No. 13880 

IN THE SUPREME COURT OF THE STATE OF PDNTANA 

Plaintiff and Respondent, 

SIEVE CLARK, d/b/a STEVE CLARK CONSTRUCTION; 

SHAEFER PuIMBlX & SHEEP METAL IJK; LEVTIT 

CON~I~, a aorporation; THE MAJESTIC 

CaMPANY; and M3RGAN DRIVE AWAY, INC., a 

Corporation, 

Defendants and Appellants. 

Appeal fm: District Court of the Second Judicial District, 

Homrable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Schulz, Davis and Warren, Dillon, Mmtam 

Carl J!4. Davis argued, Dillon, Mntana 

For Respondent : 

Poore, McKenzie, rnt3-1, Robischon and Robinson, Butte, l4mtana 

Urban L. Fbth argued, butte, Fbntana 

SWtted: October 17, 1978 

Filed : DEC 1 5 1978 

Decided : OEC 1 5 197$ 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiffs sued several defendants for damages based 

on the latters' negligence in causing a fire which destroyed 

plaintiffs' home and its contents. The jury returned a verdict 

for plaintiffs in the sum of $30,500 and judgment was entered 

thereon. Plaintiffs moved that the judgment be amended to award 

them the sum of $60,542.64 or in the alternative for a new trial 

on the issue of damages. The District Court ordered the judgment 

amended to award the homeowner $50,614.93 damages. One of the 

defendants appeals for reinstatement of the jury's damage award 

or for a new trial on all issues. Plaintiffs cross-appeal, seeking a further increase in the damage award to $60,542.64. 

In the spring of 1973 plaintiff Seymour Bohrer, a native 

of New York who had never visited the west before, purchased a 

tract of land in a recreational subdivision near Ennis, Montana, 

for the purpose of constructing a vacation home thereon for his 

family. 

After the purchase of the land, plaintiff asked the seller 

about building a house there. The seller informed him that he 

had a dealership arrangement with Levitt Construction Systems, Inc., 

a California based manufacturer of modular homes, and that several 

such homes were being constructed on other nearby homesites. 

Plaintiff arranged for his wife to go to California and meet with 

an interior decorator who the seller had indicated was handling 

the furnishing and equipping of several of the other homes. Mrs. 

Bohrer subsequently visited the factory where the homes were manufactured, selected a model she wanted, and together with the interior decorator began ordering the furniture, decorations and 

other items for the home. 

Among the items that plaintiffs wanted included in their 

home was a fireplace, but Levitt Construction did not have any 

models including that feature. Levitt Construction therefore, at 
plaintiffs' request, ordered a free-standing metal fireplace 

manufactured by the Majestic Company and placed it, still in its 

shipping carton, inside the modular home to be transported to 

Montana. 

In early August, 1973, Morgan Drive Away Trucking Company 

delivered the Levitt home to the homesite. Several local firms 

in Ennis, Montana, were then hired to perform the work necessary 

to convert the package into a functional vacation home. Defendant 

Steve Clark, a construction contractor, was employed to lay a 

foundation for the unit, join the two halves of the home together, 

and otherwise perform the work necessary to "set up" the modular 

home on the building site. Clark also added an extra room and deck 

onto the house at plaintiff's request. Another local firm, Shaefer 

Plumbing & Sheet Metal, Inc., was employed by plaintiff to make 

repairs to plumbing which had been damaged in transit and to replace the furnace with a larger model. 

In mid-August, 1973, Mr. Bohrer visited the homesite to 

check on the progress of the construction. He noted that the fireplace was unattached and spoke with defendant Clark about installing it. Defendant informed him that a flue, a length of pipe to 

go through the ceiling, was needed and that someone with sheet 

metal knowledge and experience would be required to handle the 

job. After further discussion, plaintiff returned home with the 

understanding that between defendant Clark and Shaefer Plumbing 

& Sheet Metal, Inc., the installation of the fireplace would be 

completed. 

The record is unclear whether plaintiff himself requested Shaefer Plumbing to order the flue or whether defendant Clark 

told Shaefer to order it for plaintiff. In any event, the flue 

arrived at Shaefer Plumbing in early September. Shortly thereafter Shaefer Plumbing directed its employee, Jonathan Todd, to 

accompany defendant Clark to the homesite and install the flue. 
Between the two of them the flue was installed and hooked up 

to the fireplace. The ~ajestic Company provides with each of 

its fireplaces a detailed set of installation instructions requiring that a protective noncombustible floor covering should 

be placed under the fireplace. Defendant Clark did not see any 

instructions with the fireplace. The fireplace was installed 

standing on the bare, unprotected carpet. 

