No. 12140 

IN THE 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 

Stanley M. 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 in the amount of $80,650 

for the loss of two horses in a fire at the Missoula County fairgrounds in August 1967, and judgment was entered thereon. Subsequently the district court of Missoula County, the Honorable 

Jack L. Green, district judge, granted defendants Missoula County 

and its Fair Board a new trial. From the order granting defendants 

a new trial, plaintiffs appeal. 

Plaintiffs are Bill and Fay Haynes, the owners of two 

registered quarter horses destroyed in the fire and 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 to the extent of such payment. Defendants are Missoula 

County and its Fair Board, the operators of the Western Montana 

Fair. The fairgrounds be the fire occurred are owned by Missoula County and located within the Missoula city limits. 

A general factual background of this action is necessary 

for an understanding of the issues involved in this appeal. 

Defendant Missoula County Fair Board has operated the Western 

Montana Fair as agent of Missoula County for a number of years. 

In 1967 the fair was held August 23 through August 26. 

Sometime prior to the fair date, the Board sent by mail 

to prospective exhibitors a letter, a premium book, and an entry 

blank containing a general release. The Hayneses completed the 

entry blank 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 to release the Missoula 

County Fair Board from liability for loss or damage to exhibits. 

The Hayneses had exhibited horses at the 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 registered 
quarter horses. The ~ayneses' horses were assigned stall space 

in barn 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 in the halter 

classes and the barrel racing event. Bill Haynes had been hired 

by the Fair Board to work as arena director for the 1967 fair. 

The tasks of arena director required the use of a saddle horse. 

At approximately 4:00 a.m. the morning of August 24, 1967, 

a fire of unknown causes erupted in barn number two which resulted 

in the death of both the ~ayneses' horses. 

Hayneses filed suit against defendants on October 24, 1967, 

to recover 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 trial began in the district 

court of Missoula County in May 1971, before Judge Jack L. Green. 

On May 27, 1971, the jury 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 also returned a 

special interrogatory in which it found that the care, custody and 

control of the two horses was in the Missoula County Fair Board. 

A flurry of post-trial activity occurred, culminating in the 

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' case was that defendants 

breached their duty of ordinary care owing to plaintiffs, thereby 

rendering them negligent; that such negligence on defendants' part 
was the proximate cause of the destruction of plaintiffs' horses 

and the resulting monetary damages represented the value of the 

two horses at the time of loss. Specific acts of negligence 

alleged covered both acts of commission and omission on the part 

of defendants and involved the hazardous condition of the building, 

a fireworks display and failure to provide adequate fire protection. 

Evidence at the trial discloses many conflicts. Principal 

conflicts involved the cause of the fire; in whose care, custody 

and control the horses were at the time of loss; and the value 

of the horses at the time of loss. 

On the evening of August 23, 1967, Rich Company, a fireworks display company under contract to the Fair Board, exploded 

fireworks. Several witnesses testified concerning small grass 

fires which were ignited by the fireworks. Plaintiffs' witness, 

Meredith E. Fite, the Missoula Fire Marshal, testified that in his 

opinion "the probable cause of this fire would 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 in the sawdust accumulated outside the building, had 

slowly burned under the sill, and erupted inside the building at 

4:00 a.m. 

~efendants' witness, Thor Fladwed, a professional fire investigator with experience in insurance cases, testified that he 

had performed tests on material samples taken from barn number 

one and from the fire area. He stated that in his opinion the 

chain of causation stated by Mr. Fite was practically impossible. 

One witness for defendants stated that he saw a bright blue 

flash on the morning of the fire which 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 the night of the fire. 
Witnesses for the defendants also suggested the possibility 

of arson, accident, or a nearby trash barrel as possible causes 

of the fire. plaintiffs' expert Fite stated he had ruled out 

these various possible causes of the fire. 

The Fair Board kept no fire trucks within the premises of 

the fairgrounds. Three night watchmen were on duty in the fairgrounds on the night of the fire. At about 4:00 a.m. watchman 

Cassidy observed smoke coming from barn number two. He and 

watchman Cambridge went to barn 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 to barn number two awoke and took part in attempting 

to release horses from the barn. Some horses had been padlocked 

in their stalls. The fire swept through the barn very rapidly and 

several horses, including those owned by the Hayneses were killed in 

the fire. The Hayneses were not on the fairgrounds the night 

of the fire. 

plaintiffs' five witnesses who testified as to the market 

value of the horse Jule Bar varied in their opinions between 

$30,000 and $105,000. Plaintiff Bill Haynes 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 trial court 

granted an amended motion for a new trial filed by defendants. 

