No. 12140 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

BILL AND FAY HAYNES, Plaintiffs and Appellants,

COUNTY OF MISSOUWl et al., Defendants and Respondents.

Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellants: Christian, McCurdy, Ingraham and Wold, Polson, Montana Douglas J. Wold argued, Polson, Montana StanleyM. Doyle, Polson, Montana For Respondents: Garnaas, Hall and Riley, Missoula, Montana J. Robert Riley argued, Missoula

# ,Montana Garlington, Lohn and Robinson, Missoula, Montana Sherman V. Lohn argued, Missoula, Montana Robert L. Deschamps, 111 argued, County Attorney, Missoula,

Montana

.,

Filed: 

### DECI~~ Submitted: September 13, 1973 Decided

## 'B)rElo

# m

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court,

Plaintiffs secured a jury verdict inthe amount of $80,650 for the loss of two horses ina fireatthe Missoula County fairgrounds inAugust 1967, and judgment was entered thereon. Subsequently the district court of Missoula County, the Honorable Jack L. Green, districtjudge, granted defendants Missoula County and itsFair Board a new trial. From the order granting defendants

a new trial, plaintiffs appeal. Plaintiffs areBilland Fay Haynes, the owners of two registered quarter horses destroyed inthe fireand American Livestock Insurance Company, a material damage carrier. American paid the Hayneses $5,000 for the loss of one of the two horses involved and became subrogated to the Hayneses' claims against defendants tothe extent of such payment. Defendants areMissoula County and itsFair Board, the operators of theWestern Montana Fair. The fairgroundsbe the fireoccurred are owned by Missoula County and located within theMissoula city limits. A general factualbackground of this action 

### isnecessary for an understanding of the issues involved inthis appeal. Defendant Missoula County Fair Board has operated theWestern Montana Fair as agent of Missoula County fora number of years. In 1967 the fairwas held August 

### 23 through August 26. Sometime prior to the fair date, the Board sentby mail to prospective exhibitors a letter, a premium book, and an entry blank containing a general release. The Hayneses completed the entryblank and Mrs. Haynes signed the general release form and returned the form to the Fair Board. The premium book also contained a general release clause purporting torelease the Missoula County Fair Board from liabilityfor loss or damage to exhibits. The Hayneses had exhibited horses atthe Missoula County fair in previous years, and in 1967 they exhibited two horses---Jule Bar,

a stallion, and his yearling son, Jule's Dandy. Both were registeredquarterhorses. The ~ayneses' horses were assigned stall space inbarn number two and pursuant to the premium book regulations the feeding, watering and grooming was left to the exhibitor. One of the ~ayneses' horses was entered inthe halter classes and thebarrel racing event. BillHaynes had been hired by the Fair Board towork as arena director for the 1967 fair. The tasks of arena director required the use of a saddlehorse. Atapproximately 4:00 a.m. themorning of August 24, 1967,

a fireof unknown causes erupted inbarn number two which resulted inthe death of both the ~ayneses' horses. Hayneses filed suit against defendants on October 24, 1967, torecover damages for the loss of their two quarter horses, Jule Bar and ~ule's Dandy. Considerable time elapsed and two substitutions of judges occurred before trial. During that time, the American Livestock Insurance Company, material damage carrier on

one of the horses, was added as party plaintiff. This insurer had paid the Hayneses $5,000, the face of the policy, for the loss of

one of the two horses. A complex and extended jury trialbegan inthe district court of Missoula County inMay 1971, before Judge Jack L. Green. OnMay 27, 1971, thejury returned a general verdict for plaintiffs and awarded damages in the amount of $80,650; $1,000 of which was for the loss of the horse Jule's Dandy and the remainder for the loss of the horse Jule Bar. The jury alsoreturned a special interrogatory inwhich it found that the care, custody and control of the two horses was intheMissoula County Fair Board. A flurry of post-trial activity occurred, culminating inthe granting of defendants' amended motion for a new trial on June 18, 1971. From the order granting defendants a new trial, plaintiffs appeal.The basic theory of plaintiffs' casewas that defendants breached their duty of ordinary care owing to plaintiffs, thereby rendering them negligent; that such negligence on defendants' partwas the proximate cause of the destruction of plaintiffs' horses and the resulting monetary damages represented the value of the two horses atthe time of loss. Specific acts of negligence alleged covered both acts of commission and omission on the part of defendants and involved thehazardous condition of thebuilding, a fireworks display and failure toprovide adequate fireprotection. Evidence atthe trialdiscloses many conflicts. Principal conflicts involved the cause of the fire; inwhose care, custody and control the horses were atthe time of loss; and the value of the horses atthe time of loss. On the evening of August 

