed out there? "A. Yes. "Q. 

### Howmany would you say? "A. 

### Oh, about 30." 

### Other corroborative evidencewas received but the testimony quoted above represents the type of proof offered by 

### theplaintiff to establish the existence of large shells in the area of the Deer Lodge firing range.

### Plaintiffproduced through deposition testimony of Larry Raver's widow, evidence that Raver traveled in the

areawhere similar rounds were known to have 

### existed. In pertinent part, she testified as follows: "Q. 

### Would he ride his bike twelve months out of the year? "A. 

### Yes. "Q. 

### Doyou have any ideawhere he rode,Delores? "A. Well, I

### know for a fact thathe rode on themountains up above our house. He rode quite a bit around Helena,he rode alot over towards Wisdom and German Gulch. He just crisscrossed everywhere on thatbike.

"Q. 

### Did Larry ever bring anything back with him, Delores, when hewas on these rides? "A. He would bring back little things that he found of interest. Hemight spend an afternoon going through an old rambled-down shack and anything that he thoughtwas adventurous, he would bring ithome. "Q. 

### Howwould he carry these things? "A. I

### had bought him a set of saddlebags for the bike and they got torn, so he put a rack on the back of the bike and he had a box fixed to it thathe could put his things in. "Q. 

### Where did Larry used to fish,Delores? "A. 

### Mainly in rivers and streams,but all over the State

## -- or thispart of the State. "Q. 

### Doyou knowwhether he ever camped or fished in any of the mountain lakes up in the Racetrack orMount Powell area? "A. 

### Yes, he went up there frequently." Plaintiff offered the testimony of co-employees, that Raver had displayed a large projectile to them at a time prior to this accident,and had told them where he had found it. Defendants objected on the basis of hearsay and the objectionwas sustained. However, the following testimony was introduced throughJames Ficklin,a co-employee, and

### was received without objection: "Q. 

### Did you ever see a shell in Larry Raver's possession up on the hill? "A. 

# . . . I'm not sureof the exact date. It seems tome itwas a coupleweeks prior to when Mick was injured and Larrywas killed. 

# .. Iwas late forwork thatday and Larry followedme into the lot. 

# . .he did specify that he had something thathe wanted to showme that he found. 

### "Q. When he pulled up behind you and stopped you,did he get out of the car? "A. 

### I pulled in and parked my vehicle and when I got out,Larry was outside of his truck but he had his door open. What he was doing was security. When I turned, Iwalked up and approached the vehicle and when I turned around, I could see some sortof projectile." Testimony that Raver found a shell,whichmay have been the

one responsible forplaintiff's injuries,provides evidence from which the jury could rule out several alternative sources, i.e., that Raver brought the shell home from Vietnam or that he purchased it fromanyone. Plaintiff offered other testimony tending to prove that the plaintiff had not traveled widely outside of Montana, had notbrought the shellback fromVietnam, and generally proved the lack of other sources for a projectile similar to the onewhich injured theplaintiff. Defendantproduced expert testimony, which, if believed, established that the round which injured theplaintiff had notbeen fired at the Deer Lodge firing range. It is unnecessary to detail this testimony. Plaintiffwas able to impeach the credibility of defense experts to some extent,but the expert testimony remained sufficiently strong to support a 

### defense verdicthad onebeen rendered. InThompkinsv. Northwestern Union Trust Co. of Helena, Montana (1982), Mont

# . -- 

## , 645 P.2d 402, 408, 39 St.Rep. 845, 853,we stated that: "The jury can choose to adopt the testimony offered by one side to the exclusion of the other.The jury is free to disregard all of the expert testimony." Inmost cases, expert testimony does notmandate a result because, by its very nature, expert testimony dealswith opinion evidence. Irrefutable facts need not be established, and most likelywould not be established, through offering expert opinion. Nevertheless,we have sought guidance from other jurisdictions. The cases which bear most directly upon the issue to be here resolved are cases dealing with product identification. In those cases the plaintiff was injured by a defective product and the defendant contended plaintiff had failed to prove that defendantwas related to the product in question. In Smithv. J. C. Penney Company, Inc. (1974), 269 Or. 643, 525 P.2d 1299,plaintiff was badly burned when a gasoline fire ignited her coat. Suit was instituted against the retailer,J. 

