No. 81-299 

IN TIiE SUPREI4E COURT OF THE STATE OF ElOlJTANA 

1982 

DENNIS L. JOHNSON, Guardian Ad Litem 

for MARK L. JOHNSON, an infant, 

Plaintiff and Appellant, 

YOUNG plBN ' S CHRISITAN ASSOCIATION OF 

GREAT FALLS, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

John M. McCarvel, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Eoward F. Strause, Great Falls, Montana 

For Respondenk : 

Smith, Baillie & Walsh, Great Falls, Montana 

-- 

Submitted: September 20, 1982 

Decided: October 6, 1982 

Filed: 2~-( I _ 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiff sued the Great Falls YMCA for negligence 

after his son Mark was found submerged in defendant's 

swimming pool. A jury returned a verdict for defendant, and 

plaintiff appeals. We affirm. 

At the outset, we note that appellant's brief does not 

contain a separate statement of issues presented for review, 

as required by Rule 23(a)(2), M.R.App.Civ.P., which makes 

our ferreting out appellant's arguments a more difficult and 

time-consuming task. Counsel are admonished to conform 

their briefs to Rules 23 through 27, M.R.App.Civ.P. 

In May 1977 Mark brought home from his school one of 

defendant's brochures. In this brochure was a description 

of the "Summer Action Club" which was advertised "safe, 

well-supervised and inexpensive." Upon payment of the 

required fee, Mark, age six, was enrolled in the Club and 

his particular class was to run from June 27, 1977, to July 

1, 1977. A day's activities in the Club usually concluded 

with a "free swim" period in defendant's indoor pool, where 

there was no formal instruction but individual informal 

instruction was occasionally given. The shallow and deep 

parts of the pool were divided by a rope. 

Pam Boyle, a certified senior lifeguard at the YMCA, 

gave Mark instructions on how to swim so that he was able to 

dog-paddle the width of the pool without assistance. On 

June 30, 1977, the Summer Action Club members had the usual 

"free swim" period at the end of the day. There were not 

more than twenty-five people in the pool at this time and 

attendant at the pool were five counselors, including Boyle 

and another senior lifeguard. All five were qualified in 
lifesaving. 

The facts surrounding Mark's submersion in the water 

are in dispute. Missy Blais, one of the junior counselors, 

stated by affidavit that she noticed Mark playing with two 

other boys and hanging onto the edge of the pool about two 

feet from the dividing rope, on the deep end side. A short 

time later she was summoned by one of the two boys who told 

her that they had been playing with Mark but he had not come 

up yet. However, there was other testimony indicating that 

Mark had been running and had fallen in. At any rate, Blais 

found Mark submerged in about four and one-half feet of 

water, six to eight inches from the bottom of the pool and 

drifting towards the middle of the pool. 

Blais and a boy pulled Mark from under the water and 

yelled for help. What happened next is also in dispute. 

Blais claimed she carried Mark to the edge of the pool and 

that Nark was given no mouth-to-mouth resuscitation while in 

the water. Boyle, on the other hand, testified that she met 

Blais in the water carrying Mark, grabbed Mark by the hair 

and swam to the side of the pool. Boyle further testified 

that, while still in the water, she gave Mark two quick 

breaths of air, using artificial resuscitation, and Mark 

vomited. After clearing his mouth out, she gave him two 

more quick breaths, and he vomited again. Mark was then 

lifted out of the water where cardio-pulminary resuscitation 

was administered until ambulance personnel arrived. One of 

the ambulance personnel (Cherewatenko) testified that when 

he arrived Mark was unconscious but was breathing and had a 

weak pulse. Mark was then taken to the hospital where he 

stayed for four days, two of which were for observation 
purposes. 

On April 14, 1978, plaintiff filed a complaint 

alleging that defendant was negligent in the care and supervision of Mark. Defendant answered, denying the negligence 

allegations and generally contending that defendant had 

exercised ordinary care in supervising and assisting Mark 

when he became endangered. 

