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: 

For Appellants: 

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. Justice Frank 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 District Court following 

a jury verdict in favor of plaintiff for $1,390,000.00 and 

from the order entered thereafter on post-trial motions. 

Plaintiff cross-appeals. 

Plaintiff's legs were 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 

from his nearby truck and was holding it in his hands. 

Raver explained to the plaintiff that the shell was a dud 

but that it was designed to "go off" in a certain manner. 

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 of Montana alleging that the decedent Raver 

obtained the shell from the National 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 ammunition where the public had access to it. 

Substantial credibile evidence established a case of negligence 

and defendants do not appeal that determination. Defendants 

contend that plaintiff totally failed to prove that Raver 

obtained the shell in question from the firing range near 

Deer Lodge. 
Two other issues are presented 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-appeal plaintiff challenges the constitutionality of 

section 2-9-317, MCA, which exempts the State from paying 

interest on judgments for a two year period. The sufficiency 

of evidence question must be decided first. 

SUFFICIENCY - OF EVIDENCE 

Plaintiff's case for proximate cause was supported by 

the following: 

(1) Plaintiff's testimony that the shell which caused 

his injuries was approximately eighteen inches long and 

about three inches in diameter; 

(2) Evidence from the National Guard that exercises 

near Deer Lodge had included the firing of a projectile 

about eighteen inches long with 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's widow 

establishing that Raver had traveled by motorcycle in the 

Mt. Powell area and during his motorcycle travels had collected 

what might be termed "junk items"; 

(5) Larry Raver, while demonstrating a large shell to 

a co-employee prior to this accident, stated that he had 

found the shell; 

(6) Other sources of the shell in question were few, 

if any. 

Defendant countered with expert testimony tending to 

prove that the round which exploded and injured the plaintiff 

was a 2.75 inch rocket round with a mark-176 fuse. Defendants' 
evidence further sought to prove that such a rocket round 

had never been fired by the Montana Xational Guard at the 

Deer Lodge firing range. 

The issue is whether plaintiff's circumstantial evidence 

was sufficient to create a jury issue on proximate cause. 

It is incumbent upon the plaintiff to present evidence from 

which a jury might reasonably infer that Larry Raver obtained 

the shell in question from the National Guard firing range 

near Deer Lodge. Circumstantial evidence sufficient to 

prove proximate cause in a civil cause need 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 inference by the trier of 

fact although there are other reasonable inferences which 

might be drawn by that trier of fact. Arterburn v. St. 

Joseph Hospital and Rehabilitation Center (1976), 220 Kan. 

With these rules in mind, we will 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 testimony was given by Gerald Effing, 

retired National Guard Colonel: 

"Q. Did you know anything about the firing area 

down in Deer Lodge? 

"A. Yes, I did. 

"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 '57 and then we went down 

to Townsend in 1958 or about 1961 and then went 

back to Deer Lodge for '62 through '66. 

"Q. What type of guns or what did you fire there? 
"A. Well, the artillery, we had 105 millimeter 

howitzers and we had 155 millimeter howitzers. 

"Q. And the ammunition which the artillery 

fired, was that all live ammunition? 

"A. Yes, it was. 

"Q. First, could you state what the general 

size of a 105 projectile is? 

"A. As far as length? 

"Q. Just generally. 

"A. It would 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 similarity of the shell which injured the plaintiff. 

Mickey Jacques testified: 

"Q. Did you have a chance to look at the shell 

he was holding? 

"A. Yes. 

"Q. And could you describe it for us? 

"A. Yes. It was a foot -- approximately a 

foot and a half long and about three inches 

in diameter." 

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 1969 with the National Guard 

people, had you ever been on the Montana State 

Prison property or forest service property 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. It would have 

been in the fall of 1968. 

"Q. Do you recall where you were when you 

observed these projectiles? 
"A. They were on the face of a grassland 

area leading up towards Deer Lodge Mountain 

and Mount Powell ridge, both on Montana 

State Prison land and at the top of the edge 

of a grass opening where timber began. I 

observed one or more projectiles on National 

Forest lands." 

Defense cross-examination of Charles Fudge revealed the 

following: 

"Q. Have any other incidents come to your 

attention where 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 relate what your recollection 

of those events were? 

"A. Yes. Rob Malinsky, who was an assistant 

of mine at Deer Lodge, came to me 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. I would say it was '77 or '78. 

"Q. Has there been more than one shell you've 

observed out there? 

"A. Yes. 

"Q. How many would you say? 

"A. Oh, about 30." 

Other corroborative evidence was received but the 

testimony quoted above represents the type of proof offered 

by the plaintiff to establish the existence of large shells 

in the area of the Deer Lodge firing range. 
Plaintiff produced through deposition testimony of 

Larry Raver's widow, evidence that Raver traveled in the 

area where 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. Do you have any idea where he rode, Delores? 

"A. Well, I know for a fact that he rode on 

the mountains 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 that bike. 

"Q. Did Larry ever bring anything back with 

him, Delores, when he was on these rides? 