### C. Penney Company, and against Bunker-Ramo, alleged by plaintiff to have supplied the fabric used by the manufacturer. A verdict was returned against Bunker-Ramo who then appealed. Plaintiff sought to prove that a Borg trade name on the fabric identified defendant Bunker-Ramo as the supplier. At trial,Rothman, an employee of themanufacturer Roseta, explained that the identification linking BunkerRamo to the fabricwasmeaningless; that from June 2, 1970, forward,Roseta obtained fabric fromboth Mauldin Mills and Bunker-Ramo but that all fabrics, including those obtained fromMauldin Mills,bore the Bunker-Ramo label. Therefore, itwas concluded that itwould be impossible to tell whether the fabric in question came from Bunker-Ramo or from ~auldin Mills. Bunker-Ramo further offered expert testimony from an employee who testified that an analysis of plaintiff's coat showed that the fabric 

### in plaintiff's coat definitely was

### suppliedby Mauldin Mills and not Bunker-Ramo. This evidence

was not contradicted by other expert testimony. On appeal the questionwas whether therewas sufficient evidence linking the coat to defendant, Bunker-Ramo. In sustaining the jury verdict, the Supreme Court of Oregon said: "Or the jury could find that even if itwere manufactured subsequent to June 2, 1970,the notations on the cutting order and the tags proved Roseta used Borg fabrics. They could disbelieve Rothman's explanation that such notationsdid notprove Borg fabricswere used." 525 P.2d at 1302. In commenting on defendant's expert testimony, the Oregon court said: "The jury did nothave to accept the testimony of Mr. Swihartalthough his testimony was not directly contradicted." 525 P.2d at 1303. The Oregon court held that thewitnesswas sufficiently impeached for credibility tobe a jury issue. In Neubauer v. Coca Cola Bottling Company of Chicago (1968), 96 Ill.App.2d 18, 238N.E.2d 437,plaintiff was injured by theputrid contents of a Coca Cola. Plaintiff offered proof that the Coca Cola bottle was a ten-ounce bottle purchased from "Tony's Liquor Store." The owner of Tony's Liquor Store testified that defendanthad never suppliedhim tenounce Coke bottles. The Illinois courtheld that such testimonydid not foreclose a verdict forplaintiff. The court said: "Thedefendant relies,primarily,on the fact that the Coke in questionwas in a ten-ounce bottle; that the store owner and the defendant's employees testified that ten-ounce bottles of Cokewere not sold to the store; that the defendant's witnesses stated that ten-ounce bottles are sold to business entitieswhere there is on-the-premises consumption through coin operated coolers,and to certain other outlets for resale in case lots as leader items. 

# .

# . "Wecannot say that the plaintiff's testimony, and the further evidence that the defendant was the exclusive distributor in the area, andthat Tony's Liquor Storepurchased its Coke from the defendant, is of insufficientprobative value to show that the Coke in question was bottled by the defendant. The direct, positive evidence relative to 

### the ten-ounce bottle was conflicting. From this evidence the jurymight well have determined that a ten-ounce bottle was mistakenly delivered to Tony's Liquor Storeby the defendant. Whatever else itmay have determined on the basis of these facts, there was adequate evidence for a jury to decide that the Coke in question was bottled and sold by the defendant." 238 N.E.2d at 439-440. We think expert testimony offered by defendant, though unrefuted except for impeachment,does not compel ormandate a result for defendant. The jury should be free to weigh that testimony and should be able to accept or reject it. We must here decide whether,viewing the evidence in a lightmost favorable to plaintiff, a jury issuewas created. Plaintiff offered no direct evidence to prove that decedent Larry Raver obtained the projectilewhich injured the plaintiff, from the firing range near Deer Lodge. Whether plaintiff has succeeded in creating a submissible factquestion on proximate cause presents a close question to this Court. The resolution of this question necessarily involves evaluating the role of a trial judge or appellate court in removing

