No. 12667 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1974

TAFFORD E. OLTZ

## , Plaintiff and Appellant,

TOYOTA MOTOR SALES, U.S.A., Inc., and TOYOTA MOTOR COMPANY, LTD. 

## , Defendants and Respondents.
Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: ForAppellant: Bennett and Bennett, Bozeman, Montana Lyman H. Bennett, 

### Jr., argued, Bozeman, Montana For Respondents: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Charles F. Angel argued, Bozeman, Montana

Submitted: November 20, 1974 Decided : 

# %B 18

## 1975Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This 

### is an appeal from a summary judgment and order of the district court, Gallatin County. This action isa sequel to Brandenburger v. Toyota Motor Sales, 

### U.S.A., Inc., decided by this Court on August 

### 7, 1973, and reported in 

# - Mont

# . -9 513 P.2d 268, 

### 30 St.Rep. 808. In his complaint plaintiff Tafford Oltz sought damages for personal injuries and property damage suffered inthe same accident involved inBrandenburger. Recovery was predicated on an alleged breach of implied warranties of merchantability and fitness for a particular purpose, negligence, and strict liability in tort. The actionwas submitted to the court on the pleadings, the transcript of the Brandenburger case and this Court's decision in that case. Both parties requested summary judgment, and the court granted defendants'motion. Defendants Toyota argue that thejury verdict inBrandenburger finding Oltz guilty of gross negligence which contributed to 

### rand en burger's death 

### isresjudicata on the question of whether Oltz
was guilty of any negligent actwhich contributed tothe accident. It 

### is plaintiff's position that a judgment in favor of a plaintiff inan action against two or more defendants isnot resjudicata or conclusive as to the rights and liabilities of the defendants among themselves in a subsequent actionbetween them, unless those rights and liabilitieswere expressly put in issue in the first action by a cross claim or other adversary pleading or such issues were triedby consent and determined by judgment in the first action. The difficulty inplaintiff's position on appeal is that he chose to put hiscase to decisionby a request for a summary judgment inhis favor based on Brandenburger. The verdict of thejury and the decision of this Court inBrandenburger are resjudicata on certain controlling facts. The facts established in that case are: That Oltz was found grosslynegligent in the operation of his vehicleand that such negligence contributed to

### rande en burger's death. The effect of this decision is that it is resjudicata toallparties in the instant case inthat Oltz was grossly negligent and contributed of to the deathl~randenburger and Toyota was either guilty of negligence in the manufacture and design or that the vehicle was in a defective and unreasonably unsafe condition, either of which contributed to the death of Brandenburger. We have no way of knowing upon which theory the jury found against Toyota inBrandenburger. Asbetween the parties here, this Court's decision in Brandenburger made no determination that defendants were strictly liable toplaintiff for any injuries sufferedby him. That issuewas not before the Court. The decision of this Court found that the doctrine of strict liabilityintort was applicable inMontana; that the instructions given on the issuewere correct; that therewas sufficient evidence to show that the vehicle was in a defective and unreasonably dangerous condition; and, that such condition contributed as a proximate cause of 

### b rand en burger's death. Having found that plaintiff's gross negligence was a proximate
cause of 

### rande en burger's death, there isno way we can logically find that such gross negligence was not a proximate and contributing
cause of his own personal injuries. The test for proximate cause in Montana 

### is the "but for" test. Ford v. Rupple, 161Mont. 56, 

### 504 P.2d 686. It isobvious thejury inBrandenburger determined that
11

but for" plaintiff 0ltz's gross negligence in operating the Toyota, itwould not have left the highway. Therefore, such gross negligence 

### isnot only a proximate contributing cause of Brandenburger's death, but alsoa proximate contributing cause of his own injuries. Wehave carefully examined the authorities cited by both parties and hold that where, ashere, ina strict liabilitycase involving
an allegedmanufacturing defect that was unknown to the operator and which apparently had nothing to do with causing the accident in question but merely contributed to the operator's injuries, his own contributorynegligence in the operation of the vehicle so as tocause it to leave the highway 

### is a proper defense. Adams v. Ford Motor Co., 103 111.App.2d 356, 243 

### N.E.2d 843; General Motors Corporation v. Walden,(CCA 10thCir. 1969), 406 F.2d 606. The summaryjudgment grantedby the trialcourt isaffirmed.

WeConcur: /

-'+--------------.!------------------- Chief Just ice



# .................................... Justices.

Mr. JusticeFrank I. Haswell, speciallyconcurring: I concur inthe result. However, inmy view, the rule of collateral estoppel rather than resjudicata is involved here. See: Gessell v. Jones, 149 Mont. 418, 427 P.2d 295, for the distinction.

Justice