No. 88-138
IN THE SUPREME COURTOF THE STATEOF MONTANA
1989

RONALD R. STEWART and LYDIAM. STEWART, Plaintiffs and Appellants,-vsBILL FISHER, Defendant and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County ofFlathead, TheHonorable Leif Erickson, Judaepresiding.
COUNSEL OF RECORD:
ForAppellant: RogerM. Sullivanargued;McGar~~ey, Heherlinq, Sullivan andMcGarvey, Kalispell, Montana
ForRespondent:
I. JamesHeckathorn arqued;Murphy, Robinson, Heckathorn and 

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

IrZ Ln 3 0 0 submitted: October 12,1988
0 

# 2 t!Jl" .-I 2 Decided: January 25, 1989 <,u

.I'C

LL 

### a do.z 

### z 

## = LA, 

### ,2 3 Q3 z0 C%3 

# . "2Mr. Justice William E. Hunt, Sr.

### , delivered the Opinion of the Court.

Themobile home owned by Stewarts,theplaintiffs, 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. Stewartsappeal. We affirm theDistrictCourt. The issues raised on appeal are:



### (1) Whether the District Court improperly failed to instruct the jury on the legal standards associated with an "actof 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 amatter of law,to judgmenton the issue ofdefendant's liability for negligence, and whether substantial credible evidence supports the juryverdict. 

### (4) Whether the District Court erred in not granting theplaintiffs' motion in liminewhich sought to preclude the defendant's mention at trial of z collateral source of insurance. Inmid-March of 1985,Lydia Stewartdecided to relocate her mobile home. She contacted Rill Fisher, a professional contractor who setsup and services these typesof 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 thehomeup, Fisher had Lydia Stewart ask the manager of the mobile home park to plow the lot because a layer of snow and icewas 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 spotsexisted. Nonetheless, Fisherproceeded 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 awaterbed was tobe placed in the back of thehome. Fisher and his employeeworked onblocking and leveling until 5:00 p.m. onMarch 30, 1985. An understanding existed between Lydia Stewart and Fisher that Fisherwould 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 calledhim to inform him that the snow and icewas 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 orwas 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 treatmentandmultiple 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,Stewartsasserted 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 reasonablyprudentand skillful contractorwould have acted as defendant did." Bush 

### v. Albert D. Wardell Contractor, Inc. (1974),165 Mont. 312, 317, 528 P.2d 215, 217-18. Theburden ofproving that a defendantbreached 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),159Mont. 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 "unstableground"was the cause of the mobile home falling from its foundationblocks. 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 casebefore the jurywas simplywhether Fisher acted as a reasonably prudent and skillful contractor when settingup the Stewarts' mobile home under thewinterweather conditions. Merely because ice was present when Fisher set up the mobile home,does not necessarily mean that an "actof nature" or "actof God"defense is being raised. We conclude that Fisher did not raise such a defense nor do the facts warrant theuse of it. We hold that in thepresent 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 defendantmay not avoid liabilityby claiming that some other factorhelped 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 theDistrict Courtcommitted reversible errorby 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 amatter 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 theverdict, 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 inherentlyweak and stillbe 

### considered substantial. Wheeler, 757P.2d at 347, 45 St.Rep. at 1176,Local UnionNo. 400 of Intern. Unionv. 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 theprevailingweather 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 aportion 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-ationblocks when only two of the foundation blocks were set on Ice. The evidence also establishes that the lot where themobile home

was to be placed was not covered entirelywith ice,but that the icewas only located in spots. Thus, the jury could have determined that only two of the foundation blockswere set on ice and that therefore Fisher acted as a reasonably prudent and skillful contractor when only two of the nine foundation blockswereplaced 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 thereforehold that substantial credible evidence exists to support the jury verdict and that therefore the Stewartswere not entitled,asa 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 liminewhich 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 notrequest a ruling on thismotion 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),153Mont. 286, 295, 456 P.2d 835, 840. We therefore hold that this issue is notproperly before this Court as a result of the Stewarts' failure to object at the timewhen insurancewas first mentioned during the trial. Affirmed.

We Concur: 

# JJLL+L&:
Justice