cases from jury consideration. The following language from Karczewski v. Ford Motor Company (N.D. Ind. 1974), 382 F.Supp. 1346,aff'd 515 F.2d 511 (7thCir. 1975), is instructive: "Motions for directed verdict or for judgment N.O.V. areproper only when there is a complete absence of any evidence to warrant submission to a jury. Cities ServiceOil Co. v. Laurey, 403 F.2d 537 (5thCir. 1968). In this regard evidence and all inferencesmust be considered in the lightmost favorable to the party opposing directed verdict. ContinentalAir Lines 

### v. Wagner Morehouse, 401 F.2d 23 (7thCir. 1968). Some courts suggest that only evidence supporting the theories of the party opposing directed verdictmay be considered. Dun & Bradstreetv. Miller, 398 F.2d 218 (5thCir. 1968). Others suggest that directed verdict is proper only where there is a complete absence of theprobative facts to support the

### jury verdict. Boeing Co. v. Shipman, 411 F.2d 365 (5thCir. 1969). The fundamental idea in all this compels a Federaldistrict trial court to exercise the greatest selfrestraint in interfering with the constitutionallymandated processes of jury decision. Themessage is to do so only in the clearest of cases. This ismanifestly not one of them." 382 F.Supp. at 1348. We agreewith the legal philosophy articulatedby Judge Allen Sharp in the Karczewski case. Recently this Court reversed a new trial granted to plaintiff, thereby reinstating

a jury verdict in favor of defendant. In disapproving the trial judge's preemptive orderwe said: "Tohonor this actionwould create a bench supremacyand sap the vitality of juryverdicts." Nelson v. Hartman,CauseNo. 81-467

(decidedAugust 5, 1982), Mont. I P.

### 2d -1 -

### St.Rep. We agreewith the sentiment expressed by Justice Black in a dissenting opinion filed in Galloway v. United States (1943), 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458, (Black, J., dissenting). Mr. Justice Black, in warning of possible constitutional infringements inherent in the directed verdict

or nonsuit, said: "As formyself, I believe that a verdict should be directed, if at all,onlywhen, withoutweighing the credibility of the witnesses, there is in the evidence no room whatever forhonest difference ofopinion over the factual issue in controversy. I shall continue to believe that in all other cases a judge should, in obedience to the command of the Seventh Amendment,not interferewith the jury's function. Since this is amatter of high constitutional importance, appellate courts should be alert to insure the preservation of this constitutional right even though each case necessarily turns on itspeculiar circumstances." 319 U.S. at 407, 63 S.Ct. at 1096, 87 L.Ed. at 1480. Applying the above articulated principle to the facts here,we cannot say that there is a complete absence of proof onproximate causewhich would prevent plaintiff from having a jury resolution of his case. From the factswhich

### we have detailed in this opinion,we hold that a jury of twelve reasonable people, could inferwithout resort to speculation, that theprojectilewhich injured plaintiff

came from the firing rangenear Deer Lodge. The jury was not compelled to accept the testimony of defendants' expert witnesses. Rather, that testimony could properly be weighed against plaintiff's circumstantialproof leaving the trier of fact free tomake the factualdetermination. The jury has spoken,and regardless of how this Courtwould have decided the fact issues,wemust affirm a verdict which we have found to be supportedby substantial credible evidence. PLAINTIFF'S RECOVERY LIMITED? Appellants contend that exposure in this case is limited to applicable insurance limits by section 40-4402,R.C.M. 1947. The statute,adopted in 1963,provides as follows: "Immunitydefenseprohibited when liability insured-reductionof award to policy limits. Whenever an insurer accepts any premium, money, or other consideration from a political subdivision of the state, municipality, or any public body, corporation, commission, board, agency, organization,or other public entity for casualty or liability insurance, neither such insured nor insurer shall raise the defense of immunity from suit in any damage action brought against such insured or insurer,and any agreement in the insurance contractpermitting the defense of immunity is hereby declared void. 

