No. 12069 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 72 

BEVERLY J, OLSON, 

Plaintiff and Appellant as to 

Defendant Shaefer Plumbing and Heating, 

JAMES KAYSER and SHAEFER PLUMBING 

AND HEATING, 

Defendants, James Kayser the Appellant 

as to Plaintiff Beverly J. Olson. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record: 

For Appellant : 

Bolinger and Wellcome, Bozeman, Montana. 

G. Page Wellcome argued, Bozeman, Montana. 

Brown and Gilbert, Bozeman, Montana. 

Gene I. Brown argued, Bozeman, Montana, 

For Respondent: 

Berg, ~'Connell, Angel and Andriolo, Bozeman, Montana, 

Charles I?. Angel argued, Bozeman, Montana. 

Submitted: September 18, 1972 

Decided : JAN 18 19n - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from the district court of the fifth 

judicial district, county of Madison. Plaintiff, Beverly J. 

Olson (hereinafter called plaintiff) brought suit against 

defendants James Kayser (hereinafter called Kayser) the property 

owner, and Shaef er Plumbing and Heating (hereinafter called 

Shaefer) the contractor. Plaintiff alleged she was injured in 

a fall on August 29, 1969, occasioned by stepping into a hole 

which appeared on Kayser's property as the result of either 

negligent excavation, construction or maintenance of a ditch, 

or the negligent backfilling and compaction of the soil in 

the ditch, which allowed the hole to appear as soil settled 

in the ditch. 

The case was tried to a jury and at the close of all the 

evidence the trial court directed a verdict in favor of Shaefer 

on February 4, 1971. Thereafter, the case was submitted to the 

jury on the question of the liability of the property owner 

Kayser, and on the same day the jury returned a verdict against 

the plaintiff and in favor of Kayser. 

Upon motion of plaintiff, the trial court on March 1, 1971, 

entered an order granting plaintiff a new trial as to Kayser, 

but denied plaintiff's motion for a new trial against Shaefer. 

Kayser appeals from the court's order granting a new trial to 

plaintiff. Plaintiff appeals the court's order denying plaintiff's motion for a new trial against Shaefer. 

Kayser purchased the property in question on April 1, 1969, 

The property is located in Ennis, Montana, and consists of two 

buildings with four units, two of which were occupied by renters, 

One of the renters at the time Kayser bought the property was 

Deborah Herman, daughter of plaintiff. 

Due to septic tanks which would not drain and water contamination, Kayser decided to have the units connected with the 
city water and sewer. The plumbing work was contracted to 

Shaefer, The work required a trench be dug from the buildings, 

through a driveway and parking area, to the city street to 

connect the city services. After the pipes were installed, the 

trench was refilled and tamped in the area where plaintiff claims 

to have fallen. 

The agreement between Kayser and Shaefer was described 

as a cost plus job or on a time and material basis. Shaefer 

started to work on the project around July 1, 1969, and completed 

it on July 9, 1969, after which Shaefer moved his equipment and 

men off the premises. On the date of completion the front part 

of the property, which was a parking area adjacent to the street, 

was filled in and made level. In addition to the expected normal 

fill settlement in the ditch, Kayser wanted to raise the parking 

area with gravel, due to the mud condition that followed rainy 

periods caused by the parking area being lower than the street. 

Kayser first attempted to obtain gravel for his premises 

sometime around August 1, 1969, by contacting Shaefer again but 

was notified by Shaefer that it could not do the job because it 

did not have the equipment nor a gravel pit, Thereafter, Kayser 

contacted a Steve Hubner who owned a gravel pit and asked him 

if he could bring in the gravel. Hubner agreed to bring in the 

gravel and spread it in the parking area and by subsequent 

contacts with Shaefer, Shaefer was to help spread the gravel to 

fill other holes on the property. However, before the gravel was 

brought to the property, plaintiff fell and sustained the injuries 

which are the basis of this action. 

On the night of August 29, 1969, approximately two days before the gravel was spread on the property, plaintiff while going 

to visit her daughter, Deborah Herman, stepped in a hole in the 

driveway, pitched forward, and struck her face on the edge of a 

cement sidewalk. The area of the fall was unlighted, except for 

a city street light which was obstructed by a large tree in full 

summer foliage . 
Varying descriptions of the hole are found in the testimony. 