The amended motion listed six of the eight statutory grounds 

provided in section 93-5603, R.C.M. 1947, upon which a new trial 

may be granted: 

(1) Irregularity in the proceedings and abuse of discretion 

by the trial court which prevented defendants from having a fair 

trial. 

(2) Accident or surprise which could not be guarded against. 
(3) Excessive damages given under the influence of passion 

or prejudice. 

(4) Insufficiency of the evidence to justify the verdict. 

(5) Error at law occurring at trial. 

(6) Misconduct of the jury. 

The trial court's order granting the amended motion was 

general and did not specify on which of these enumerated grounds 

the new trial was granted. 

On appeal this Court rendered an opinion on May 31, 1973, 

affirming the trial court's order granting defendants a new trial 

which was subsequently withdrawn and a rehearing granted. The 

present opinion follows. 

The underlying issue in this appeal is whether the trial 

court abused its discretion in granting defendants' amended motion 

for a new trial. 

At the outset we observe that the granting of a new trial 

is within the sound discretion of the trial court and its order 

granting a new trial will be reversed only for manifest abuse of 

that discretion. Garrison v. Trowbridge, 119 Mont. 505, 177 P.2d 

464; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228. An order, 

general in its terms, granting a new trial will be upheld if it 

can be sustained on any ground stated in the motion therefor. 

Tigh v. College Park Realty Co., 149 Mont. 358, 427 P.2d 57. 

The first ground enumerated in defendants' motion for a 

new trial is irregularity of the proceedings andabuseof discretion 

by the trial court whereby defendants were prevented from having 

a fair trial. Defendants contend the district court's pretrial 

order suppressing plaintiffs' general release in the Western 

Montana Fair entry blank is reversible error. Specifically defendants argue that this release is a valid and enforceable contract absolving defendants from liability. 

The release at the bottom of the entry blank provided: 
It I hereby release the Missoula County Fair Board 

from any liability by 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 entry blank for both plaintiffs and was authorized to 

do so. Prior to trial, the district court first denied plaintiffs' 

motion to suppress the release, but subsequently granted the motion 

and suppressed the release. 

We hold the district court was correct in suppressing the 

release. In our view the release is illegal and unenforceable 

because it is contrary to the public policy of this state and 

against the public interest. 

Initially we note the general proposition that even though 

a particular exculpatory agreement is not invalidated by statute, 

its enforcement may be contrary to public policy or to the "public 

interest" and such agreement is often 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, 6 ALR3d 693. A good statement 

of this general proposition and its scope is found in Anno. 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 is not true 

that anp agreement of this kind is void as 

against public policy. Whether a person can 

relieve himself by agreement from the duties 

attaching as a matter of law to a legal relationship created by contract between 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 so where 

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 fair associations to deny responsibility or 

liability for damages to or loss of articles delivered for exhibition on the basis of exculpatory clauses in contracts or fair 

regulations have consistently been denied effectiveness as against 

a showing of negligence. Anno. 139 ALR 931; Kay County Free Fair 
Asso. v. Martin, 190 Okla. 225, 122 P.2d 393; French Republic v. 

world's Columbian Exposition, 83 F. 109, reversed on other grounds 

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

New York Poultry, Pigeon and Pet Stock Asso.(loss of cat entered 

in a pet show) 59 N.Y.S. 584; Coltart v. Winnipeg Industrial 

Exhibition (loss of dog by disease contracted from other entries 

in dog show) 17 Western Law Reporter 372, appeal denied in 4 

Dominion Law Reports 108. 

Directing our attention to Montana law, we note an express 

public policy of this state to fix responsibility for damage 

to person or property upon those who fail to exercise ordinary 

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

I I Every one is responsible, not only for the result 

of his willful acts, but also for an injury occasioned 

to another by his want of ordinary care or skill in 

the management of his property or person, except so 

far as the latter has, willfully or by want of ordinary 

care, brought the injury upon himself. The extent of 

liability in such cases is defined by the title on 

compensatory relief. I I 

The purpose of this statute is twofold: (1) To fix primary 

responsibility and liability on the tortfeasor whose conduct 

occasioned the loss or injury, and (2) to make the victim whole. 

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 for his benefit. But a law established for a public reason cannot be contravened by a private agreement. I I 

In our view the foregoing statutes are broad enough to 

render illegal any exculpatory clause or release relieving a 

potential tortfeasor from all liability for future negligent 

conduct where such clause or release is contrary to public policy 

or against the public interest. 