The parties exchanged numerous interrogatories and 

submitted pretrial memoranda. Plaintiff's motion for 

summary judgment on the issue of liability was denied. At 

trial, one of the major issues was the length of time Mark 

was under water. The trial judge admitted, over plaintiff's 

objection, Boyle's testimony regarding an experiment performed by her thirty minutes after the incident. In this 

experiment, she threw a diving ring into the pool at the 

location where Mark was recovered and timed how long it took 

two young boys (one of whom had helped pull Mark from under 

the water) to retrieve it. Boyle concluded from this experiment that Mark was under water for about thirty seconds 

or at the maximum, one to one and one-half minutes. A tenpound diving weight was also thrown in so that it settled 

near the drain in the pool, and the boys were unable to 

retrieve it. From this, Boyle concluded that Mark was not 

on the bottom of the pool when rescued. 

During the trial, plaintiff called psychologists to 

testify that Mark had a learning disability proximately 

caused by the lack of oxygen during his submersion in the 

water. Defendant called the treating physician who testified that no brain damage had occurred. After receiving the 

judge's instructions, which included statements addressing 
the proper standard of care, the jury returned a verdict for 

the defendant. Plaintiff's motion for a new trial was 

denied, and plaintiff appeals. 

The following issues are raised on appeal: 

1. Whether the District Court erroneously admitted 

the testimony regarding the diving ring experiment; 

2. Whether plaintiff is entitled to a new trial 

because of newly discovered evidence or because of defendant's abuse of pretrial discovery; 

3. Whether the District Court erroneously instructed 

the jury on the proper standard of care; and 

4. Whether the District Court erred in failing to 

grant plaintiff's motion for summary judgment on the issue 

of liability. 

Initially, appellant argues that Boyle's testimony 

regarding the diving ring experiment was improperly admitted 

because the test was not conducted under "substantially 

similar" conditions. Appellant further argues that Boyle 

was not qualified as an expert to compare the differences 

between how a human body would react in water as opposed to 

the diving ring. 

Respondent counters that a sufficient foundation was 

laid and relies on Hurly v. Star Transfer Company (1962), 

141 Mont. 176, 376 P.2d 504. In Hurly, we stated that the 

trial court has discretion on whether to admit evidence of 

an experiment and substantial similarity of conditions 

between the experiment and the actual incident is all that 

is necessary. 

The testimony regarding the diving ring experiment was 

properly admitted. This evidence supported the conclusion 
that it took one to one and one-half minutes to retrieve the 

victim from the pool. Thus, no brain damage could have occurred in view of one doctor's expert testimony that for 

brain damage to occur the victim must be deprived of oxygen 

for three to four minutes. Moreover, another doctor 

testified that lack of oxygen for five minutes is required 

before brain damage occurs. 

Also, the circumstances of the experiment here were 

substantially similar so as to allow the admission of 

Boyle ' s testimony. The experiment was conducted thirty 

minutes after the incident and involved the same boy who had 

helped pull Mark out of the water. Although it is obvious 

that a diving ring or diving weight has different dimensions 

than a small boy's body, this evidence was probative to provide the fact finder with an indication of the time involved 

in effecting the rescue. The trial judge did not abuse his 

discretion in allowing evidence of the experiment. Hurly, 

supra. See also, Hanson v. Howard 0. Miller, Inc. (1969), 

93 Idaho 314, 460 P.2d 739 (admission of a braking experiment of a different kind of car than that involved in the 

accident was left to the sound discretion of the trial 

court). 

Appellant next argues that he is entitled to a new 

trial because of newly discovered evidence and defendant's 

pretrial discovery abuses. Regarding the pretrial discovery 

abuse, appellant argues that defendant was allowed to add 

four new witnesses the day before the trial, including 

Boyle. According to appellant, defense counsel knew of 

Boyle's whereabouts (from an undated letter received by 

defendant describing the incident) but failed to inform 
plaintiff of her addrsss in violation of defendant's duty to 

supplement its interrogatory answers. 