On December 24, 1973 plaintiffs arrived to spend Christmas in their new vacation home. Mr. and Mrs. Bohrer planned to 

spend a week in Montana and then go to California to spend New 

Year's and the following week. They therefore had brought with 

them a considerable wardrobe for themselves and their two children. 

During the early evening after plaintiffs' arrival it 

developed that insufficient fuel had been ordered for the propane 

tanks to the furnace. Plaintiff contacted several neighbors, who 

in turn contacted the delivery service. Several of the neighbors 

came over to plaintiffs' home to make sure that the propane delivery was made. After the propane arrived at about 9:30 in the 

evening, the neighbors stayed to visit, make sure the furnace 

was operating, and have a few Christmas toasts to welcome plaintiffs to Montana. Plaintiffs do not drink, but did provide 

Christmas cheer for their guests. 

At any rate, sometime prior to the arrival of the fuel 

truck, a fire was started in the fireplace. It was not a roaring 

blaze, and shortly before 11:30 p.m. when the guests were leaving, one of the neighbors, Walter Johnson, reached into the fireplace and with his bare hands stacked the remaining embers and 

cinders toward the back. Plaintiffs retired shortly thereafter. 

Just before she fell asleep, Mrs. Bohrer thought she smelled 

smoke. When Mr. Bohrer went to investigate, he found the wall 

behind the fireplace ablaze. He attempted to beat the flames out 
with a blanket, but his efforts were fruitless. He evacuated 

his wife and children and they drove to a neighbor's for assistance. Before any firefighting efforts could be initiated, the 

modular home and all of its contents were destroyed by the 

fire. 

A complaint was filed in the District Court of the Second 

Judicial District, Silver Bow County, on January 27, 1975. The 

complaint named as defendants Steve Clark, d/b/a Steve Clark 

Construction; Levitt Construction Systems, Inc. (the modular home 

manufacturer), and the Majestic Company (manufacturer of the 

fireplace). An amended complaint adding Shaefer Plumbing & Sheet 

Metal, Inc. as a party defendant was filed on February 27, 1975. 

A second amended complaint later added Morgan Drive Away as 

another defendant on the theory that the trucking company's negligence may have caused the loss of the installation instructions. 

The second amended complaint alleged that the negligence of one 

or all of the defendants had caused the destruction of plaintiffs' 

home and its contents. 

The action was removed to federal court, subsequently 

remanded back to state court, and came on for trial by jury on 

January 24, 1977. By that time, the pleadings had been amended 

again to add a claim for personal injuries allegedly sustained 

by the Bohrer family in the fire. 

During the presentation of plaintiffs' case, negotiations between plaintiffs and defendants Levitt Construction Inc., 

the Majestic Company, and Morgan Drive Away, Inc., resulted in an 

agreement whereby those defendants would pay plaintiffs $8,000 

as a settlement, and in return plaintiffs would not resist their 

motions for dismissal and directed verdict after plaintiffs rested 

their case. Levitt, Majestic, and Morgan continued to participate 

in the trial, but pursuant to the agreement plaintiffs presented 

no evidence of negligence on their part. When plaintiffs rested, 
the unopposed motions for dismissal of ~evitt, ~ajestic and 

Morgan were granted. Thereafter, the Court advised the Jury 

that three of the defendants were no longer in the case and that 

they would be further instructed on that matter later in the 

trial. Defense counsel for the two remaining defendants, appellant Clark and Shaefer Plumbing, requested that the jury specifically be advised that the dismissed parties had settled for 

$8,000 and that the jury was to deduct that amount from any award 

they might make to plaintiffs. The trial court judge chose to 

withhold the details of the settlement from the jury and elected 

to make the necessary deduction himself after the jury had returned its verdict. 

On January 28, 1977 the jury returned a special verdict 

finding both Clark and Shaeffer Plumbing guilty of negligence 

which caused the fire. The jury awarded no damages for personal 

injuries, but awarded $30,500 for property damage. 

