NO. 94-208

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

LORI INDENDI,

Plaintiff and Appellant,

-vs-

"DOC" WORKMAN and

CHRYSTAL WORKMAN,

APPEFL FROM: District Court of the Fifth Judicial District,

In and for the County of Madison,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Karl Knuchel, Attorney at Law, Livingston,

Montana

For Respondents:

Michael C. Coil; Angel, Screnar, Coil, Bartlett &

Fay, Bozeman, Montana

Filed:

Submitted on Briefs: March 9, 1995

Decided: July 25, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

The Fifth Judicial District Court, Madison County, directed a

verdict in favor of "Dot" Workman and his daughter Chrystal Workman

(the Workmans) and against Lori Indendi (Indendi) . Indendi

appeals. We affirm in part and reverse and remand.

The following issue is dispositive of the case:

Did the District Court err by directing a verdict for the

Workmans and against Indendi following Indendi's case-inchief concerning the issues of negligence, res ipsa

loquitur, and negligence per se?

The Workmans own a home and thirty-three acres between the

Madison River and Highway 84, a federal-aid primary highway. The

land is split into three pastures. All of the pastures are

bordered to the north by the Madison River. Pasture #l is iocated

closest to Norris, Montana. Bureau of Land Management (BLM) land

borders pasture #l to the south and Highway 84 borders the BLM land

to the south. Pasture #2 is the middle pasture with the smallest

amount of acreage. The Workmans' family home is located in pasture

#2 and the Workmans' driveway travels out of pasture #2 to the

south, connecting with Highway 84. A two-wire electric gate

controls the access between the driveway and pasture #2. Both

sides of the Workmans' driveway are bordered by BLM land. Pasture

#3 is the largest of the pastures and is closest to Bozeman,

Montana. Highway 84 bisects pasture #3 and State and BLM land

border pasture #3.

On August 10, 1991, after Chrystal Workman and a friend had

finished riding horses for the day, they took one horse to pasture

2
#3 leaving the other horse, a palomino, and a mule in pasture #2.

Upon their return from pasture #3, Chrystal and her friend noticed

that the palomino and the mule were missing and the electric gate

at the beginning of the driveway was broken. It is theorized that

the mule broke through the gate and the horse and mule left pasture

#2 and headed for the highway.

That night, Indendi was travelling from Bozeman on Highway 84

in her 1969 Volkswagen bus when, in the path of her vehicle, she

saw two eyes reflecting off of her headlights. Indendi swerved,

applied her brakes and successfully missed hitting the animal.

Another animal, however, was just behind and to the right of the

first one. Indendi was unable to miss the second animal, the

Workmans' palomino horse. Indendi hit the palomino, killing it

instantly; Indendi suffered personal injuries and totalled her

vehicle.

Indendi subsequently filed a complaint in the District Court

alleging that the Workmans were negligent and in violation of

several statutory provisions relating to fencing, herding livestock

and an open range exception. The Workmans counter-claimed for the

loss of the horse. After Indendi presented her case, the District

Court directed a verdict in favor of the Workmans.

Standard of Review

The law does not favor directed verdicts. Sweet v. Edmonds

(1976), 171 Mont. 106, 109, 555 P.2d 504, 506. The district court

may grant a directed verdict only when it appears that the nonmoving party cannot recover on any view of the evidence, including

3
the legitimate inferences drawn from that evidence. Barrett v.

Larsen (1993), 256 Mont. 330, 335, 846 P.2d 1012, 1016. With these

principles in mind, we examine whether the District Court properly

granted a directed verdict in favor of the Workmans.

Did the District Court err by directing a verdict for the

Workmans and against Indendi following Indendi's case-inchief concerning the issues of negligence, res ipsa

loquitur, and negligence per se?

We consider the legal theories put forth by the parties

separately.