### 23, 1967, Rich Company, a fireworks display company under contract to the Fair Board, exploded fireworks. Severalwitnesses testified concerning small grass fireswhich were ignitedby the fireworks. Plaintiffs' witness, Meredith E. Fite, the Missoula Fire Marshal, testified that inhis opinion "the probable cause of this firewould have been the fireworks." Mr. Fite stated that during the testimony of the plaintiffs' other witnesses he had formed the opinion the fire had started inthe sawdust accumulated outside the building, had slowlyburned under the 

### sill, and erupted inside the building 

### at 4:00 a.m. ~efendants' witness, Thor Fladwed, a professional fireinvestigator with experience ininsurance cases, testified that he had performed tests on material samples taken from barn number one and from the firearea. He stated that inhis opinion the chain of causation statedby Mr. Fitewas practically impossible. One witness for defendants stated that he saw a bright blue flash on the morning of the firewhich could have been an electrical failure, but plaintiffs produced a Montana Power Company employee who testified there had been no transformer power surge or similar malfunction thenight of the fire.Witnesses for the defendants also suggested the possibility of arson, accident, or a nearby trashbarrel aspossible causes of the fire. plaintiffs' expert Fite statedhe had ruled out these various possible causes of the fire. The Fair Board kept no firetrucks within the premises of the fairgrounds. Three night watchmen were on duty in the fairgrounds on the night of the fire. Atabout 4:00 a.m. watchman Cassidy observed smoke coming from barn number two. He and watchman Cambridge went tobarn number two and commenced releasing horses from their stalls. Watchman Brennan called the city fire department. Persons who were sleeping in campers and trailers adjacent tobarn number two awoke and took part inattempting to release horses from thebarn. Some horses had been padlocked intheir stalls. The fire swept through thebarn very rapidly and severalhorses, including those owned by theHayneses were killed in the fire. The Hayneses were not on the fairgrounds the night of the fire. plaintiffs' fivewitnesses who testified as tothe market value of the horse Jule Bar varied in their opinions between $30,000 and $105,000. Plaintiff BillHaynes testified the value of the horse ~ule's Dandy was $1,000. A defense value witness valued Jule Bar at$7,500. The jury returned a verdict awarding damages of $79,650 for the loss of Jule Bar, and $1,000 for the loss of Jule's Dandy. Following entry of judgment for plaintiffs, the trialcourt granted an amended motion for 

### a new trial filedby defendants. The amended motion listed sixof the eight statutory grounds provided in section 93-5603, R.C.M. 1947, upon which a new trial may be granted: (1) Irregularityin the proceedings and abuse of discretion by the trialcourt which prevented defendants from having a fair trial. (2) Accident or surprisewhich could not be guarded against.(3) Excessive damages given under the influence of passion

or prejudice. (4) Insufficiency of the evidence tojustify the verdict. (5) Error atlaw occurring attrial. 