Respondent admits that it did not provide Boyle's 

Nebraska address to plaintiff but contends that it would 

have been a useless act because the address was outdated and 

would not have led to contact with Boyle anyway. Respondent 

argues that it had received a phone call that Boyle had come 

to Great Falls on her own during her 1980 Christmas vacation 

(the trial started January 7, 1981) and this was the first 

time that defendant knew of Boyle's whereabouts. Respondent 

also claims that appellant abused the discovery process 

because ambulance employee Cherewatenko was never identified 

in interrogatory answers as being an expert, was never identified in appellant's pretrial memorandum as being a witness, and Cherewatenko would not discuss the case with 

defense counsel. Cherewatenko later testified as an expert 

in the case. 

Neither counsel's action in this regard is commendable 

as both were lax in keeping the other party informed of 

pretrial developments and in supplementing answers to interrogatories. The District Court did not commit reversible 

error by allowing Boyle to testify. Appellant strenuously 

objected to her testimony because she was going to testify 

that Mark could swim whereas appellant had previously been 

under the impression that he could not. However, Boyle was 

intimately involved in the incident. Her testimony was 

probative of the matter surrounding the resuscitation of 

Mark and the amount of time that he was deprived of oxygen. 

Moreover, plaintiff interviewed Boyle prior to trial 

and rejected offers of a continuance by defendant and the 
trial judge. Under the circumstances here, plaintiff should 

have requested a continuance, Kipp v. Wong (1974), 163 Mont. 

476, 517 P.2d 879, and Hill v. McKay (1908), 36 Mont. 440, 

33 P. 345. Plaintiff argued against such continuance, 

submitted his case to the jury and, after an adverse jury 

verdict, seeks a new trial. Plaintiff is not entitled to 

have his cake and eat it too. 

Appellant also argues for a new trial on the ground of 

newly discovered evidence, i.e., Missy Blais was located in 

Portland, Oregon, af ter the trial and an af f idavit obtained 

from her differed in several aspects from Boyle's testimony. 

Although a counteraffidavit of Blais (submitted by defense 

counsel to correct some of the statements in Blais's 

original affidavit) was filed, it still appears that Blais 

did not remember handing Mark to Boyle or Boyle giving Mark 

mouth-to-mouth resuscitation in the pool. 

The statute describing grounds for a new trial states 

in pertinent part: 

"Grounds for new trial. The former verdict or other decision may be vacated and 

a new trial granted on the application of 

the party aggrieved for any of the following causes materially affecting the 

substantial rights of such party: 

"(4) newly discovered evidence material 

for the party making the application 

which he could not, with reasonable diligence , have discovered and produced at 

the trial; . . . " Section 25-11-102, 

MCA. 

The statute requires that newly discovered evidence could 

not have been discovered with reasonable diligence. In his 

brief, plaintiff does not deny that one of plaintiff's 

witnesses, Lisa Galligos (who was called at trial by plain- 
tiff and was listed as one of the plaintiff 's witnesses on 

both pretrial orders) knew where Blais was all along. A 

si~nple inquiry by plaintiff of one of its own witnesses 

would have been sufficient. Further, in one of defendant's 

answers to plaintiff's interrogatories, Blais was described 

as having pulled Mark from under the water and having taken 

him to the edge of the pool. This established Blais as a 

crucial witness. Had plaintiff interrogated his witnesses 

more thoroughly prior to trial and during preparation of his 

case, he would have discovered the whereabouts of Blais. 

Appellant next argues that the District Court erroneously instructed the jury on the proper standard of care by 

refusing to give three proposed instructions, which specifically stated that a greater degree of care is owed to a 

child than to an adult. The court sustained objections to 

these instructions on the grounds that they did not state 

the law in Montana as reflected in Henroid v. Gregson Hot 

Springs (1916), 52 Mont. 447, 158 P. 824. The court instead 

gave appellant's Instruction No. 22, which read: 

"When a person undertakes the control of 

supervision of a child, he has the duty 

to use reasonable care to protect the 

child from injury. Although such person 

is not an insurer of the safety of the 

child, he is required to use reasonable 

care commensurate with the reasonable 

foreseeable risk of harm to which the 

child might be subjected while under his 

control and supervision." 

Henroid appears to be the sole Montana case discussing 

a swimming pool operator's standard of care owed to a child. 