A distinction must be observed btween exculpatory clauses, 

releases, or disclaimers of liability in contracts on the one hand; 
and indemnity agreements, "hold harmless'' agreements, indemnity 

bonds or insurance on the other. The former deny the victim any 

redress by cancelling liability altogether, while the latter 

leave liability unimpaired but shift the ultimate incidence of 

the loss to others. The public policy distinctions between 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 obviously no comparison. The law allows 

one to purchase liability insurance as a matter 

of sound public policy. Such insurance is a contract of indemnity whereby a person may be indemnified for liability arising from his 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- - 

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

to guarantee that the person injured as a proximate 

result of the -negligence of the insured will be compensated for such injuries, whereas enforcement of 

--- the contract ...--- in the instant case would have just the 

opposite result ---- of denying an injured person the 

right - to -- be compensated for injuries proximate1 

-- caused by anotheFs negligence. " (Emphasis addez) . 

For an extensive discussion of the differences and distinctions between exculpatory clauses and indemnity agreements 

see Jamison v. Ellwood Consoltdated Water Company, (CCA 3, 1970) 

Unlike exculpatory clauses and releases, ordinarily 

1 I Contracts of indemnity purporting to relieve one from the results 

of his 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, 77 ALR2d 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. t 
11 Our ultimate inquiry here then is whether the release" 

is contrary to public policy or against the public interest and 

accordingly invalid and unenforceable. 

We hold the County is precluded from disclaiming liability 

by virtue of the rehe when 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, for which it 

has received or been promised compensation. I I 

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, 6 ALR3d 693, 

where a more definitive test of "public interest" was propounded. 

There a contract was signed by a patient upon admission to defendant's nonprofit charitable hospital which purported to release 

the hospital from liability for negligent acts of its employees. 

The California Supreme Court held the contract invalid because 

it affected the public interest. The Court went on to state that 

the "public interest" factor will 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 some members of the public; 

3. The party holds himself out as willing to perform this 

service for any member of the public who seeks it, or at least 

for any member coming within certain established standards; 

4. As a result of the essential nature of the service, 

in the economic setting of the transaction, the party in invoking 
exculpation possesses a decisive advantage of bargaining strength 

against any member of the public who seeks his services; 

5. In exercising a superior bargaining 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 is placed under the control of the party to be 

exculpated, subject to the risk of carelessness by the latter. 

A majority, and arguably all, of these tests are met in 

the instant case. Where, as here, the County is performing a 

public service, underwritten in part by public funds, it is chargeable with using ordinary care in the interest of public safety 

and a release clause exempting it from liability for negligence is 

contrary to public 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 to the second ground contained in 

defendants' amended motion for a new trial, viz. accident or surprise which 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 in the county, suddenly placed the attorney for one of 

the County's insurers in a position adverse to the County, effectively 

depriving the County of its substantial right to representation 

by counsel, and (2) the district court's denial of admission in 

evidence of defendants' premium book containing the rules and 

regulations of the fair prevented defendants from having the complete 

transaction between the parties with respect to custody and responsibility for the horses placed before the jury. 

In analyzing the County's first contention, the background 

and events must be understood. 
The controlling circumstances are reasonably clear: At the 

time of the loss the County was insured with two carriers, Phoenix 

and Northwestern. The Phoenix policy did not cover losses to 

I I property in the care, custody and control of the named insured". 

The Northwestern policy had no such exclusion, but did have a 

$25,000 deductible provision, From the inception of the loss each 

company had a separate attorney providing a defense to Missoula 

County for claims arising from the fairgrounds fire of August 24, 

1967. 

On October 4, 1968, the County was notified by Phoenix 

that its policy might not provide coverage for the loss because 

of exclusion from coverage of property "in the care, custody and 

control of the insured". Through the pleading stage and all pretrial discovery as well as the trial itself, the County was aware 

that the Phoenix policy might not provide coverage for the loss 

but chose not to associate other counsel to represent its interests 

in this 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 in the 

County thereby bringing the Phoenix policy exclusion into play. 

Hence the letter of May 19, 1971, from Phoenix to the County 

I I 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 issue was presented in the pleadings and pretrial order, 

The County was also represented throughout by counsel for Northwestern, which had no such exclusion in its policy. 

Defendants' second contention is likewise without merit. 

The significance of the premium book to defendants lies in the 

rules and regulations therein with respect to possession 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 whole was inadmissible 

because of the tainted exculpatory disclaimers therein, the district court was correct in refusing its admission. How this 

ruling could surprise defendants in midtrial and affect their 

defense of contributory negligence which was pleaded and sovereign 

immunity which was 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 acquaintance and interest in the outcome of the litigation. 