"A. He would bring back little things that he 

found of interest. He might spend an afternoon 

going through an old rambled-down shack and 

anything that he thought was adventurous, he 

would bring it home. 

"Q. How would 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 that he 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 this part of the State. 

"Q. Do you know whether he ever camped or 

fished in any of the mountain lakes up in 

the Racetrack or Mount 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 

objection was sustained. However, the following testimony 

was introduced through James 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 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 was 

late for work that day and Larry followed me into 

the lot. . .he did specify that he had something 

that he wanted to show me 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, I walked up and approached the vehicle and when I turned around, 

I could see some sort of projectile." 

Testimony that Raver found a shell, which may have been the 

one responsible for plaintiff'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 from anyone. 

Plaintiff offered other testimony tending to prove that 

the plaintiff had not traveled widely outside of Montana, 

had not brought the shell back from Vietnam, and generally 

proved the lack of other sources for a projectile similar to 

the one which injured the plaintiff. 

Defendant produced expert testimony, which, if believed, 

established that the round which injured the plaintiff had 

not been fired at the Deer Lodge firing range. It is unnecessary 

to detail this testimony. Plaintiff was able to impeach the 

credibility of defense experts to some extent, but the 

expert testimony remained sufficiently strong to support a 

defense verdict had one been rendered. 

In Thompkins v. 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." 

In most cases, expert testimony does not mandate a result 

because, by its very nature, expert testimony deals with 

opinion evidence. Irrefutable facts need not be established, 

and most likely would 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 defendant was related to 

the product in question. 

In Smith v. 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 the manufacturer 

Roseta, explained that the identification linking BunkerRamo to the fabric was meaningless; that from June 2, 1970, 

forward, Roseta obtained fabric from both Mauldin Mills and 

Bunker-Ramo but that all fabrics, including those obtained 

from Mauldin Mills, bore the Bunker-Ramo label. Therefore, 

it was concluded that it would 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 
supplied by Mauldin Mills and not Bunker-Ramo. This evidence 

was not contradicted by other expert testimony. On appeal 

the question was whether there was 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 it were 

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 

notations did not prove Borg fabrics were 

used." 525 P.2d at 1302. 

In commenting on defendant's expert testimony, the 

Oregon court said: 

"The jury did not have to accept the testimony of Mr. Swihart although his testimony 

was not directly contradicted." 525 P.2d at 

1303. 

The Oregon court held that the witness was sufficiently 

impeached for credibility to be a jury issue. 

In Neubauer v. Coca Cola Bottling Company of Chicago (1968), 

96 Ill.App.2d 18, 238 N.E.2d 437, plaintiff was injured by 

the putrid 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 defendant had never supplied him tenounce Coke bottles. The Illinois court held that such 

testimony did not foreclose a verdict for plaintiff. The 

court said: 

"The defendant relies, primarily,on the fact 

that the Coke in question was in a ten-ounce 

bottle; that the store owner and the defendant's employees testified that ten-ounce 

bottles of Coke were not sold to the store; 

that the defendant's witnesses stated that 

ten-ounce bottles are sold to business entities where there is on-the-premises consumption through coin operated coolers,and to 

certain other outlets for resale in case lots 

as leader items. . . 

"We cannot say that the plaintiff's testimony, 

and the further evidence that the defendant 

was the exclusive distributor in the area, and 
that Tony's Liquor Store purchased its Coke 

from the defendant, is of insufficient probative 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 jury might well have determined that a 

ten-ounce bottle was mistakenly delivered 

to Tony's Liquor Store by the defendant. 

Whatever else it may 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 or mandate 

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 

light most favorable to plaintiff, a jury issue was created. 

Plaintiff offered no direct evidence to prove that decedent 

Larry Raver obtained the projectile which injured the plaintiff, 

from the firing range near Deer Lodge. Whether plaintiff 

has succeeded in creating a submissible fact question 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 (7th Cir. 1975), is instructive: 

"Motions for directed verdict or for judgment 

N.O.V. are proper only when there is a complete 

absence of any evidence to warrant submission 

to a jury. Cities Service Oil Co. v. Laurey, 

403 F.2d 537 (5th Cir. 1968). In this regard 

evidence and all inferences must be considered 

in the light most favorable to the party opposing directed verdict. Continental Air Lines 

v. Wagner Morehouse, 401 F.2d 23 (7th Cir. 

1968). Some courts suggest that only evidence 

supporting the theories of the party opposing 

directed verdict may be considered. Dun & 

Bradstreet v. Miller, 398 F.2d 218 (5th Cir. 

1968). Others suggest that directed verdict 

is proper only where there is a complete absence of the probative facts to support the 
jury verdict. Boeing Co. v. Shipman, 411 

F.2d 365 (5th Cir. 1969). The fundamental 

idea in all this compels a Federal district 

trial court to exercise the greatest selfrestraint in interfering with the constitutionally mandated processes of jury decision. 

The message is to do so only in the clearest 

of cases. This is manifestly not one of 

them." 382 F.Supp. at 1348. 

