No. 88-138 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

RONALD R. STEWART and LYDIA M. STEWART, 

Plaintiffs and Appellants, 

-vsBILL FISHER, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif Erickson, Judae presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Roger M. Sullivan argued; McGar~~ey, Heherlinq, Sullivan 

and McGarvey, Kalispell, Montana 

For Respondent: 

I. James Heckathorn arqued; Murphy, Robinson, Heckathorn 

and Phi .l.lips, Kalispel.!_, Montana 

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submitted: October 12, 1988 

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.-I 2 Decided: January 25, 1989 

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Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

The mobile home owned by Stewarts, the plaintiffs, fell 

off its foundation blocks approximately one week after 

Fisher, the defendant, had set up the mobile home in a new 

location. The jury empaneled in the District Court of the 

Eleventh Judicial District, Flathead County, returned a 

verdict on November 25, 1987, finding in favor of Fisher. 

The District Court denied. Stewarts' motion for a judgment 

notwithstanding the verdict or, in the alternative, a new 

trial. Stewarts appeal. We affirm the District Court. 

The issues raised on appeal are: 

(1) Whether the District Court improperly failed to 

instruct the jury on the legal standards associated with an 

"act of nature" defense. 

(2) Whether the District Court improperly failed to 

instruct the jury that more than one factor may cause an 

injury and that the defendant may not avoid liability by 

claiming that some other factor helped cause the injury. 

(3) Whether the plaintiffs were entitled, as a matter 

of law, to judgment on the issue of defendant's liability for 

negligence, and whether substantial credible evidence 

supports the jury verdict. 

(4) Whether the District Court erred in not granting 

the plaintiffs' motion in limine which sought to preclude the 

defendant's mention at trial of z collateral source of 

insurance. 

In mid-March of 1985, Lydia Stewart decided to relocate 

her mobile home. She contacted Rill Fisher, a professional 

contractor who sets up and services these types of dwellings. 

Fisher agreed to do the work, which included leveling, 

blocking, and skirting the mobile home at its new location. 
On March 30, 1985, Fisher transported the Stewarts' 

mobile home to its new location. Before setting the home up, 

Fisher had Lydia Stewart ask the manager of the mobile home 

park to plow the lot because a layer of snow and ice was in 

the area where the mobile home was to be placed. After the 

area was plowed, Fisher testified that among the mixed dirt 

and gravel, ice spots existed. Nonetheless, Fisher proceeded 

to setup the mobile home on the new location. Fisher 

testified that he used one more set of blocks than usual 

because the lot sloped and a waterbed was to be placed in the 

back of the home. 

Fisher and his employee worked on blocking and leveling 

until 5:00 p.m. on March 30, 1985. An understanding existed 

between Lydia Stewart and Fisher that Fisher would return to 

re-level the home and put the skirting up, however, the 

testimony differs as to whether Fisher would return on his 

own or whether he would return when Lydia Stewart called him 

to inform him that the snow and ice was gone from the yard. 

Eight days later, on April 7, 1985, at approximately 

11:30 p.m., the Stewarts' mobile home fell off its foundation 

blocks. The mobile home itself sustained major damage and 

was later sold to a local wrecking yard for salvage value. 

Likewise, a large amount of the Stewarts' personal property 

inside the mobile home suffered either serious damage or was 

destroyed. In addition, following the accident, Lydia 

Stewart, who was alone inside the mobile home when it fell-, 

began to suffer from a psychological. disorder requiring 

psychiatric treatment and multiple hospitalizations. 

The first issue raised on appeal is whether the 

District Court improperly failed to instruct the jury on the 

legal standards associated with an "act of nature" defense. 

At trial, Stewarts asserted that Fisher was negligent in 

his duty of setting up their mobile home. The issue to be 

determined in such an action is "whether a reasonably prudent 
and skillful contractor would have acted as defendant did." 

Bush v. Albert D. Wardell Contractor, Inc. (1974), 165 Mont. 

312, 317, 528 P.2d 215, 217-18. The burden of proving that a 

defendant breached his duty by not exercising reasonable care 

is on the plaintiffs. See, e.g., State -- ex rel. Burlington 

Northern, Inc. v. District Court of First Judicial Dist. 

(1972), 159 Mont. 295, 301, 496 P.2d 1152, 1155-56. 

Stewarts then argue on appeal that Fisher, instead of 

simply denying negligence, relied upon an "act of nature" 

defense when asserting that he was not liable for their 

mobile home falling off its foundation blocks. In 

particular, Stewarts point towards Fisher's testimony where 

he stated, for example, that "unstable ground" was the cause 

of the mobile home falling from its foundation blocks. The 

Stewarts therefore contend that the District Court erred bv 

not instructing the jury on the legal standards that a 

defendant must meet before asserting this defense. We 

disagree. The case before the jury was simply whether Fisher 

acted as a reasonably prudent and skillful contractor when 

setting up the Stewarts' mobile home under the winter weather 

conditions. Merely because ice was present when Fisher set 

up the mobile home, does not necessarily mean that an "act of 

nature" or "act of God" defense is being raised. We conclude 

that Fisher did not raise such a defense nor do the facts 

warrant the use of it. We hold that in the present case, the 

District Court did not err by refusing to instruct the jury 

on the legal standards associated with an "act of nature" 

defense. 

