No. 12667 

IN THE 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 : 

For Appellant : 

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 1 8 1975 
Mr. 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 is a sequel to 

Brandenburger v. Toyota Motor Sales, U.S.A., Inc., decided by this 

Court on August 7, 1973, and reported in - Mon t . -9 513 P.2d 268, 

30 St.Rep. 808. 

In his complaint plaintiff Tafford Oltz sought damages for 

personal injuries and property damage suffered in the same accident 

involved in Brandenburger. 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 

action was 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 the jury verdict in Brandenburger 

finding Oltz guilty of gross negligence which contributed to 

 rand en burger's death is res judicata on the question of whether Oltz 

was guilty of any negligent act which contributed to the accident. 

It is plaintiff's position that a judgment in favor of a plaintiff 

in an action against two or more defendants is not res judicata or 

conclusive as to the rights and liabilities of the defendants among 

themselves in a subsequent action between them, unless those rights 

and liabilities were expressly put in issue in the first action by a 

cross claim or other adversary pleading or such issues were tried by 

consent and determined by judgment in the first action. 

The difficulty in plaintiff's position on appeal is that he 

chose to put his case to decision by a request for a summary judgment 

in his favor based on Brandenburger. The verdict of the jury and 

the decision of this Court in Brandenburger are res judicata on 

certain controlling facts. The facts established in that case are: 

That Oltz was found grossly negligent in the operation of his vehicle 
and that such negligence contributed to rande en burger's death. The 

effect of this decision is that it is res judicata to all parties 

in the instant case in that 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 in Brandenburger. 

As between the parties here, this Court's decision in Brandenburger made no determination that defendants were strictly liable 

to plaintiff for any injuries suffered by him. That issue was not 

before the Court. The decision of this Court found that the doctrine 

of strict liability in tort was applicable in Montana; that the 

instructions given on the issue were correct; that there was 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 is no 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, 161 Mont. 56, 504 

P.2d 686. It is obvious the jury in Brandenburger determined that 

11 but for" plaintiff 0ltz's gross negligence in operating the Toyota, 

it would not have left the highway. Therefore, such gross negligence 

is not only a proximate contributing cause of Brandenburger's 

death, but also a proximate contributing cause of his own injuries. 

We have carefully examined the authorities cited by both parties 

and hold that where, as here, in a strict liability case involving 

an alleged manufacturing 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 

contributory negligence in the operation of the vehicle so as to 
cause 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 10th Cir. 1969), 406 F.2d 606. 

The summary judgment granted by the trial court is affirmed. 

We Concur: / 

-'+--------------.!------------------- 

Chief Just ice 

.................................... Justices. 

Mr. Justice Frank I. Haswell, specially concurring: 

I concur in the result. However, in my view, the rule 

of collateral estoppel rather than res judicata is involved 

here. See: Gessell v. Jones, 149 Mont. 418, 427 P.2d 295, 

for the distinction. 

Justice