# . . If the courtdetermines that the defendant could have successfullyraised the defense of immunity, and if the verdict exceeds the limits of the applicable insurance, the court shall reduce the amount of such judgment or award to a sum equal to the applicable limit stated in the policy." The 1972 Montana Constitution, Article 11, 

### Section 18, provides: 

### "The state. 

# . .shall have no immunity from suit for injury to a person or property, except asmay be specificallyprovided by lawby a 2/3 vote of each house of the leg

### islature."

### The intent of section 40-4402was to provide forwaiver of sovereign immunitywhere insurancewas carried but to limit suchwaiver to the limits of the liabilitypolicy. The statute itself contemplated the existence of governmental immunity which was abolished by the new constitution. The purpose of the statute ismade clear by the title which provided: "Anactprohibiting the defense of sovereign immunitywhere public bodies are insured;.

# .. and providing for the reduction of awards to policy limits where sovereign immunity defense could have been successfully raised;.

# .." Ch. 240, 

### Laws of Mont. (1963). Sovereign immunity could not be raised as a defense in this case. The statutehas no application. Section 2-9-104,MCA, limiting state liability,became law after this accident but was in effect at time of trial. Appellants contend section 2-9-104,MCA, isprocedural and limitsplaintiff's recovery because it existed when judgment

was rendered. This questionwas disposed of in Dvorak v. Huntley Project Irrigation District (1981), Mont. r 

### 639 P.2d 62, 38 St.Rep. 2176. Damages are substantive and themeasure of damage is governed by law in effect on the date of injury. The DistrictCourt order denying any limitation

onplaintiff's recovery is affirmed. IS THE STATEEXEMPT FROM PAYING INTERESTFOR TWO YEARS? -- 

### Section 2-9-317,MCA, provides: "Nointerest if judgmentpaid within two years. If a governmental entity pays a judgmentwithin 2 years after the day on which the judgment is entered, no penalty or interestmay be assessed against the governmental entity." Plaintiff contends that this statuteviolates Article 11, Section 18, of the 1972Montana Constitution, which we have previously set forth, in that ithas the effect of limiting the plaintiff's recovery.In Leaseamericav. State (1981), Mont

# . , 625 P.2d 68, 38 St.Rep. 398,we held that the constitutionalprovision abolishing governmental immunity did not render invalid the statute exempting the State from paying interest upon a judgment. However,we based that decision upon the fact that the constitutional provisionwas intended to apply only to torts and that since the subject matter of Leaseamerica

v. State was a contract, the constitutional provision had no application. We did not decidewhether the State could be freed frompaying interest on a tort judgment. In the past this Court has treated interest as something apart from the cause of action. In Stanford v. Coram (1903), 28 Mont. 288, 72 

### P. 655, the Court said: 

# ".

. . The judgment is itself a creation of law. Itbears no interest unless granted by legislative enactment. 

# . .A party is not entitled to interest merely because he has a judgment,but solely because the legislature, in its discretion,has said he may charge interest." 28 Mont. at 292, 72 

### P. at 655. This Court has also stated that interest is a damage for delay in payment of the principle obligation. See State Highway Commission

### v. Marsh (1978),175Mont. 460,

We hold that intereston a judgment is not an integral part of the cause of action itself. We find that section 2- 9-317,MCA, does not offend Article 11, Section 18,of the Montana Constitution. We do not here decidewhether the State

can be treated differently from other tort-feasors concerning the subject of damages which are part of the cause of action itself. We rather hold that interest,not being a detriment arising from the wrongful act, can be suspended by statute as

was done here. The judgment of the District Court is affirmed in its entirety.