On February 8 plaintiffs moved to alter and amend the 

judgment or, in the alternative, for a new trial. The motion 

alleged that the jury verdict was contrary to the undisputed 

evidence at the trial. Plaintiffs contended that the evidence 

required an award of $60,542.64 and moved the court either to 

enter judgment in their favor for that sum or grant them a new 

trial on the sole issue of damages. 

On March 11 the District Court entered an order amending 

the judgment to award plaintiff $50,614.93 damage. Both sides 

subsequently appealed; defendant Steve Clark seeks reinstatement 

of the original judgment or a new trial of the entire action, and 

plaintiffs seek a judgment increasing the damage award to $60,542.64. 

The issues on appeal can be summarized in this manner: 

(1) Was the District Court correct in increasing the damage award from $30,500 to $50,614.93? 

(2) Can this Court on appeal increase a jury award of 
damages? 

(3) Was the giving and refusal of certain jury instructions reversible error? 

(4) Sufficiency of the evidence to establish defendant's 

liability. 

The first two issues both deal with the question of 

"additur". Issue number one raises the question from the perspective of the trial court's power to increase an award of 

damages, and issue number two poses the same inquiry as to this 

Court's power to increase the verdict and judgment. 

Rule 59(g), M.R.Civ.P. provides for motions to alter or 

amend a judgment and states that such motions may be combined 

with a motion for new trial. In this case, plaintiffs made such 

a motion, requesting that the jury verdict be increased to $60,542.64, 

or in the alternative that a new trial be granted on the sole issue 

of damages. A similar motion was the subject of an appeal to 

this Court in State Highway Commission v. Schmidt (1964), 143 

Mont. 505, 391 P.2d 692. In Schmidt, a motion for new trial had 

been made and the District Court, instead of granting a new trial 

outright, deemed the jury verdict inadequate. The court made a 

conditional order granting a new trial unless the losing party 

consented to the court's addition of some $7,800 to the verdict, 

in which event the motion for a new trial was denied. In Schmidt 

we held on appeal that Rule 59 does not give the trial court 

authority to add to the jury's verdict, conditionally or otherwise, 

if in the court's opinion it was inadequate. The Schmidt opinion 

unequivocally prohibits the practice of additur by the District 

Courts of Montana. 

In a recent decision, however, this Court contradicted 

the holding in Schmidt by dictum. Ferguson v. Town Pump, Inc. 

(19781, Mont . , 580 P.2d 915, 35 St.Rep. 824, involved 

a motion identical to the one plaintiffs made here; that is, 
that the court either substitute a higher damage award or grant 

a new trial on the issue of damages. The motion was not one of 

the contested issues on appeal and need not have been addressed 

at all. Nonetheless, we remarked in passing that the rule followed in some jurisdictions, that it is within the constitutional 

power of the trial court to condition a denial of a new trial on 

the defendant's consent to an increase in the jury verdict, should 

be adopted in Montana. Town Pump, 580 P.2d at 919-920, 35 St.Rep. 

at 829. Re-examination of the issue under the closer scrutiny 

required by the context in which it arises here convinces us 

that our dictum in Town Pump was incorrect. 

We recognize that there is a split of authority on this 

question. Having re-evaluated it in all its implications, however, we conclude that the reasoning articulated in Schmidt, 

states the better rule. Therefore, we expressly overrule that 

portion of Ferguson v. Town Pump, Inc. (1978), Mont . f 

580 P.2d 915, 35 St.Rep. 824, which adopted the rule that the 

District Court can add to a jury verdict. The rule in Montana 

in regard to additur is that announced in State Highway Commission v. Schmidt (1964), 143 Mont. 505, 391 P.2d 692. The trial 

court here erred when it increased the award to plaintiffs. 

We should point out that Schmidt was the controlling law 

at the time the trial court made the additur here, as Town Pump 

had not yet been decided. The primary authority cited by the 

trial court in its memorandum accompanying the order increasing 

the verdict was Zook Brothers Construction Co. v. State of Montana 

(1976), 171 Mont. 64, 556 P.2d 911, 33 St.Rep. 809. "If the 

Court had any doubt as to its authority to alter and amend the 

judgment", the trial court here said in its memorandum, "such 

doubt is totally dissipated by the recent decision (in Zook 

Brothers)." In Zook Brothers, under the specific unusual circumstances there present, this Court itself raised an award of damages 
made by a trial court. The fact that this Court on appeal added 

to a lower court's award under certain limited special conditions 

does not, however, automatically vest the power of additur in 

the District Courts. The trial court's reliance on Zook Brothers 

as authority for additur by a District Court was misplaced. 