The various witnesses who testified concerning the value 

of the horse Jule Bar expressed opinions ranging from a 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 conscience and 

authorize our intervention. On the contrary, it is supported by 

substantial credible evidence of a number of witnesses giving 

the basis and reasons for their respective valuations. Any interest 

some of them may have had in the outcome of the litigation by 

reason of personal relationships, prior ownership, or otherwise, 

was fully brought out on cross-examination. Under such circumstances the amount to be awarded as damages was properly left to 

the jury. Franck v. Hudson, 140 Mont. 480, 373 P.2d 951; Panisko 

v. Dreibelbis, 113 Mont. 310, 124 P. 2d 997. 

The fourth ground assigned by defendants as authorizing a 

new trial was insufficiency of the evidence to justify the verdict. 
Defendants contend that the testimony of Fire Marshal Fite that 

the fire was caused by a fireworks display at the fairgrounds 

was based on conjecture and suspicion rather than substantial 

evidence. We have examined his testimony and find that it contains substantial credible evidence sufficient to support a 

finding by the jury that the fire was caused by the fireworks. 

The fifth ground on which defendants sought a new trial 

was errors in law occurring at the trial and excepted to by defendan t s . 

Defendants first contend that their motion for summary 

judgment at the commencement of the trial was erroneously denied 

in that plaintiffs admitted they were not aware of the exact 

cause of the fire and plaintiffs' pleadings did not bring the 

case within the doctrine of res ipsa loquitur. Suffice it to 

say that whether nor not plaintiffs knew the exact cause of the 

fire is immaterial to their allegation that the County was negligent 

in failing to provide adequate fire protection. 

Second, defendants contend the district court committed 

reversible error in refusing to declare a mistrial during voir 

dire examination of prospective jurors by plaintiffs' counsel. 

Tvo questions were asked of the panel. The first question inquired as to whether any of the panel were stockholders, officers, 

agents or employees "of an insurance company engaged in the 

casualty insurance business". There was no objection to this 

question by defendants; no prospective .juror indicated he was. 

The second question simply broadened the scope of the original 

question to include members of the prospective jurors' immediate 

families. At this point defendants moved for a mistrial on the 

basis of both questions, contending that the questions were not 

limited to the particular insurance company that was a party 

plaintiff in the case and that particular insurance company was 

not a casualty insurance company but a material damage carrier. 

The trial court denied the motion for mistrial but advised counsel 

"that there can be no more general questions on insurance" but 
that "if you want to ask questions concerning the specific company 

which is a party plaintiff, I will 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 connection with liability insurance companies. See: Anno. 

4 ALR2d 761,792, et.seq. for an exhaustive listing of authorities 

in support. The rationale behind 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 question prospective jurors for the purpose of 

determining any bias or prejudice on their part; that one of the 

sensitive areas of juror bias and prejudice relates to the existence 

or nonexistence of insurance, particularly liability insurance; 

and accordingly counsel for a litigant is entitled to a reasonable 

latitude in voir dire examination to expose any such bias 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 distinction with 

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. Intermountain Transp, Co., 101 Mont. 

315, 55 P.2d 680; Wilson v. Thurston Co,, 82 Mont. 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, 151 Mont. 353, 

443 P.2d 747) are distinguishable on this basis and accordingly 

inapplicable to the instant case. 

The fact that the two questions were 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 industry may distinguish between 
a casualty insurance company and a material damage carrier, the 

term in common usage has a generic meaning encompassing both. 

Where the reference to insurance leaves in doubt whether the 

reference is to liability insurance or to plaintiff's or defendant's 

insurance, courts are inclined to regard the reference to insurance 

as relatively harmless. 4 ALR2d 819 and cases cited therein. 

In our opinion the circumstances of this case simply 

indicate a good faith effort by 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 

Fire Marshal Fite to testify as an expert witness on the cause of 

the fire after repeated assurances by plaintiffs' counsel that 

they had no expert witness on the cause of the fire was error, 

which was not cured by the continuance granted defendants to meet 

this proof. The trial judge adequately protected the rights of 

the County by granting it a recess from May 18 to May 26 for the 

purpose of securing rebuttal testimony and preparing for crossexamination of Fire Marshal 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 qualifications who contradicted plaintiffs' 

expert as to the cause of the fire; and, the County did not further 

complain to the court. Accordingly the trial judge did not abuse 

his discretion in permitting Fire Marshal Fite to testify as an 

expert witness on the cause of the fire. Wolfe v. Northern Pac. 