### We Concur: 

# ?LuL61WWcyea9 Chief Justice

JusticesMr. JusticeJohn Conway Harrison dissenting. Having carefully examined this record, I find that the 

### mst that can be said for the proof offered by the plaintiff is as follows: 1. Large ammunition was fired by the National Guard on the National Guard firing range near Deer Lodge, Montana. 2. Raver had large ammunition in his possession, which exploded and seriously injured the plaint iff

# . The question before this Court was whether or not thisproof made a jury issue; whether the shell could not have come from



### some otherplace? Inmy opinion, the defendant's witnesses established that the projectile that injured the plaintiff, could not have come from the Deer Lodge area because such a projectile had never been fired in that area. However, the jury could disbelieve this testimony and therefore we had to consider whether or not the plaintiff, by anymanner, proved hiscase. In my opinion, there was no testimony in the record linking the exploding projectile to ammunition used by theNational Guard atits firingrange nearDeer Lodge. There 

### is no proximate cause evidence in the record to support the verdict in favor of the plaintiff. Therefore, while it can be argued that the shell could not likelyhave come from any otherplace; if the plaintiff has a case, it is on the basis that it came from some otherplace and is connected somehow 

### to the defendant. The following testimony of James Ficklin offered by respondent falls short of proving that the projectile came from the Deer Lodge area: "Q. How did you know him? A. I worked approximately a year as a security guard during the time I was laid off in the pipe shop and I met Larry prior to that time because my father was head of security and I 

### met Larry through stopping in hisoff

### ice. "Q. At the time this accident occurred, what department were you employed at. A. I was a pipe fitter. "Q. So you would have known Larry Raver before that 

### time; is that correct? A. Yes."Q. Did you ever see a shell inLarry Raver's possession up on the hill? A. I was working maintenance. I'm not sure of the exact date. It seems 

### to me it was a couple weeks prior to when Mick was injured and Larry was killed. I parked at that 

### time 

## -- I parked in a 

### lot in fronton the coal pulverizer which is adjacent to the converter building. I was late for work that day and Larry followed me into the lot and at that time

## -- the conversation is fairly sketchy but he did specify that he had something that he wanted 

### to show me that he found

# . "MR. CHUMRAU: I object, Your Honor, on the basis of hearsay. THE COURT: Overruled. "Q. (By Mr. Skakles) You recall this was approximately 

### two weeks before the accident? A. It seems to me it was just prior to the accident. "Q. Where were you when you talked to him at that time? A. Well, there was an empty 

### lot outside the converter building, outside the maintenance office, and that's where the buildng was that was referred to as the coal pulverizer and this was across the road from thatarea. "Q. When he pulled up behind you and stopped you, did her getout of the car? A. I pulled in and parked my vehicle and when I got out, Larry was outside of his truck but he had his door open. What he was doing was security. When I turned, I walked up and approached the vehicle and when I turned around, I could 

### see some sortof projectile. "Q. Did he say anything when you turned around? "MR. CHUMRAU: I object, Your Honor, on the basis of hearsay. THE COURT: You may testify as to whether 

### or not you had a conversation but not as to anything thatwas said. "A. Could you clarify that? "THE COURT: Did you have a conversation? "A. Yes, 

### we did. "THE COURT: You may not testify as to anything that was said because that would be hearsay. "Q. (By Mr. Skakles) How long did this episode take? A. Relatively short, a few seconds. I was late for work and once I saw what he had, I got a good enough glimpse that I knew it was 