Reference to Zook Brothers brings us to the second issue 

on appeal; that is, this Court's power to increase an award of 

damages. Plaintiffs have cross-appealed for an order of this 

Court increasing the award from the $30,500 jury verdict to 

$60,542.64, which plaintiffs contend they are entitled to by virtue of undisputed evidence. Plaintiffs rely on Zook Brothers 

as authority for such an award by this Court. Zook Brothers, 

however, as we indicated above, involved a special set of limited 

circumstances. It was a case appealed from a trial to the court 

rather than to a jury, and a case in which we found the inadequacy 

of the award to be merely the result of an error in mathematical 

calculation. 

Plaintiffs here argue that their damages are calculable 

with even greater mathematical certainty than in Zook Brothers. 

We have not undertaken to evaluate that contention because we 

hold that Zook Brothers should be strictly construed and that it 

is not controlling here. Zook Brothers, tried to the court, is not 

authority for us to add to the verdict here in a case tried to 

a jury, regardless of the presence or absence of the aspect of 

mathematical certitude. 

We are aware that, as plaintiffs stated in their brief, 

the cases cited in Zook Brothers as authority for scaling upward 

the lower court's award are all jury cases. Nesbitt v. City of 

Butte (1945), 118 Mont. 84, 163 P.2d 251; Miller v. Emerson (1947), 

120 Mont. 380, 186 P.2d 220; Klemens & Son v. Reber Plumbing and 

Heating Co. (1961), 139 Mont. 115, 360 P.2d 1005. We also note, 

however, that they were all cases where a jury verdict was reduced 
as excessive; two of them because the amount of damages awarded 

was not supported by the evidence, and the third because the 

plaintiffs conceded that the amount was excessive and offered 

to settle at a lower figure. In such situations, the concern 

voiced and discussed at length in State Highway Commission v. 

Schmidt, supra, regarding interference with the right to trial 

by jury is, as pointed out in Schmidt, not a controlling factor. 

It is, however, again as pointed out in Schmidt, 143 Mont. at 511, 

391 P.2d at 695, a primary consideration where an increase of 

a jury's award is involved. 

We decline, therefore, to expand our holding in Zook Broth- 

- ers to encompass the relief requested by plaintiffs. Zook Brothers 

is not general authority for appellate additur. Rather, the rule 

in Zook Brothers may be invoked only for an adjustment of an award 

of damages made by a District Court sitting without a jury, and 

only to correct an error ascertainable by mathematical calculation. 

Having determined that the District Court erred when 

it added to the jury verdict, and that this is not a proper case 

for increase of the award by this Court, we are still left with 

the task of reaching a resolution of this controversy. Defendant 

has asked us either to order reinstatement of the original judgment on the jury verdict, or remand for a new trial of the entire 

action (on other specified grounds of error which we will address 

further below). Plaintiffs, on the other hand, sought in the 

District Court either additur to $60,542.64 or a new trial on the 

sole issue of damages, but on appeal have requested only that 

this Court amend the judgment upward to the sum they contend the 

evidence proves. 

In actions involving injury to property, the proper amount 

of recovery is usually ascertainable by reference to fixed standards, and where the verdict in such an action appears to be inadequate, a new trial will be ordered. 58 Am Jur 2d New Trial 5154. 
Generally, the allowance or refusal of a motion for a new trial 

on the grounds of inadequate damages is a matter for the discretion of the District Court. 66 C.J.S. New Trial 5201(6). 

Rule 59(a), M.R.Civ.P., provides that "a new trial may 

be granted on all or part of the issues" in a case. Seibel v. 

Byers (1959), 136 Mont. 39, 344 P.2d 129, where we held that 

the trial court cannot grant a partial new trial limited to the 

issue of damages alone, was decided prior to the adoption of 

Rule 59 and is no longer controlling. The instances in which a 

new trial on the issue of damages alone may be proper are comparatively infrequent; nonetheless, the power of both trial and 

appellate courts to order such a limited trial is well recognized. 

"Where the court is convinced upon a review of the whole case 

that the jury have settled the issue as to responsibility fairly 

and upon sufficient evidence--so that disassociated from other 

questions it ought to stand as the final adjudication of the rights 

of the parties--and that there has been such error in the determination of damages as to require the setting aside of the verdict, 

a new trial as to damages alone may properly be ordered . . ." 