### (6) Misconduct of thejury. The trialcourt's order granting the amended motion was general and did not specify on which of these enumerated grounds the new trialwas granted. On appeal this Court rendered an opinion on May 31, 1973, affirming the trialcourt's order granting defendants a new trial which was subsequentlywithdrawn and a rehearing granted. The present opinion follows. The underlying issue inthis appeal 

### iswhether the trial court abused 

### its discretion ingranting defendants' amended motion for a new trial. At the outsetwe observe that the granting of a new trial iswithin the sound discretion of the trialcourt and 

### its order granting a new trial

### willbe reversed only formanifest abuse of that discretion. Garrison v. Trowbridge, 119Mont. 505, 177 P.2d 464; Maki v. Murray Hospital, 91Mont. 251, 

### 7 P.2d 228. An order, general inits terms, granting a new trialwillbe upheld if it

can be sustained on any ground stated inthe motion therefor. Tigh v. College Park Realty Co., 149 Mont. 358, 427 P.2d 57. The firstground enumerated indefendants' motion for a

new trial is irregularity of the proceedings andabuseof discretion by the trialcourt whereby defendants were prevented from having

a fair trial. Defendants contend the district court's pretrial order suppressing plaintiffs' general release intheWestern Montana Fair entryblank isreversible error. Specifically defendants argue that this release isa valid and enforceable contract absolving defendants from liability. The release atthebottom of the entryblank provided:It I herebyrelease the Missoula County Fair Board from any liabilityby loss, damage or injury to livestock or other pro ert while said property is on the Fairgrounds.

# R Y9 According to the deposition of plaintiff Fay Haynes, she signed the entryblank forboth plaintiffs and was authorized to do so. Prior to trial, the district court firstdenied plaintiffs' motion to suppress the release, but subsequently granted the motion and suppressed the release. We hold the district courtwas correct in suppressing the release. In our view the release 

### is illegal and unenforceable because it 

### is contrary tothe public policy of this stateand against the public interest. Initiallywe note the general proposition that even though

a particular exculpatory agreement 

### isnot invalidated by statute, itsenforcement may be contrary topublic policy or to the "public interest" and such agreement 

### isoften invalidated thereby. See: 57 Am Jur 2d, Negligence, 524, p. 368; Anno. 175 A.L.R. 8, 53, pp. 14,15; Tunkl v. Regents of the University of California, 

### 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 6ALR3d 693. A good statement of this general proposition and its scope is found inAnno. 

### 6 ALR.3d

"The general rule 

### is that persons may not contract against the effect of their own negligence and that agreements which attempt to do so are invalid. However, it 

### isnot true that

### anp agreement of this kind 

### isvoid as against public policy. Whether a person can relievehimself by agreement from the duties attaching as a matter of law to a legal relationship created by contractbetween himself and another person, 

### is a matter of some difficulty. The conclusion has been reached that even under the view that a person may, under some circumstances, contract against the performance of such duties, he cannot do sowhere either (1) the interest of the public requires the performance of such duties, or (2) because the parties do not stand upon a footing of equality, the weaker Earty is compelled to submit to the stipulation. Attempts by fairassociations todeny responsibility or liabilityfor damages to or loss of articles delivered for exhibition on the basis of exculpatory clauses incontracts or fair regulations have consistentlybeen denied effectiveness as against

a showing of negligence. Anno. 139 ALR 931; Kay County Free FairAsso. v. Martin, 190 Okla. 225, 122 P.2d 393; French Republic v. world's Columbian Exposition, 83 F. 109, reversed on other grounds 

### 91F. 64. This applies equally to injury toanimals, Moeran v. 

### New York Poultry, Pigeon and Pet Stock Asso.(loss of cat entered ina pet show) 59 N.Y.S. 584; Coltart v. Winnipeg Industrial Exhibition (loss of dog by disease contracted from other entries indog show) 17Western Law Reporter 372, appeal denied in4 Dominion Law Reports 108. Directing our attention toMontana law, we note an express public policy of this state to fixresponsibility for damage toperson or property upon thosewho failtoexercise ordinary

care or skill. Section 58-607, R.C,M. 1947, provides:

IIEvery one isresponsible, not only for the result of hiswillful acts, but also for an injury occasioned to another by hiswant of ordinary care or skill in the management of his property or person, except so far as the latterhas, willfully orby want of ordinary care, brought the injuryupon himself. The extent of liability in such cases isdefined by the titleon compensatory relief.II The purpose of this statute 