### a projectile and I don't like things like that. I took off forwork. "Q. You entered into a casual conversation; 

### is that correct? A. Not really. "Q. Do you know why he pulled up behind you? A. I got the impression he wanted 

### to show 

### methat object because I do remember him stating 

## -- "MR. CHUMRAU: I object, Your Honor, on the basis of hearsay. THE COURT: You may not testify as 

### to anything said to you, Mr. Ficklin, but only 

### as to the facts that took place and what 

### was done but not what 

### was said. "Q. (ByMr. Skakles) It was a shell? A. Of 

### some sort, yes. "MR. SKAKLES: I have no further questions. THE COURT: You may cross-examine, Mr. Chumrau. CROSS-EXAMAMINATION BY MR. CHUMRAU: 

### "Q. Mr. Ficklin, we had a deposition with you earlier, didn't we, in January of this year? A. Yes, 

### we did. 

### "Q. And you 

### were a pretty good friend of Larry Raver's and Micky Jacques; is that correct? A. Yes. "Q. You 

### came from Washington 

### to testify at thistrial? A. Yes, I did.

"Q

# . Now, do you also remember that this object, thisprojectile

## ,was kind of tarnished brown in color and anywhere from 8 to 12 inches 

## -- A. In my deposition, I believe I stated as close as I could tell it was 8 or 9 inches long. As forcolor, it had a brownishgreenish 

### cast 

### to it. "Q. Brownish-greenish cast? A. That kind of rough 

### cast to it. I believe at the 

### time I said it looked like tarnish 

### or 

## -- that metal 

### or brass picks up. "Q. Mr. Ficklin, as we said, we took your deposition at the end of January and at that time I asked you certain questions and you gave certain answers; is that true? A. Yes. "Q. On that day inJanuary, which was January 3Oth, 1981, 

### was this questions asked of you and this answer given by you? THE COURT: Show it to him first, counsel. A. Yes, I believe I did say that. "Q. The question was: 'You didn't see any green color?' and the answer was, 'Not that I recall.' Isn't it also true that the shell wasbasically a consistent color and therewas no dramatic change in color? I stated it was primarily one color. It was somewhat mottled from what I could see but it 

### was fairly one consistency

# . "Q. Now, Mr. Ficklin, isn't it also true that you haven't heard a specific description of the shell that actually exploded on February 6th; isn't that true?A. No, I haven't."Q. And you were not on duty that day? A. No, I was off on another shift. "Q. So isn't it true that you have no way of knowing the shell that exploded on that day was the same shellyou 

### saw inhis truck before work thatday? A. No, I don't.

IrQ. In other words, it could have been a completely different shell; isn't that true? A. I suppose it could have been. "Q. Isn't it also true thatyou think he got the shell out of the cab that you saw? A. From as near as I could tell, it was somewhere inthe cab of the vehicle

# . "MR. CHUMRAU: I have no futher questions. THE COURT: Any redirect? "MR. SKAKLES: I have no questions. THE COURT: You may stepdown, Mr. Ficklin. "MR. SKAKLES: I callHarry Casey." However, there 

### was excluded testimony which may have made a jury issue for the plaintiff. Here, the plaintiff sought to establish through the testimony of James Ficklin, a co-worker, and Harry Casey

## , another co-employee

## , that the decedent, Raver

## , told each of the 

### two witnesses that he obtained the shells from

an area near Deer Lodge. The shells discussed in those conversations were large projectiles in the decedent's possession weeks or months before the accident. The plaintiffIsproposed testirnony, sought to be introduced through Ficklin and Casey

## , would not have established beyond doubt that the projectile that exploded came from the Deer Lodge area. However, since the shells, which he stated came from the firing range atDeer Lodge,

are similar to the one which was exploded, it is my opinion that

a jury issue on whether the exploding projectile came from the Deer Lodge area would be made on behalf of the plaintiff and, therefore, the crucial issue would become whether 

### to admit the hearsay which was excluded by Judge Boyd. The testimony that was excluded as hearsay was sustained without any reasons given. We do not know from the record whether the trial court considered certain exceptions 

### to the hearsay rule. Had the trial court given its reasons for excluding said testimony, this court could have reviewed thecorrectnessof the trial court's rulingswithout deferring to the trial court's discretion. Here the plaintiff claims that statements of Raver made to both Casey and Ficklin 