We agree with the legal philosophy articulated by 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 order we said: 

"To honor this action would create a bench 

supremacy and sap the vitality of jury verdicts." Nelson v. Hartman, Cause No. 81-467 

(decided August 5, 1982), Mont. I 

P. 2d -1 - St.Rep. 

We agree with 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 for myself, I believe that a verdict 

should be directed, if at all, only when, 

without weighing the credibility of the 

witnesses, there is in the evidence no 

room whatever for honest difference of 

opinion 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 interfere with the jury's 

function. Since this is a matter of high 

constitutional importance, appellate courts 

should be alert to insure the preservation 

of this constitutional right even though 

each case necessarily turns on its peculiar 

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 on proximate cause which would prevent plaintiff from 

having a jury resolution of his case. From the facts which 
we have detailed in this opinion, we hold that a jury of 

twelve reasonable people, could infer without resort to 

speculation, that the projectile which injured plaintiff 

came from the firing range near 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 circumstantial proof leaving the trier 

of fact free to make the factual determination. The jury 

has spoken, and regardless of how this Court would have 

decided the fact issues, we must affirm a verdict which we 

have found to be supported by 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: 

"Immunity defense prohibited when liability 

insured-reduction of 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 contract permitting the defense of immunity is hereby declared void. . . If the 

court determines that the defendant could 

have successfully raised 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 as may be specifically provided by 

law by a 2/3 vote of each house of the legislature." 
The intent of section 40-4402 was to provide for waiver 

of sovereign immunity where insurance was carried but to 

limit such waiver to the limits of the liability policy. 

The statute itself contemplated the existence of governmental 

immunity which was abolished by the new constitution. The 

purpose of the statute is made clear by the title which 

provided: 

"An act prohibiting the defense of sovereign 

immunity where 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 statute has 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, is procedural and 

limits plaintiff's recovery because it existed when judgment 

was rendered. This question was disposed of in Dvorak v. 

Huntley Project Irrigation District (1981), Mont. r 

639 P.2d 62, 38 St.Rep. 2176. Damages are substantive and 

the measure of damage is governed by law in effect on the 

date of injury. The District Court order denying any limitation 

on plaintiff's recovery is affirmed. 

-- IS THE STATE EXEMPT FROM PAYING INTEREST FOR TWO YEARS? 

Section 2-9-317, MCA, provides: 

"No interest if judgment paid within two 

years. If a governmental entity pays a 

judgment within 2 years after the day on 

which the judgment is entered, no penalty 

or interest may be assessed against the 

governmental entity." 

Plaintiff contends that this statute violates Article 

11, Section 18, of the 1972 Montana Constitution, which we 

have previously set forth, in that it has the effect of 

limiting the plaintiff's recovery. 
In Leaseamerica v. State (1981), Mon t . , 625 P. 2d 

68, 38 St.Rep. 398, we held that the constitutional provision 

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 provision was 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 decide whether the State could be 

freed from paying 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. It bears 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), 175 Mont. 460, 

We hold that interest on 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 decide whether 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: 

?LuL61 WWcyea9 Chief Justice 

Justices 
Mr. Justice John 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 this proof 

made a jury issue; whether the shell could not have come from 

some other place? 

In my 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 any manner, proved his case. 

In my opinion, there was no testimony in the record linking 

the exploding projectile to ammunition used by the National Guard 

at its firing range near Deer 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 likely have come from any other place; if the plaintiff 

has a case, it is on the basis that it came from some other place 

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 his off 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 in Larry 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 

front on 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 

that area. 

"Q. When he pulled up behind you and stopped 

you, did her 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, I walked up and approached the 

vehicle and when I turned around, I could see 

some sort of 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 that was 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 for work. 

"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 me 
that 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. (By Mr. 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 

this trial? A. Yes, I did. 

" Q . Now, do you also remember that this 

object, this projectile , 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 for color, 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 in January, 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 

was basically a consistent color and there was 

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 shell you saw in his truck before 

work that day? 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 that you think he got 

the shell out of the cab that you saw? A. 

From as near as I could tell, it was somewhere 

in the 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 step down, Mr. Ficklin. 

"MR. SKAKLES: I call Harry 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 plaintiff Is proposed 

tes tirnony, 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 at Deer 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 the 
correctness of the trial court's rulings without 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 far tended to subject him to civil or criminal liability, or to 

render invalid a claim by him against another, 

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 specif ically covered by any of the foregoing except ions 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," at page 

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 certainly should 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 at trial; 

(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 j U~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. Justice Daniel J. Shea dissenting: 

I do not believe that the evidence was sufficient to permit 

a jury to find that the offending projectile was found on the 

National Guard firing range or near the firing range near Deer 

Lodge. On the other hand, had the trial court admitted the 

testimony of James Ficklin and Harry Casey that the decedent 

told them he had found the shell near Deer Lodge, a jury issue 

was made. Justice Harrison correctly concludes that the evidence 

should have been admitted. Accordingly, I join Justice Harrison 

in his dissent that the judgment should be vacated and a new 

trial ordered -- with the direction that the excluded testimony 

of Ficklin and Casey should be admitted. 

n