### is twofold: (1) To fixprimary responsibilityand liability on the tortfeasorwhose conduct occasioned the loss or injury, and (2) tomake the victimwhole. Section 13-801(2), R.C.M. 1947, defines illegal contracts

as those: "Contrary to the policy of express law, though not expressly prohibited." Section 49-105, R.C.M. 1947, provides: "Any one may waive the advantage of a law intended solely forhisbenefit. But a law established for a public reason cannot be contravened by 

### a private agreement. II In our view the foregoing statutes arebroad enough to render illegal any exculpatory clause orrelease relieving a potential tortfeasor from allliability for futurenegligent conduct where such clause or release 

### is contrary topublic policy

or against the public interest. A distinctionmust be observed btween exculpatory clauses, releases, or disclaimers of liabilityincontracts on the one hand;

### and indemnity agreements, "hold harmless'' agreements, indemnity bonds or insurance on the other. The former deny the victim any redressby cancelling liability altogether, while the latter leave liability unimpaired but shift the ultimate incidence of the loss to others. The public policy distinctionsbetween the two types are illustrated in this excerpt from Diamond Crystal Salt Company v, Thielman, (CCA 5 1968), 395 F.2d 62, 65:

11 I



### Appellants seek to compare the release'here involved to a contract of liability insurance. There is obviouslyno comparison. The law allows one to purchase liability insurance as a matter of sound public policy. Such insurance is a contract of indemnitywhereby a person may be indemnified for liability arising fromhis own negligence. The first and most obvious distinction is that such contracts involve the legal relations of three persons rather than just two. The significant 

### -- 

## -- dis- 

### - tinction however, is that such contracts attempt ---J- 

### - to guarantee that the person injured as a proximate result of the -negligenceof the insuredwill be compensated for such injuries, whereas enforcement of the contract in the instant casewould have just the --- ...--- 

### opposite result ---- 

### of denying an injured person the right

### - to --

### be compensated for injuriesproximate1 caused by anotheFsnegligence. " 

### (Emphasis addez)

# . --
For an extensive discussion of the differences and distinctionsbetween exculpatory clauses and indemnity agreements

see Jamisonv. Ellwood ConsoltdatedWater Company, (CCA 3, 1970)

Unlike exculpatory clauses and releases, ordinarily

1I

### Contracts of indemnity purporting to relieve one from the results ofhis failure to exercise ordinary care are not contrary to public policy." General Accident Fire & 

### Life Assurance Corp. v. Smith & 

### Oby Co., (CCA 6 1959) 272 F.2d 581, 77ALR2d 1134,1139. The case of Ryan Mercantile Co. v. Great Northern Ry. Co., (D.C. Mont. 1960) 186 F.Supp. 660,aff'd (CCA 9, 1961), 294 F.2d 629, furnishes an example of a valid indemnity agreement between landlord and tenant concerning injuries to third persons on the leased premises, including a requirement that the tenant carry liability insurance for the landlord's protection. Ryan is clearly distinguishable from the instant case on this basis, among others.

t11 

### Our ultimate inquiry here then iswhether the release" is contrary to public policy or against the public interest and accordingly invalid and unenforceable. We hold the County is precluded fromdisclaiming liability by virtue of the rehewhen performing an act in the public interest. This principle is recognized in Restatement, Contracts, $575, 

### providing in pertinent part: "(1) 

### A bargain for exemption from liability for the consequences

# * +C

# * of negligence is illegal if

"(b) one of the parties is charged with a duty of public service,and the bargain relates to negligence in the performance of any part of its duty to the public, forwhich it has received or been promised compensation.II 

### This rule is also recognized as the majority holding in the United States in Tunkl v. Regents of the University of California, 

### 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 

### 6ALR3d 693, where a more definitive test of "public interest"was propounded. There a contractwas signed by a patient upon admission to defendant's nonprofit charitablehospital which purported to release the hospital from liability fornegligent acts of its employees. The California Supreme Court held the contract invalidbecause it affected the public interest. The Courtwent on to state that the "public interest" factorwill invalidate an exculpatory clause where some or all of the following characteristics are present: 