In Henroid a thirteen-year-old boy who apparently could swim 

(although plaintiff alleged otherwise) drowned in defendant's pool. In affirming the trial court's granting of a 

nonsuit, this Court said: 
"Plaintiff must have had some purpose, 

however, in alleging that Leo Henroid 

could not swim and in attempting to prove 

the fact, and that this fact was known to 

defendant. It must have been the purpose 

of this allegation to fix the measure of 

defendant's duty in this particular 

instance. That duty is to be measured by 

the standard of ordinary care (Phillips 

v. Butte, etc., Fair Ass'n, 46 Mont. 338, 

127 Pac. 1011, 42 L.R.A. [N.S.] 1076), 

-- and ordinary care -- is care proportionate 

to the risk to be apprehended and guarded 

against (Bourke v. Butte, E. & P. Co., 33 

Mont. 267, 83 Pac. 470). . . 

"Other things being equal, the defendant 

would owe a nigher degree of care to the 

boy whom it knew could not swim, and who 

was permitted in the pool, than to one 

whom it knew could swim. In other words, 

the ability to swim or the lack of it 

would be an important factor in the sum 

of all the circumstances which determine 

what is and what is not ordinary care." 

(Emphasis added.) 52 Mont. at 455-456, 

158 P. at 825. 

This statement in Henroid appears to be in keeping 

with other pronouncements on the subject. In Gault v. 

Tablada (S.D. Miss. 1975), 400 F.Supp. 136, aff'd, 526 F.2d 

1405, a six-and-one-half-year-old boy (approximately the 

same age as Mark here), who could dog paddle a little but 

could not swim, drowned in defendant's motel pool. In 

discussing the standard of care owed to the boy in 

Mississippi, the court stated: 

"In Mock v. Natcnez Garden Club, 238 

Miss. 377, 92 So.2d 562 (1957), 8 

k.L.R.2d 1315, the Mississippi Supreme 

Court held that the owner or operator of 

a bathing resort and swimming pool owed a 

duty to use ordinary or reasonable care 

for the safety of patrons or to guard 

against injury to them, and must exercise 

reasonable care and diligence to provide 

a reasonably safe place or accommodations 

and maintain the premises in a reasonably 

safe condition for their use. This duty 

varies according to the risk involved and 

-- the age - of the invitees on the premises, 

and the defendants were bound to consider 

whether the pool area, although perhaps 
safe enouah for adult auests. Dresented 

aEY------------------------- reasonably avoidable dan2ers ------ to 

children of tender ase. - Mock v. Natchez 

Garden Club, supra at 564. See also, 

City of ~acksonvllle v. Stokes, 74 So.2d 

278 (Fla. 1954). Thus, the known presence 

- of [decedent], as well as various other 

children who were guests at the defendants' motel, imposed a duty of care upon 

the defendants commensurate with the 

facts and circumstances then existing. 

Waugh v. Duke Corporation, 248 F.Supp. 

626 (M.D. N.C. 1966) . . . " (Emphasis 

added.) 400 F.Supp. at 139. 

The court also noted that in Mississippi, as in Montana, a 

child under seven cannot be contributorily negligent, 400 

F.Supp. at 140. See, Burns v. Eminger (1927), 81 Mont. 79, 

261 P. 613, and Graham v. Rolandson (1967), 150 Mont. 270, 

In Bailey v. YMCA (1965), 112 Ga.App. 684, 146 S.E.2d 

324, a nine-year-old boy who could not swim drowned in 

defendant's swimming pool, and there, as here, no one saw 

the boy go under the water or knew exactly how he had 

entered the water. In affirming the jury verdict for 

defendant and denying plaintiff's motion for a new trial, 

the court said: 

". . . children of tender age . . . may 

be entitled to a greater degree of care 

from adults toward- them, pr6portioned to 

their ability to foresee and avoid perils 

which may be encountered; but regardless 

of the age or capacity of the injured 

person, if there is no breach of legal 

duty on the part of the defendant toward 

that person, there can be no legal liability. Augusta Amusements, Inc. v. 

Powell, 93 Ga.App. 752, 754, 92 S.E.2d 

720." (Emphasis added.) 146 S.E.2d at 

337. 