The second issue raised on appeal is whether the 

District Court improperly failed to instruct the jury that 

more than one factor may cause an injury and that the 

defendant may not avoid liability by claiming that some other 

factor helped cause the injury. 
Stewarts argue that if the damage to their mobile home 

was the result of two concurring causes, one being the 

negligence of the defendant and the other being an act of 

nature, then the District Court committed reversible error by 

not instructing the jury on multiple factor causation. Tn 

light of our holding that an act of nature defense is not 

applicable in this case we hold that the District Court did 

not err when it refused Stewarts' proposed instruction on 

multiple factor causation. 

The third issue raised on appeal is whether the 

plaintiffs were entitled, as a matter of law, to judgment on 

the issue of defendant's liability for negligence, and 

whether substantial credible evidence supports the jury 

verdict. 

When substantial evidence exists to support the jury 

verdict, then this Court will sustain the District Court's 

action denying a motion for directed verdict. Gunnels v. 

Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 

1495. When determining whether substantial evidence exists 

to support the verdict, this Court reviews the evidence in a 

light most favorable to the prevailing party. Wheeler v. 

City of Bozeman (Mont. 1988), 757 P.2d 345, 347, 45 St-Rep. 

1173, 1176. The evidence may be inherently weak and still be 

considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep. 

at 1176, Local Union No. 400 of Intern. Union v. Bosh (~ont. 

1986), 715 P.2d 36, 42, 43 St.Rep. 388, 394. In addition, 

when conflicting evidence exists, the credibility and weight 

given to the conflicting evidence is within the province of 

the jury. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176. 

In the present case, the jury had to determine whether 

a defendant acted as a reasonably prudent and skillful 

contractor. The jury had available to it all the evidence 

presented at trial, including the testimony of three 

professionals regarding the proper standards and procedures 
for setting up mobile homes under winter conditions; the 

procedures Fisher used in setting up Stewarts' mobile home; 

and the prevailing weather conditions. After being presented 

with the evidence at trial, the jury found in favor of 

Fisher. 

The Stewarts argue that the uncontradicted testimony 

establishes that at least a portion of the lot onto which the 

Stewarts' mobile home was moved was still covered with ice 

after it had been plowed and that Fisher was aware of this 

fact; that it is a violation of accepted standards and 

procedures to set foundation blocks on top of ice rather than 

clearing out the ice and setting the foundation block on the 

ground; and that at least two of the foundation blocks were 

set on ice. However, testimony was also presented that the 

mobile home would not have fallen off its found-ation blocks 

when only two of the foundation blocks were set on Ice. The 

evidence also establishes that the lot where the mobile home 

was to be placed was not covered entirely with ice, but that 

the ice was only located in spots. Thus, the jury could have 

determined that only two of the foundation blocks were set on 

ice and that therefore Fisher acted as a reasonably prudent 

and skillful contractor when only two of the nine foundation 

blocks were placed on ice. 

As we have previously held, the evidence may he 

inherently weak and still be considered substantial and the 

credibility and weight given to conflicting evidence is 

within the jury's province. Wheeler, 757 P.2d at 347, 45 

St.Rep. at 1176. We therefore hold that substantial credible 

evidence exists to support the jury verdict and that 

therefore the Stewarts were not entitled, as a matter of law, 

to judgment on the issue of defendant's liability for 

negligence. 

The last issue raised on appeal is whether the District 

Court erred in not granting the plaintiffs' motion in limine 
which sought to preclude the defendant's mention at trial of 

a collateral source of insurance. 

The Stewarts' presented the court with a motion in 

limine during pretrial conference, seeking to preclude the 

defendant's mention at trial of a collateral source of 

insurance. The District Court reserved ruling on this 

motion. The Stewarts did not request a ruling on this motion 

before the case went to trial, but more importantly, the 

Stewarts did not object, nor present the District Court with 

any motions for mistrial or to strike the alleged testimony 

when insurance was first mentioned by the defendant at the 

trial. Failure to object or request corrective action after 

the mentioning of insurance by the defendant constitutes a 

waiver of objection on this issue. Rasmussen v. Sihert 

(1969), 153 Mont. 286, 295, 456 P.2d 835, 840. 

We therefore hold that this issue is not properly before 

this Court as a result of the Stewarts' failure to object at 

the time when insurance was first mentioned during the trial. 

Affirmed. 

We Concur: 

JJLL+L&: 

Justice