### 1. It concerns a business of a type generally suitable for public regulations; 2. The party seeking exculpation is engaged in performing

a service of great importance to the public,which is often a matter of practical necessity for somemembers of the public; 3. The party holds himself out aswilling to perform this service for any member of the public who seeks it, or at least for any member comingwithin certain established standards; 

### 4. As 

### a result of the essential nature of the service, in the economic setting of the transaction, the party in invokingexculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; 

### 5. In exercising a superiorbargaining power, the party confronts the public with a standarized adhesion contract of exculpation and makes no provision whereby a person may pay additional reasonable fees and obtain protection against negligence; and 

### 6. As a result of the transaction, the person or property of the purchaser 

### isplaced under the control of the party tobe exculpated, subject to the riskof carelessness by the latter. 

### A majority, and arguably all, of these tests aremet in the instant case. Where, ashere, the County isperforming a public service, underwritten inpart by public funds, it ischargeablewith using ordinary care inthe interest of public safety and a release clause exempting it from liability fornegligence is contrary topublic policy, against the public interest and therefore invalid and unenforceable. In our view the fact that plaintiffs here

### were exhibitors rather than spectators renders this principle

no less applicable. Directing our attention tothe second ground contained in defendants' amended motion for a new trial, viz. accident or surprisewhich ordinary prudence could not have guarded against, defendants have two contentions: (1) that plaintiffs' proof in midtrial tending to show that care, custody, and control of the horses was inthe county, suddenly placed the attorney for one of the County's insurers ina position adverse to the County, effectively depriving the County of 

### its substantial right torepresentation by counsel, and 

### (2) the district court's denial of admission in evidence of defendants' premium book containing the rules and regulations of the fairprevented defendants from having the complete transaction between the partieswith respect tocustody and responsibility for the horses placed before thejury. In analyzing the County's firstcontention, thebackground and events must be understood.The controlling circumstances arereasonably clear: At the time of the loss the County was insured with two carriers, Phoenix and Northwestern. The Phoenix policy didnot cover losses to

II property inthe care, custody and control of the named insured". The Northwestern policy had no such exclusion, but didhave a $25,000 deductible provision, From the inception of the loss each company had a separate attorney providing a defense toMissoula County for claims arising from the fairgrounds fire of August 24, 1967. On October 4, 1968, the County was notifiedby Phoenix that its policy might not provide coverage for the lossbecause of exclusion from coverage of property "in the care, custody and control of the insured". Through the pleading stage and allpretrialdiscovery aswell as the trialitself, the County was aware that the Phoenix policy might not provide coverage for the loss but chose not to associate other counsel torepresent its interests inthis potential conflict. In the middle of the trial, testimony

was introduced on behalf of plaintiffs tending to prove that care, custody and control of plaintiffs' horses was in fact inthe County therebybringing the Phoenix policy exclusion intoplay. Hence the letter of May 19, 1971, from Phoenix to the County

II advising of the new development", i.e. introduction of evidence indicating the County's custody of the horses and bringing the Phoenix exclusion into operation. This was no surprise that reasonable prudence could not have guarded against. The County was warned of the exclusion and the possibility of noncoverage almost two and one-half years before trial. The issuewas presented in the pleadings and pretrial order, The County was alsorepresented throughout by counsel forNorthwestern, which had no such exclusion in

### itspolicy. Defendants' second contention 

### is likewisewithout merit. The significance of the premium book to defendants liesinthe rules and regulations thereinwith respect topossession and custody of the horses stabled on the fairgrounds and on the issue of bailment.