The jury was properly charged in the instant case by 

appellant's Instruction No. 22. Although it does not specif ically state that a greater duty is owed, it expresses the 

idea that the reasonable care to be accorded the plaintiff 
by defendant must be commensurate to the foreseeable risk of 

harm, i.e., the child's age and maturity are factors to be 

taken into account in determining what risks are reasonably 

foreseeable. Henroid, Gault and Bailey, supra, all bear 

this out. 

Moreover, plaintiff's counsel fully argued to the jury 

the proper standard of care and pointed out the particulars 

of the alleged negligence of Boyle and the defendant. 

Plaintiff's substantial rights were not prejudiced by the 

failure to give the requested instructions. Associated 

Agency of Bozeman, Inc. v. Pasha (1981), - Mon t . , 625 

P.2d 38, 38 St.Rep. 344. 

Lastly, appellant argues that the District Court erred 

in failing to grant plaintiff's motion for summary judgment 

on the liability issue, relying principally on the cases 

cited as authority in his rejected jury instructions. We do 

not agree. There were a number of genuine issues of material 

fact presented by defendant, thereby precluding plaintiff's 

motion for summary judgment on the issue of liability. Rule 

56(c), M.R.Civ.P. For example, there was a factual question 

of whether defendant had provided a sufficient ratio of 

lifeguards to pool users according to water safety procedure. There was also a factual question, raised by the 

complaint and an expert's affidavit, as to how long Mark was 

under water which, of course, is the nub of plaintiff's 

case. Furthermore, there was a factual question of whether 

defendant had properly instructed its patrons in pool use in 

accordance with accepted water safety standards. By virtue 

of these and other factual questions, we hold that the District Court did not err in failing to grant plaintiff's 
motion for summary judgment on the liability issue. 

Affirmed. 

3~4 Q# 9~ qJ42.p Chief Justice 

We concur: 

/7 
Mr. Justlce John C. Sheehy, dissentlny: 

The first ground upon which I would reverse and grant 

a new trial of this cause is the impropriety of admitting 

evidence of the experiment by Pam Boyle, and her opinion 

based upon that experiment as to the length of time that 

hark Johnson was under water, deprived of oxygen. 

Pam Boyle's testimony of the near drowning incident 

beglns witn herself being in the pool hanging onto the edge, 

approximately half way between the two ends on the side of 

the pool away from the boys' locker room. While she was 

there a young boy swam up to her and informed her that a boy 

had drowned. She then saw Missy Blais and another boy 

bringing Mark Johnson from the water somewhere in the middle 

oi the pool. She went to them, took Mark Johnson from Missy 

Blals, and immediately started to administer mouth-to-mouth 

resuscitation. She stated, probably truthfully, that she 

hdd saved MarK Johnson's life. 

After the incident, Pam staged a series of races among 

several boys involving a rubber ring and a ten-pound weight 

tor the purpose of determining how long Mark Johnson was 

under tne water. According to her testimony, these tests 

demonstrated that Mark was under water only thirty seconds. 

She was allowed to testify to that conclusion as a fact. 

Based on her observation, ner opinion as to the result 

of the experiment, limiting Mark's underwater experience to 

tnirty seconds, was clearly irrelevant. She did not establlsh, and no other witness established, how long Mark 

Johnson had been under the water before he was discovered 

and brought to the surface by Ms. Blais and the boy. At the 

most the races or games, conducted after the incident, only 
showed how long it would take boys, diving and swimming, to 

retrieve a rubber ring or a diving bell from under the 

water. As a matter of fact, the boys were unable to 

retrieve the diving bell. 

It was, of course, irnpossible to establish that Pam 

Boyle was an expert as to how long Mark was under the water 

prior to being brought to the surface. It takes actual 

observation, not expertise, to establish such a fact. - She 

did not have the actual observation. 

The rule applicable to the admissibility of the 

opinion of an expert witness in Montana, until now, has been 

that if his opinion is unsupported by the details of his 

nledsurements or observations, both as to the data upon which 

they are based and the manner of reaching the result, his 

opinion is not competent or relevant. When he gives the 

details it is a question of law whether his method was 

correct, and a question of fact as to whether his result was 

correct. Irion v. Hyde (P940), 110 Mont. 570, 105 P.2d 666. 