### are admissible as declarations against interest. This brings us 

### to interpretation of our Rule 804 of the Montana Rules of Evidence. The applicable portion of the rule reads as follows: 

### "(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant 

### is unavailable as a witness:



### "(3) Statement against interest. A statement which 

### was at the time of 

### its making 

### so far contrary 

### to the declarantts pecuniary or proprietary interest, or 

### so fartended to subject him to civil

### or criminal liability, or to render invalid a claim by him againstanother, or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it 

### to be true. A statement tending 

### to expose the declarant to criminal liability and offered to exculpate the accused 

### is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

"(5)Other exceptions. A statement not specificallycovered by any of the foregoing exceptions but having comparable circurnstancial guarantees of trustworthiness.

### " Rule 804(b) (3) (5)Mont.R.Evid. It is my opinion that it is stretching the rule 

### to say that the proposed testimony constitutes a "statement against interest"

as contemplated by the rule. It is my view of the 

### law that 

### we need not make that determination since I believe that these statements of the decedent should be admitted under subsection (5) other exceptions as set forth above. In attempting to determine the intent of subsection (5), it is necessary 

### to go back to the commission comments. We should note that the Federal Rule 804(b)(5) governs other exceptions of the hearsay rule. The federal rule 

### states: "A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness. If the court determines that (A)the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it 

### is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be sewed by the admission of the statement into evidence.

# .." Rule 804(b)(5), Fed.R.Evid. Here the offered testimony qualifies under the guidelines enunciated specifically by the federal rule. That is 

### to say, the offered testimony is "(1)material, and (2) more probative on the point than any other evidence which the plaintiff could offer, and (3)the ends of justice would be sewed." The plaintiff has no other evidence to take this case to the jury. It certainly would frustrate the cause of justice 

### to deny the admission of those statements. Montana does not have a specific guideline setting forth the federal rule; our drafters of the Rules of Evidence for Montana wished to have the broader rule which would allow the admission of hearsay and which would not fall within the federal guidelines. See comments in "Montana Lawyers Rule Book," atpage

It is obvious in reading the comments of the drafters of our rules of evidence that they wished to have a more liberal hearsay rule which would 

### allow for the admission of evidence not contemplated as admissible under the federal rule. Since the testimony sought to be submitted by the plaintiff here would qualify under the federal guidelines it 

### most certainlyshould be admitted under a more liberal Montana rule. I believe the following factors militate strongly in favor of the admission of testimony: (1)The declarant is deceased and therefore unavailable attrial; (2)there is nothing inherent in the circumstances of the statement which would indicate there was a motive on the part of the declarant 

### to lie about the facts sought 

### to be admitted; (3)the plaintiff cannot establish the fact in any other way; (4) the justice would be frustrated by the exclusion of such essential testimony.For the above reason, I would reverse and remand the case for retrial on the basis that there was insufficient evidence to support a verdict, but, with the admission of the excluded testimony, a jU~Y issue might have been made. In summation, I feel while there is not evidence in the record linking the exploding projectile to the National Guard firing range near Deer Lodge, with the admission of the testimony of Casey and Ficklin, a case might be made. Feeling that it was

error to exclude this testimony, I would remand for retrial.

Mr. JusticeDaniel J. Shea dissenting: I do notbelieve that theevidencewas sufficienttopermit

a jury tofindthat theoffending projectilewas found on the National Guard firingrange ornear the firingrange near Deer Lodge. On theotherhand, had thetrialcourt admitted the testimony of James Ficklin and Harry Casey thatthedecedent told them he had found the shellnear DeerLodge, a jury issue

was made. Justice Harrison correctly concludes that theevidence shouldhave been admitted. Accordingly, I join JusticeHarrison inhisdissent thatthejudgment shouldbe vacated and a new trialordered

## -- with thedirection thattheexcluded testimony of Ficklin and Casey should be admitted. n