### The premium book also contained exculpatory disclaimers of liability for losses to animals by the County. The disclaimers

were repeatedly refused admission in evidence on the same basis that the release in the entry blank was denied admission in evidence. At no time did the County offer in evidence the rules and regulations of the fair without the inadmissible exculpatory disclaimers. As the offered exhibit as a wholewas inadmissible because of the tainted exculpatory disclaimers therein, the district courtwas correct in refusing its admission. How this ruling could surprise defendants inmidtrial and affect their defense of contributorynegligencewhichwas pleaded and sovereign immunitywhichwas not escapes us. The third ground for granting a new trial contained in defendants' amended motion alleges excessive damages awarded by the jury by reason of passion and prejudice. Defendants argue the testimony of plaintiffs' value witnesses is all tainted by personal acquaintanceand interest in the outcome of the litigation. The various witnesseswho testified concerning the value of the horse Jule Bar expressed opinions ranging froma high of $105,000 to a low of $7,500. The jury brought in an award of $79,650 for Jule Bar. The amount of this verdict is not so grossly out of proportion to the loss as to shock the conscienceand authorize our intervention. On 

### the contrary, it is supported by substantial credible evidence of a number ofwitnesses giving the basis and reasons for their respectivevaluations. Any interest

some of themmay have had in the outcome of the litigationby

reason of personal relationships,prior ownership,or otherwise,

was fully brought out on cross-examination. Under such circumstances the amount to be awarded as damageswas properly left to the jury. Franck v. Hudson, 140Mont. 480, 373 P.2d 951;Panisko

v. Dreibelbis, 113Mont. 310, 124 P.2d 997. The fourth ground assigned by defendants as authorizing a
new trialwas insufficiency of the evidence to justify the verdict.Defendants contend that the testimony of Fire Marshal Fite that the firewas caused by a fireworks display atthe fairgrounds

was based on conjecture and suspicionrather than substantial evidence. We have examined his testimony and find that it contains substantial credible evidence sufficient to support a finding by thejury that the firewas caused by the fireworks. The fifthground on which defendants sought a new trial

was errors in law occurring atthe trial and excepted toby defendan ts

# .

Defendants firstcontend that their motion for summary judgment atthe commencement of the trialwas erroneously denied in that plaintiffs admitted they were not aware of the exact

cause of the fireand plaintiffs' pleadings did not bring the

casewithin the doctrine of res ipsa loquitur. Suffice it to say that whether nor not plaintiffs knew the exact cause of the fireisimmaterial to their allegation that the County was negligent in failing to provide adequate fireprotection. Second, defendants contend the district court committed reversible error inrefusing todeclare a mistrial during voir dire examination of prospective jurors by plaintiffs' counsel. Tvo questions were asked of the panel. The first question inquired as towhether any of the panel were stockholders, officers, agents or employees "of an insurance company engaged inthe casualty insurancebusiness". There was no objection to this questionby defendants; no prospective .juror indicated he was. The second question simplybroadened the scope of the original question to include members of theprospectivejurors' immediate families. At this point defendants moved for a mistrial on the basis of both questions, contending that the questionswere not limited tothe particular insurance company that was a party plaintiff inthe case and that particular insurance company was not a casualty insurance company but a material damage carrier. The trialcourt denied the motion formistrial but advised counsel "that there can be no more general questions on insurance" but

### that "if youwant to ask questions concerning the specific company which is a party plaintiff, 

### Iwill permit it." The record discloses

no further questions concerning insurance. As a general rule if counsel acts in good faith,he may question prospective jurors on voir dire respecting their interest in, or connectionwith liability insurance companies. See: Anno. 

### 4ALR2d 761,792, et.seq. for an exhaustive listing of authorities in support. The rationalebehind this general rule as indicated by these cases is that every litigant is entitled to a fair and impartial jury; that to secure this right, counsel for a litigant is entitled to questionprospective jurors for the purpose of determining anybias or prejudice on their part; that one of the sensitive areas of juror bias and prejudice relates to the existence

ornonexistence of insurance,particularly liability insurance; and accordingly counsel for a litigant is entitled to a reasonable latitude in voir dire examination to expose any suchbias or prejudice on the part of a prospective juror and to enable a litigant intelligently to exercise his challenges, limited only by considerations of good faith. Such rule and its rationale become compelling in a case where an insurance company is a named party to the litigation. Montana, inferentially at least, observes the distinctionwith respect to voir dire examination of prospective jurors in cases involving an insurance company as a party and those cases in which it is not. See: Meinecke v. IntermountainTransp,Co., 101Mont. 315, 