The rule in Irion applies with special force in this case: 

"A witness, of special knowledge or skill 

on a subject outside of the ordinary 

realm of human experience, may be permitted to state his inference, from facts 

observed by him, as to matters connected 

with his specialty, not only because of 

the frequent difficulty of communicating 

the facts to the jury but also because, 

even if the facts could be fully laid 

before them, they would not possess the 

special knowledge or training necessary 

to coordinate and weigh the facts so as 

to draw the correct and proper inference 

rherefrom. Such a witness is frequently 

termed an expert, but this is inaccurate, 

for the skilled witness testifies to the 

result of his own observation, and 

occupies tne same position as any other 

witness except that within certain lines 

ne possesses a superior knowledge which 

enables him to understand, as one without 

such special knowledge could not, what he 
has observed, although he may also be 

competent to testify as an expert upon 

hypothetically stated facts. . . 

It. . . the judgment of an expert, when 

opposed to undisputed facts and the dictates of common sense, will not support a 

verdict, and the court should not-permit 

the iurv to be influenced bv evidence on 

which they could not, within the laws of 

correct reasoning, make the finding. . . 

"'l'he reasons for rejecting a conclusion 

become stronger where it is apparent that 

it cannot reasonably be reached on the 

facts which are claimed to support it, 

where such facts are themselves the 

result of inference, or where the conclusion is not a necessary one. . .I1 110 

Mont. at 577-578, 105 P.2d at 671. (Emphasis added; citations omitted.) 

'The evidence of this professed expert, not being based 

upon her knowledge, observation, or an inference of fact 

reasonably derived from other facts, was compounded when her 

opinion as to length of time that Mark Johnson was under 

water was used as a basis by defense medical witnesses to 

testify that he could not have suffered oxygen deprivation. 

Her opinion flies in the face of her observed condition of 

the boy following his rescue, that his lips were blue, and 

of an independent witness, who observed that the boy's face 

was blue. In fact, in a later-discovered letter that Pam 

Boyle herself had written to defense counsel, she stated, 

"Mark's face was very blue and I got no response after 

slapping his face." 

The staged races among the boys could never be a basis 

for her opinion as to how long Mark was under water when no 

observation existed to support the conciusion given. 

Secondly, this case should be reversed because of the 
falltire by defense to comply with pretrial discovery rules. 

On the day before the trial, counsel for defense moved 

the court to add four witnesses to the list of proposed witnesses in the trial. One of these names, Pam Boyle, turned 

out to be a critical witness in the cause. The other three 

witnesses had not been identified to plaintiff's counsel in 

any pretrial discovery beforehand, although seasonably 

plaintiff had requested in interrogatories the names and 

addresses of all witnesses having any knowledge of the 

pertinent facts of the incident. 

The situation with Pam Boyle is particularly disturbing. Her address given by the defense in their response to 

the interrogatories was her parent's home, but in fact this 

was not her true address. It was discovered at the time of 

the motion for new trial, when the aefense was required by 

the court to "cough-up" a letter it had received from Pam 

Boyle before the trial, that defense counsel did in fact 

have her address, and that she was residing in Omaha, 

Nebraska. Miss Boyle wrote a letter to the law firm, in 

which she stated some facts that are certainly now at 

variance with what she testified at the trial. In her 

letter she states: 

". . . I was somewhere in the shallow end 

when Mark requested permission to go to 

the bathroom. Permission was given. 

"A short time later (I have no idea of 

tne exact time) Joey and another boy were 

shouting at me across the pool and Missy, 

a junior counselor, brought Mark to me. 

I was by the side, somewhere between the 

three and five foot mark on the right 

side of the pool. 

"Mark's face was very blue and I got no 

response after slapping his face. . ." 

It wiil be seen from the contents of her letter to 
counsel, apparently some period of time before the trial, 

that Pam Boyle had no basis upon which she could estimate 

the period of time that Mark Johnson had been under water. 

because of the failure of defense counsel, whether purposely 

or inadvertently is unimportant, to divulge the true address 

in response to the interrogatories of Pam Boyle, plaintiff 

was deprived of this most important information. 