Plaintiff described the hole as being the depth of the length 

of her leg, or at least past her knee, and somewhat larger than 

the diameter of her leg. Kayser testified he was on the property 

a week before the accident and there was no such hole. Steve 

Hubner, who delivered gravel to the premises two days after the 

fall, testified that he'*not see any such hole. Marilyn Olson, 

another daughter of plaintiff, testified she observed a hole 

approximately eighteen inches deep in the area. The Ennis 

night marshal1 Fred Rankin, who investigated the area after the 

accident, testified to seeing a hole and described it as being 

eight and possibly ten inches deep. 

From all indications, the hole appeared from three to four 

days or possibly a week before plaintiff's fall. Fred Rankin 

testified as to the apparent cause of the hole. He statedthere 

was a period of heavy rain several days before plaintiff's fall, 

and it was his opinion the hole was caused by the rain. His 

explanation is not in conflict with Kayser's testimony--that 

he was last on the property a week before the accident and at 

that time there was no hole. Additionally, an kin's explanation 

is given further credence by the testimony of Marilyn Olson, 

who was living with her sister Deborah at the time, and who did 

observe the hole but testified that two weeks prior to the 

accident there was no hole. 

The trial court's order granting a new trial against Kayser 

stated: 

"The motion of the plaintiff for a new trial as to 

the defendant James Kayser is granted. 

"The basis for granting this motion in the opinion 

of the Court is that: 

"1. The evidence is insufficient to justify 

the verdict. 

"2. The verdict is against the law of the case. If 

The trial court's order denying plaintiff's motion for 

a new trial against Shaefer stated: 
"The motion of the plaintiff for a new trial is 

denied as to the defendant Shaefer Plumbing and 

Heating . "The reasons for the ruling are as follows: 

"On July 9, 1969, defendant Shaefer Plumbing and 

Heating Company had completed the work for Mr. 

Kayser and on that day removed his men, materials 

and equipment from the job. Said defendant had 

refilled the trench he had dug completely from the 

front line of the property of Mr. Kayser back to 

the second septic tank using all the materials 

excavated from the trench in doing so. The front 

portion of the trench where the accident occurred was 

by him completely filled and compacted. Both Mr. 

Kayser and Mr. Shaefer realized the trench ground 

'would settle, 1 

"Mr. Kayser accepted the Shaefer Plumbing and 

Heating Company work completed on July 9, 1969, 

and upon presentation of a bill paid him for 

his work, machine use and materials. 

"~ifty days later the accident to the plaintiff 

occurred on August 28, 1969, There is no evidence 

that Shaefer Plumbing and Heating incurred any 

liability between July 9, 1969, and August 28, 1969, 

the date of the plaintiff's accident. There was 

therefore no issue for the jury. Moreover there 

was no conflicting evidence and there was but one 

conclusion to be drawn from the evidence. 11 

In the first appeal, plaintiff seeking a new trial against 

Shaefer, the law on the subject of control of premises was 

stated by this Court in Ulmen v. Schwieger, 92 Mont. 331, 354, 

12 P.2d 856, and most recently reaffirmed in Hannifin v. CahillMooney Construction Co., Mon t . 9- P. 2d , 29 St. 

Rep. 493, 496. 

In Ulmen, plaintiff drove an automobile into an open 

excavation and against a concrete culvert, which plaintiff supposed 

was a regularly established and used highway. There were two 

defendantq the general contractor and a subcontractor for the 

concrete work. At the time of the accident the concrete work 

was complete, but had not been accepted by the general contractor 

or the state highway commission. A judgment of $10,000 was 

entered against both defendants and they appealed. This Court 

in affirming as to the general contractor, but reversing as to 

the subcontractor, Roscoe, held: 
"It is also unimportant that Roscoe's work had not 

been 'accepted'. It was completed and he had withdrawn all control over it, so that it was at the 

time of the accident but an integral part of the 

unfinished highway, no part of which would be 

accepted until ~chwieger's [general contractor] 

entire contract had been fully executed. 

"'The general rule is well established that an 

independent contractor is not liable for injuries 

to third persons, occurring after the contractor 

has completed the work and turned it over to the 

owner or employer and the same has been accepted 

by him * * * the latter is substituted as the 

responsible party. The reason for the substitution of liability is found in the general doctrine 

that an action for negligence will not lie unless 

the defendant was under some duty to the injured 

party at the time and place where the injury occurred which he omitted to perform.' (14 R.C.L. 

107)". 

Ulmen contains an in depth discussion with citations in 

support of the holding which was reiterated verbatim in 

Hannifin, decided by this Court June 30, 1972. 