58 Am Jur 2d New Trial 527. 

It is apparent from the trial court's action on plaintiffs' 

motion to amend that the court was convinced the jury had reached 

a proper verdict on the issue of liability. Clearly, also, the 

trial court concluded that the jury's award was inadequate. The 

court stated in its order amending and altering judgment that the 

evidence would have supported summary judgment for plaintiffs 

for at least $41,364.62, yet the jury returned a verdict of only 

$30,500. Under these circumstances, an order granting a new trial 

limited to the issue of damages would have been within the court's 

discretion. Such an order, rather than amendment upward of the 

award, would have been a proper exercise of the court's discretion 

here. Since the District Court did not rule on the motion for new 
trial, however, and since plaintiffs have not requested us on 

appeal to order a new trial on the sole issue of damages, we 

will not do so. Therefore, we order instead that the ~istrict 

Court's order amending and altering judgment is hereby vacated 

and the cause is remanded for a new trial, the scope of which 

shall be left to the District Court in the sound exercise of its 

discretionary powers. 

Defendant urges that numerous errors were comrnited by 

the District Court in its choice of instructions to the jury. 

To avoid the possibility of a future appeal should the same 

instructions be used at the retrial, we will address those arguments in this opinion. 

Six alleged errors are raised: 

(a) Defendant objects to the court's refusal of his proposed instruction on contributory negligence. Defendant argues 

that plaintiffs may have been found contributorily negligent in 

purchasing a fireplace for a modular home without inquiring as 

to its safety or suitability, or for not obtaining or reading 

instructions on the installation before ordering it done. 

It is true that as a general rule, issues of negligence 

and contributory negligence should be decided by the jury. Parrish 

v. Witt (1976), Mont . , 555 P.2d 741, 33 St.Rep. 999 (citing earlier cases). However, there were facts present here which 

made refusal of the instruction proper. Plaintiffs had nothing 

to do with the actual installation of the fireplace. Plaintiffs 

had lived most of their lives in New York City apartments, were 

completely unfamiliar with the workings of fireplaces, and had 

retained the services of defendant in reliance on the expertise 

he held himself to possess. "Before it is proper to submit the 

question of contributory negligence to the jury, there must be 

evidence not only indicating negligence on the part of the plaintiff but also that such negligence contributed as a proximate 
cause to the accident and resulting injuries." Stephens v. 

Brown (1972), 160 Mont. 453, 503 P.2d 667; see also, Grabs 

v. Missoula Cartage (1976), 169 Mont. 216, 545 P.2d 1079. Under 

Montana law, "[Mlere knowledge of the existence of an offending 

instrumentality . . . is not sufficient in itself to constitute 

contributory negligence; but in addition the person so using it 

must have appreciated, or must have had the opportunity to appreciate, danger from its use. . . ." Zirnmer v. ~alifornia Co, (D, 

Mont. 1959), 174 F.Supp. 757, 764. We find no error in refusing 

this instruction under the evidence at the trial. 

(b) Defendant objects to the court's refusal of his proposed instruction on damages. Defendant offered an instruction in 

language taken from Spackman v. Ralph M. Parsons Co. (1966), 147 

Mont. 500, 414 P.2d 918, which provided alternative measures of 

damages for property totally destroyed and property on which repair is possible. The court instead gave an instruction in the 

language of section 17-401, R.C.M. 1947, which states the measure 

of damages for breach of an obligation not arising from contract. 

We defer to the discretion of the District Court in its choice of 

instructions; we refuse to predicate error on the use of a statutorily approved formula. 

(c) Defendant complains of the District Court's refusal 

of his offered instructions on imputed negligence, alleging that 

certain of plaintiffs' agents had acted negligently and that 

their negligence amounts through agency principles to negligence 

of the plaintiffs themselves. The same rules as stated in our 

discussion of the contributory negligence issue apply to any 

alleged negligence on the part of plaintiffs' agents which might 

be imputed to plaintiffs. There was no evidence establishing that 

the acts of any of plaintiffs' agents other than defendant Clark 

and Shaefer Plumbing were a proximate cause of the fire. Both 

defendant Clark and Shaefer Plumbing admitted in their testimony 
at trial that it was their duty to insure that plaintiffs' home 

would not be damaged by the fireplace they installed. No such 

duty was established as to any of the other parties involved. 