### 55 P.2d 680;Wilson v. Thurston Co,, 

### 82Mont. 492, 267 P. 801. The cases cited and quoted by defendants (Avery 

### v. City of Anaconda, 149 Mont. 495, 428 P.2d 465;~'~oodge v. McCann, 151Mont. 353, 443 P.2d 747) are distinguishable on this basis and accordingly inapplicable to the instant case. The fact that the two questionswere not limited to plaintiff insurance company,but covered any insurance company engaged in the casualty insurance business is not significant in this case. Although technical usage within the insurance industrymay distinguishbetweena casualty insurance company and a material damage carrier, the term incommon usage has a generic meaning encompassing both. Where the reference toinsurance leaves indoubt whether the reference 

### is to liability insurance or toplaintiff's or defendant's insurance, courts are inclined toregard the reference to insurance

asrelativelyharmless. 

### 4 ALR2d 819 and cases cited therein. In our opinion the circumstances of this case simply indicate a good faith effortby counsel for plaintiffs to inquire into a legitimate area of concern by two general questions to the panel as a whole. 

### As such this matter furnishes no ground for a

new trial. Defendants next contend the trial court's ruling permitting FireMarshal Fite to testify as an expertwitness on the cause of the fireafterrepeated assurances by plaintiffs' counsel that they had no expertwitness on the cause of the firewas error, which was not cured by the continuance granted defendants tomeet this proof. The trialjudge adequately protected the rights of the County by granting it a recess from May 18 toMay 26 for the purpose of securing rebuttal testimony and preparing for crossexamination of FireMarshal Fite. Plaintiffs' expert was deposed by both counsel for the County; their cross-examination of plaintiffs' expert was thorough and complete; they obtained a rebuttal witness with outstanding qualificationswho contradicted plaintiffs' expert as to the cause of the fire; and, the County did not further complain to the court. Accordingly the trialjudge did not abuse his discretion inpermitting FireMarshal Fite to testify as an expertwitness on the cause of the fire. Wolfe v. Northern Pac. Ry. Co., 147Mont. 29, 409 P.2d 528. Next defendants contend the district court erred inruling that defendants could not inquire of plaintiff3value witness Parker as to the price he paid for Sugar Bars, the sireof JuleBar. The district court refused the testimony after determining that the Sugar Bars salewas not a comparable market sale. We find no

errorhere.

### Defendants assign the trial court's permitting FireMarshal Fite to testify as an expertwitness on the possible or probable

cause of the sawdust firewas error. An expert witness may be qualified by professional, scientific or technical training, or have practical experience in some field or activity conferring upon him a special knowledgenot shared by mankind in general, and one who has been engaged for a reasonable time in a particular profession, trade, or calling will be assumed tohave the ordinary knowledge common to persons so engaged. Nesbitt v. City of Butte, 118Mont. 84, 163 P.2d 251. The opinion of a witness on a material question of science,art or trade in which he is skilled is admissible in evidence. Section 93-401-27,R.C.M. 1947. The determination of the qualification of a skilled or expertwitness is a matter largelywithin the discretion of the trial judge, and in the absence of a showing of abuse, ordinarilywill not be disturbed. Graham v. Rolandson, 150Mont. 270, 435 P.2d 263;Nesbitt v. City of Butte, supra. In the instant case FireMarshal Fite testified he had served a total of 17years as a fireman in the Missoula fire department, 