Nesliqence

Indendi argues that the District Court made certain factual

assumptions that are not supported by the record. Indendi claims

that the assumptions made by the court allowed the court to

determine that the Workmans had no liability under the law and,

without a duty to Indendi, the Workmans could not be found

negligent. According to Indendi, the fallacy in this reasoning

results from the fact that the District Court made the assumption

that the Workman ranch and the surrounding land was "open range."

Further, the court assumed that the property was essentially fenced

land. Indendi asserts that neither of these facts had been proven

and, therefore, the Workmans do not fit within the statutory

exclusion assessing liability to owners of livestock which wander

onto federal-aid primary highways. Indendi argues that the court

incorrectly directed a verdict because there were issues of fact

for the jury to decide.

The Workmans argue that the highway involved here has been

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designated as open range by this Court in prior cases. Jenkins v.

Valley Garden Ranch, Inc. (1968), 151 Mont. 463, 443 P.2d 753

(involving Highway 287-A); Estate of Bartsch (1967), 149 Mont. 405,

427 P.2d 302 (involving Highway 289). The Workmans do, however,

concede that Highway 84 is part of the federal-aid primary system

and that when a highway is part of the federal-aid primary system

the open range doctrine does not apply unless they can satisfy the

statutory exception set forth in § 67-7-202, MCA. The Workmans

argue that because their land is substantially fenced, has no

livestock device, and sits within the open range, that they do fall

under the exclusionary language of 5 60-7-202(2), MCA, and they,

therefore, do not have a duty to keep their livestock from the

highway.

After Indendi had submitted her case, the District Court

directed that a verdict be entered for the Workmans. In directing

a verdict for the Workmans, the District Court concluded that the

evidence submitted by Indendi demonstrated that this was open range

and that the exclusion contained in § 60-7-202(2), MCA, applied.

Our careful review of the record demonstrates that there was no

factual basis for that directed verdict.

The court correctly stated that the following statutes are

applrcable to the facts of the case:

60-7-201. Grazing livestock on highway unlawful.

A person who owns or possesses livestock may not permit

the livestock to graze, remain upon, or OCCUDY a oart of

the right-of-wav of:

(1) a state highway running through cultivated

areas or a part of the fenced right-of-way of a state

highway if in either case the highway has been designated

by agreement between the highway commission and the

5
secretary of transportation as a part of the national

system of interstate and defense highways; or

the

(;lgfwt;ate highway designated by agreement between

commission and the secretary of

transportation as a nart of the federal-aid primary

system, except as provided in 60-7-202.

60-7-202. Exclusions. Section 60-7-201 does not

apply to the following:

(1) livestock on state highways under the charge of

one or more herders;

(2) the warts of fenced hishwavs adiacent to ouen

ranoe where a hiahway device has not been installed to

exclude range livestock;

(3) the parts of a state highway or a part of the

federal-aid primary system which the department of

transportation designates as being impracticable to

exclude livestock. These portions of the highway shall

be marked by proper signs in accordance with the

department's manual and specifications for a uniform

system of traffic-control devices.

60-7-203. Penalty. A person who violates 60-7-201

is guilty of a misdemeanor and is subject to a fine of

not less $5 or more than $100 for each offense. In a

civil action for damages caused by collision between a

motor vehicle and a domestic animal or animals on a

highway brought by the owner, driver, or occupant of a

motor vehicle or by their personal representatives or

assigns or by the owner of livestock, there is ~g

presumvtion or inference that the collision was due to

nesliqence on the part of owner or the person in

possession of the livestock or the driver or owner of the

vehicle. [Emphasis added.]

The court found that Indendi had not made a prima facie case for

negligence because no duty existed on the part of the Workmans.

The court, however, based this assessment on the Workmans' ability

to meet the exclusionary provisions of subsection (2) of § 60-7-

202, MCA, as it relates to the owners of livestock and their

statutory responsibility to keep their animals from federal-aid

highways. The record does not support the court's findings with

regard to the Workmans' non-liability. The District Court reasoned

as follows:

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The record in this CaSe without dispute was that

Defendants' property is open range [sic]. It consists of

sporadically fenced land belonging to the Bureau of Land

Management (hereinafter referred to as BLM) and the

State. Livestock graze and move about generally

unrestrained by fences.