Defendant Clark argues that the negligence of Shaefer 

Plumbing should be imputed to plaintiffs. If so, then couldn't 

Shaefer Plumbing argue that Clark's negligence is likewise imputed 

to plaintiffs, leaving plaintiffs no remedy against either? This 

is a case of joint and several liability. We find no error in 

the refusal of the imputed negligence instructions. 

(d) Defendant objects to the court's instruction that the 

cause of the fire was the defectively installed fireplace. Defendant argues that this was a question of fact for the jury to 

determine. There is, however, no evidence in the record that 

the fire originated from any other source. An instruction is 

not objectionable because it assumes an uncontroverted fact, or 

one which is admitted or conclusively shown by the evidence. Hogan 

v. Shuart (1892), 11 Mont. 498, 28 P. 969; Frederick v. Hale (1910), 

42 Mont. 153, 112 P. 70; 75 Am Jur 2d Trial 5679. 

Defendant argues that the instruction that the fireplace 

was the cause of the fire was inconsistent and contradictory in 

that the court also instructed the jurors that they were not 

bound by the opinion of two expert witnesses who testified on 

that issue. We agree that the giving of conflicting instructions 

upon a material issue is reversible error. Skelton v. Great 

Northern Ry. Co. (1940), 110 Mont. 257, 100 P.2d 929. However, 

the instruction on the weight to be accorded expert testimony does 

not conflict with the uncontroverted fact that the fireplace caused 

the fire that destroyed plaintiffs' home. 

(e) Defendant argues that he was only following a floor 

plan supplied by plaintiffs when he installed the fireplace. He 

objects to the court's refusal of his instruction that damages 
resulting from defective or insufficient plans furnished by 

an owner cannot be blamed on a construction contractor. 

Leigland v. McGaffick (1959), 135 Mont. 188, 338 ~.2d 1037. We 

conclude that the District Court properly refused the instruction in that the floor plan furnished by plaintiffs, showing 

only where the fireplace was to be located in relation to other 

objects in the room, cannot be equated with the "plans and/or 

specifications" contemplated by the rule in ~c~affick. 

(f) Defendant alleges error in the District Court's 

failure to instruct the jury more thoroughly in regard to the 

dismissal of the defendants who had settled with plaintiffs. 

There is an even division of authority as to whether the terms 

of a settlement should be revealed to the jury and whether the 

jury or the court itself should make the necessary deduction from 

any award of damages. Annot: 94 ALR2d 352. In our opinion, this 

is a matter that should be left to the discretion of the trial 

court. We agree with those jurisdictions holding that the trial 

court's decision on the matter should not be disturbed unless it 

clearly appears that a fair trial has been jeopardized. Cf. Degen 

v. Bayman (1972), 200 N.W.2d 134. We do not find that to be the 

case here. 

We now turn to the final issue for review; the sufficiency 

of the evidence to support a finding of liability on the part of 

defendant Clark. Defendant contends that there was no contract between him and plaintiffs for installation of the fireplace and no 

duty upon him in that regard. The only charges made to plaintiffs 

relating to the fireplace installation, he argues, were made by 

Shaefer Plumbing. Therefore, he concludes, the jury's finding 

against him was not supported by the evidence and the District 

Court should have granted his motion to dismiss at the close of 

plaintiffs ' case-in -chief. 
Evidence in support of a verdict is not insufficient if it 

is substantial. State Highway Commission v. Arms (1974), 163 

Mont. 487, 518 P.2d 35. Substantial evidence is "such relevant 

evidence as a reasonable mind might accept as adequate to support 

a conclusion". Webb v. Celebrezze (D.Mont. 1964), 226 F.Supp. 

394, 395. Defendant Clark was the individual generally in charge 

of "setting up" plaintiffs' mobile home. Testimony established 

that he participated in the negligent installation of the fireplace, regardless of whether or not the performance of such work 

was itemized in a bill for his services. "Negligence is ordinarily a jury question and it is only where the facts admit of 

but one conclusion that it becomes a matter of law." D'Hoodge 

v. McCann (1968), 151 Mont. 353, 361, 443 P.2d 747. There was no 

error here in denying defendant's motion for directed verdict. 

The order of the District Court amending the judgment 

to award plaintiffs the sum of $50,614.93 is vacated together 

with the original judgment. The cause is remanded for a new trial 

consistent with this opinion. 

Chief Justice