Plaintiff, immediately before trial, made a motion - in 

limine that Pam Boyle and the other three witnesses not be 

allowed to testify because of the failure of defense counsel 

to abide by the pretrial discovery rules. The court refused 

that motion, and offered instead to allow interviews of the 

witnesses on the day of the trial, and offered to continue 

the cause if necessary. The offer to continue the cause was 

declined several times by plaintiff's counsel, they relying 

on their belief that under Montana law, the testimony of the 

witnesses should not be allowed at all because of the 

failure of defense counsel to provide the pertinent information in accordance with pretrial discovery rules. 

The Montana Rules of Civil Procedure provide a 

posltive duty on the part of the party responding to interrogatories to supplement the same to include information 

thereafter acquired. Rule 26(e)(2), M.R.Civ.P., provides: 

"A party is under a duty seasonably to 

amend a prior response if he obtains 

information upon the basis of which (A) 

he knows that the response was incorrect 

when made, or (B) he knows that the response though correct when made is no 

longer true and the circumstances are 

such that a failure to amend the response 

is in substance a knowing concealment." 

(Emphasis added. ) 

At the time of the receipt by defense counsel of the 

letter from Pam Boyle, mailed from Omaha, Nebraska, the 
detense counsel knew that the response that they had made 

respecting her address was incorrect. Under the language of 

our Rule 26, whether their failure to disclose the correct 

address was purposeful or inadvertent, the legal effect is 

that it is a "knowing concealment." The same rule applies 

to the witnesses which were not divulged until the day 

before trial, other than Pam Boyle. 

In Sanders v. Mount Haggin Livestock Company (1972), 

16c) Mont. 73, 500 P.2d 397 (Haswell, J., and Daly, J., 

dissenting), this Court, on nearly the same details, held it 

reversible error for a trial court to allow witnesses to 

testify whose location had not been made known to the other 

party : 

"This situation justified and required 

the exclusion of the witnesses1 testimony. A motion to exclude and disallow 

any testimony of these witnesses was 

made, supported, and elaborated upon with 

a complete statement of the surrounding 

facts. The trial court was in error to 

refuse this sanction for failure to make 

proper and accurate responses to interrogatories that were designed to elicit 

exactly the information which was withheld." 160 Mont. at 82, 500 P.2d at 402. 

It is not an answer to this issue that plaintiff's 

counsel themselves never identified in interrogatory answers 

an expert, Vern Cherewatenko, as being an expert or a witness. Two wrongs do not make a right, and we are not here 

considering whether prejudice resulted to the defense from 

the failure to divulge information about Cherewatenko. The 

issues should easily have been resolved at the District 

Court level by an evenhanded ruling from the District Court 

that the undisclosed witnesses presented by either party 

would not be allowed to testify when the pretrial discovery 

process was abused. 
It is my belief, since I subscribe to full disclosure 

of law and facts at all stages of the trial, that the 

purpose of .the Rules of Civil Procedure is best served when 

lawyers are fully candid with fellow lawyers and the courts. 

By insisting on the integrity of discovery under the rules, 

we open up the facts, encourage settlements, and avoid 

protracted litigation. These were the promises held out by 

members of this Court when they came to the legislature in 

1943 to get authority to adopt the federal rules of procedure for Montana. Since Sanders v. Mount Haggin, supra, 

this Court has shown some spine in insisting on the integrity of the discovery process. Owen v. F. A. Buttrey 

Co. (1981), - Mont. , 627 P.2d 1233, 38 St.Rep. 714; 

Swenson v. Buffalo Building Co. (1981), - Mont. , 635 

P.2d 978, 38 St.Rep. 1588; Kuiper v. District Court (1981) 

- Plont. , 632 P.2d 694, 38 St.Rep. 1288. There is no 

reason to step back now from requiring forthright candor in 

the discovery process. 

L' 

Mr. Justice Frank B. Morrison, Jr.: 

I concur in the foregoing dissent of Mr. Justice 

Sheehy.