In Hannifin, the defendant, Cahill-Mooney Construction 

Company, was given a contract by the Stauffer Chemical Company 

to remove certain equipment from a building at its plant near 

Butte, Montana. Following termination of the work and approximately two months following Cahill-~ooney's departure from the 

premises, plaintiff Hannifin, an employee of Stauffer Chemical 

Company, fell through a hole in flooring which had been created 

as the result of the removal of equipment. This Court held, 

citing Ulmen, that the duty to protect third persons attaches 

to independent contractors "only when he has such control over 

the property as the master or contractee would otherwise have. I I 

In the instant case, the trial court's order of March 1, 

1971, made the clear observation that the accident occurred 

fifty days after defendant Shaefer surrendered care of the 

premises to Kayser. Shaefer incurred no liability following its 

departure from the premises and there was no issue for the jury. 

Accordingly, the trial court properly denied plaintiff's motion 

for a new trial against Shaefer. 
The court's order granting a new trial as to defendant 

Kayser is very brief and assigns two grounds: 

"1. The evidence is insufficient to justify the 

verdict . "2. The verdict is against the law of the case. I I 

After briefs and argument, it can only be concluded that 

the trial court considered itself in error when it instructed the 

jury as to the duty the defendant landowner owed the plaintiff. 

There were four rental units and one driveway and parking area 

for the use of the tenants. The fact that only two tenants were 

in residence, and one did not use the facility available to 

the tenants, does not alter the situation that there was a common 

area for the use of the tenants. The alleged injury occurred 

in this area and the arguments concerning the lack of proof of 

common usage or that pedestrian travel was allowed in the area 

does not resolve the question, as there was likewise no proof 

to the contrary. 

Instruction No. 14 properly instructed the jury in regard 

to an invitee without using the term itself: 

11 An owner who leases or rents a portion of his 

property and retains control of another part 

which a tenant is entitled to use in connection 

with the portion leased or rented to him, is 

subject to liability to others lawfully on the 

premises with the consent of the tenant for injuries caused by a dangerous condition existing 

on the part of the premises under the owner's 

control if, by the exercise of reasonable care, 

he could have discovered the condition and made 

it safe. 

"An owner is not liable to others lawfully on the 

premises with the consent of the tenant for injuries resulting from a condition of the premises 

the danger of which is known to the person lawfully 

on the premises or is obvious, unless the owner 

should anticipate the harm despite such knowledge 

or obvious danger. 11 

See Lake v. Emigh, 121 Mont. 87, 190 P.2d 550; Callahan v. 

Buttrey, 186 F.Supp. 715 (D.C.Mont. 1960). 

Instructions No. 26 and No. 27 were in error: 

"INSTRUCTION NO. 26. One of the issues to be determined by you in this case is the duty of care owed 

to Plaintiff at the time and place the accident occurred. Determination of this issue depends upon 

whether plaintiff was a licensee or an invitee. 
I I A licensee is a person who, for his own pleasure, 

convenience, or benefit, enters or remains upon 

premises in the possession of another with express 

or implied permission of the possessor. 

If An invitee is a person who enters upon land in 

the possession of another at the invitation of 

the possessor or for the common interest or 

mutual advantage of both the possessor and the 

person entering. It 

"INSTRUCTION NO, 27. If you find that plaintiff 

was a licensee, then I instruct you that the only 

duty owed to her was to refrain from willful or 

wanton acts of misconduct, or active negligence 

as distinguished from passive negligence, or to 

warn plaintiff of any hidden or concealed dangers, 

if any. 

I f If you find that plaintiff was an invitee, then 

the duty owed to her was that of ordinary care. 11 

Duty is a legal question to be determined by the trial 

court and submitted to the jury, under proper instructions, 

If there is a conflict in the facts that would change or alter 

the duty owed to the plaintiff, depending on which facts the 

jury accepts, then the court must instruct the jury in the 

alternative to make a fact determination and then apply the 

correct duty or standard furnished by the court. That was not 

done in this case, 

We do not reject defendant Kayser's argument based on 

Berthelote v. Loy Oil Co,, 95 Mont. 434, 28 P.2d 187, however, 

the error here does affect the substantial rights of the moving 

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

The determination by the trial court on a motion for a 

new trial involves the exercise of judicial discretion and may 

not be disturbed on review, unless it is clearly shown that 

the trial court manifestly abused its discretion. This has 

not been shown here. 

Accordingly, the orders of the trial court appealed from 

are affirmed. 

/ Associate Justice 4 
................................ Associate Justices.