### 4as fire marshal, 

### 4as assistant firemarshal and 

### 4 years as fire inspector; that he had attended 

### 6 seminars on fire and arson investigation;he had completed a 

### 100 hour fire and arson investigation course from Investigating Institute in Chicago; that he had assisted in planning the state of Montana Arson School in 1970. In the schoolshe had attended he studied fire investigation, arson, explosions, evidence, interviewingwitnesses, photography, collectionand preservation of evidence anddetermination of origin of fires. His duties included the investigationof all fires inwhich the Missoula fire department had been involved during his term of employment. During that time he investigated two sawdust fires. Although his experiencewith regard to fires relating to sawdust and shavingswas quite limited,we consider it hypertechnical to require classificationof an expert to that extent.Certainly he had general experience and specialized training

as an expert investigator of fireorigins that sethim apa,rt from the layman. On thisbasis he was qualified to testify and the trialjudge correctly permitted him to do so. The degree of his qualifications and theweight tobe given his opinions are for thejury. Graham v. Rolandson, supra, Defendants next contend the district court committed

error inpermitting plaintiffs toreopen their case inchief for the purpose of establishing the value of the second horse Jule's Dandy afterdismissing the count relating to that horse. The transcript shows the following ruling: "THE COURT: Well, I willgrant the motion to dismiss the count seeking damages for Jules Dandy for the reasons stated, and I 

### willalso grant the plaintiffs' motion for leave toreopen their case inchief as to damages for Jules Dandy. 1I Plaintiffs then called plaintiff BillHaynes who testified that the market value of ~ule's Dandyat the time of losswas $1,000; the defense then presented P4r. Peltz as a rebuttalwitness. The jury returned a verdict of $1,000 for Jule's Dandy. We observe the error of which defendants complain was at most a technical errornot affecting the substantial rights of the parties and therefore harmless. The trialjudge's intention to permit plaintiffs toreopen their case to supply an element of proof they had overlooked was clear and within his discretion, notwithstanding his failure to specificallyreinstate the count seeking damages forJule's Dandy. Had the trialjudge not intended toreinstate the count, therewould be no purpose inpermitting reopening and proof of value of Jule's Dandy. In any event it furnishes no basis forgranting a new trial. Defendants contend that the court's refusal on three occasions to admit the "premium book'' containing the rules and regulations

was reversible error. They argue that the entirepremium book should have been admitted inevidence to show the complete transaction between plaintiffs and defendants entirely aside from the admissibility of the exculpatory disclaimer of liabilitycontained therein. They point out that the rules andregulations inthe premium book disclose that there isno requirement that exhibitors must apply for stallspace or stable their horses on the fairgrounds; that the owners of the horses and not the Fair Board were responsible for the care, feeding and safety of the horses; and that therewas no delivery of possession of the horses and no acceptance thereof by the Fair Board and consequently no bailment. This issue has been previously answered herein under defendants' contention of surprise. We simply repeat that atno time did defendants offer the rules and regulations contained inthe premium book without the inadmissible exculpatory disclaimer of liability so the trialcourt's ruling thereon was correct. The final ground contained indefendants' amended motion for a new trialrelates toalleged misconduct of thejurors. Defendants argue that thejury adopted the forbidden "quotient method" inarriving at

### itsverdict and point tothe affidavit of juror Charles Johnson in support. This affidavit falls far short of establishing a quotient verdict. The vice of a quotient verdict is an agreement inadvance by the jurors to establish the amount of the verdictby taking individualjuror's views as to the correct amount, adding them together, and dividingby twelve. Great Northern Ry. Co. v. Benjamin, 51Mont. 167, 149 P. 968. The verdict 

### isnot objectionable where there isno previous agreement tobe bound by the quotient process. Bracy v. Great Northern Ry. Co., 136 Mont. 65, 343 P.2d 848, cert.den. 361

### U.S. 949, 80 S.Ct. 403, 

### 4 L ed 2d 381. Here, the affidavit containsno statement of an advance agreement nor of averaging the individualjuror's figures. For the foregoing reasons none of the grounds enumerated indefendants' amended motion for a new trialauthorizes the granting of a new trial. Accordingly, the order of the trial court granting defendants a new trial 

### is vacated and set asideand thejury verdict in favor of plaintiffs in the total amount 

### of 

### $80,650.00, and thejudgment entered therein arereinstated.

Justice

1 I \ '+8 ~ es ** -*L \ $4 , , Hon. L. 

### C: Gulbrandson, District Judge, #tting for JusticeWesley Castles.