Ry. Co., 147 Mont. 29, 409 P.2d 528. 

Next defendants contend the district court erred in ruling 

that defendants could not inquire of plaintiff3 value witness 

Parker as to the price he paid for Sugar Bars, the sire of Jule Bar. 

The district court refused the testimony after determining that 

the Sugar Bars sale was not a comparable market sale. We find no 

error here. 
Defendants assign the trial court's permitting Fire Marshal 

Fite to testify as an expert witness on the possible or probable 

cause of the sawdust fire was 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 knowledge not 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 to have the ordinary 

knowledge common to persons so engaged. Nesbitt v. City of Butte, 

118 Mont. 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 expert witness is a 

matter largely within the discretion of the trial judge, and in 

the absence of a showing of abuse, ordinarily will not be disturbed. 

Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263; Nesbitt v. City 

of Butte, supra. 

In the instant case Fire Marshal Fite testified he had 

served a total of 17 years as a fireman in the Missoula fire 

department, 4 as fire marshal, 4 as assistant fire marshal 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 schools he had attended he studied fire investigation, arson, explosions, evidence, interviewing witnesses, photography, collection and preservation of evidence anddetermination 

of origin of fires. His duties included the investigation of all 

fires in which the Missoula fire department had been involved during 

his term of employment. During that time he investigated two sawdust fires. Although his experience with regard to fires relating 

to sawdust and shavings was quite limited, we consider it hypertechnical to require classification of an expert to that extent. 
Certainly he had general experience and specialized training 

as an expert investigator of fire origins that set him apa,rt 

from the layman. On this basis he was qualified to testify and 

the trial judge correctly permitted him to do so. The degree 

of his qualifications and the weight to be given his opinions 

are for the jury. Graham v. Rolandson, supra, 

Defendants next contend the district court committed 

error in permitting plaintiffs to reopen their case in chief for 

the purpose of establishing the value of the second horse Jule's 

Dandy after dismissing the count relating to that horse. The 

transcript shows the following ruling: 

"THE COURT: Well, I will grant the motion to dismiss 

the count seeking damages for Jules Dandy for the 

reasons stated, and I will also grant the plaintiffs' 

motion for leave to reopen their case in chief as to 

damages for Jules Dandy. 1 I 

Plaintiffs then called plaintiff Bill Haynes who testified that 

the market value of ~ule's Dandyat the time of loss was $1,000; 

the defense then presented P4r. Peltz as a rebuttal witness. 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 error not affecting the substantial rights of 

the parties and therefore harmless. The trial judge's intention 

to permit plaintiffs to reopen their case to supply an element of 

proof they had overlooked was clear and within his discretion, 

notwithstanding his failure to specifically reinstate the count 

seeking damages for Jule's Dandy. Had the trial judge not intended 

to reinstate the count, there would be no purpose in permitting 

reopening and proof of value of Jule's Dandy. In any event it 

furnishes no basis for granting 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 entire premium book 

should have been admitted in evidence to show the complete transaction between plaintiffs and defendants entirely aside 

from the admissibility of the exculpatory disclaimer of liability contained therein. They point out that the rules and 
regulations in the premium book disclose that there is no requirement that exhibitors must apply for stall space 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 there was 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 at no 

time did defendants offer the rules and regulations contained 

in the premium book without the inadmissible exculpatory disclaimer of liability so the trial court's ruling thereon was 

correct. 

The final ground contained in defendants' amended motion 

for a new trial relates to alleged misconduct of the jurors. 

Defendants argue that the jury adopted the forbidden "quotient 

method" in arriving at its verdict and point to the 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 in advance 

by the jurors to establish the amount of the verdict by taking 

individual juror's views as to the correct amount, adding them 

together, and dividing by twelve. Great Northern Ry. Co. v. 

Benjamin, 51 Mont. 167, 149 P. 968. The verdict is not objectionable 

where there is no previous agreement to be 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 contains no statement of an advance agreement nor 

of averaging the individual juror's figures. 

For the foregoing reasons none of the grounds enumerated 

in defendants' amended motion for a new trial authorizes the 

granting of a new trial. Accordingly, the order of the trial 

court granting defendants a new trial is vacated and set aside 
and the jury verdict in favor of plaintiffs in the total amount 

of $80,650.00, and the judgment entered therein are reinstated. 

Justice 

1 

I \ ' +8 ~ 

es ** -*L 

$4 \ , 

, 

Hon. L. C: Gulbrandson, District 

Judge, #tting for Justice Wesley 

Castles.