The factual statements in the court's memorandum and order are not

substantiated by the record before us.

In the court's memorandum, written to support its

determination that the Workmans did fall under the exclusion of

5 60-7-202(2), MCA, and therefore did not have a duty to keep

livestock on their ranch, the District Court distinguished this

case from the facts of Ambroyini v. Todd (1982), 197 Mont. 111, 642

P.2d 1013, which stated:

We find that exclusion number two [of 5 60-7-202, MCAI

applies only to livestock which wander from open range

onto adjacent fenced highway. Open range is defined in

section 60-7-102, MCA, as being an area where animals

graze and move about generally unrestrained by fences.

Todd's heifers were restrained by fences prior to

breaking free and roaming onto Highway 10. Therefore,

exclusion number two is inapplicable. . , .

We hold that Todd has a legal duty to exercise due care

in preventing his livestock from wandering on Highway 10.

The fence surrounding the Todd ranch was in

excellent condition. . . Through some inadvertent

action, the gate to the lane was open on the night of May

2, 1979, and early morning of May 3, 1979. The

reasonableness of Todd's conduct is for a jury to decide.

Ambroqini, 642 P.2d at 1019. The District Court noted that

Ambrosini did not include an "open range" consideration as does the

present case. Yet the District Court here failed to recognize

that, in this case as in Ambrosini, the animals had been confined

before they broke through the gate or fence.

While the District Court distinguished Ambroaini from the case

7
at hand based upon the "open range" land that appears in the

current case, the evidence presented in Indendi's case did not

establish that the land in question was "open range." Without such

a distinction, the facts of Ambroqini are so close to those in this

case, that it is pertinent authority and a directed verdict was

inappropriate.

The directed verdict was based upon an application of the

statutory exclusion to the requirement that an owner of livestock

may not permit his livestock to graze upon a state highway

designated for the federal-aid primary system. That exclusion is

set forth in 5 60-7-202(2), MCA. In order to come within the terms

of that exclusion, a party must show: (1) that the highway in

question was "fenced;" (2) that it was adjacent to open range; and

(3) a highway device had not been installed to exclude range

livestock. Section 60-7-202(2), MCA. The record before us does

not support a finding that Highway 84 was fenced, nor does it

support a finding that Highway 84 was adjacent to open range.

Section 60-7-102, MCA, specifically defines open range as

follows:

(4) "Open range" means those areas of the state

where livestock is raised and maintained in sufficient

numbers as to constitute a significant part of the local

or county economy and where such animals graze and move

about generally unrestrained by fences.

There is no evidence in the record before us to establish that

livestock were raised in sufficient numbers to constitute a

significant part of the economy. In addition there is no evidence

which establishes that such animals graze and move about generally

8
unrestrained by fences.

In the absence of proof that the land was open range, and the

further absence of proof establishing that Highway 84 was a "fenced

highway," the court could not properly direct a verdict premised

upon the Workmans' satisfaction of the duty exclusion of § 60-7-

202(2), MCA.

A directed verdict for the Workmans was possible only if

Indendi's case demonstrated that no other outcome was possible.

Clearly that test was not met here as there was no factual basis

for the entry of the directed verdict for the Workmans.

We hold that the District Court erred in directing a verdict

for the Workmans.

Res Ipsa Loauitur

Indendi argues that the theory of res ipsa loquitur applies to

the facts of this case and that the court incorrectly dismissed

this theory from her complaint. The Workmans argue that the court

correctly determined that res ipsa loquitur is improper because

§ 60-7-203, MCA, disallows any presumptions of negligence in

accidents between livestock and vehicles.

Section 60-7-203, MCA, eliminates any presumptions that might

arise from the type of accident which occurred here. Without a

presumption of liability, res ipsa loquitur, which is itself a

presumption of negligence so long as certain conditions are met, is

inappropriate. The court correctly struck Count V from Indendi's

complaint based upon its conclusion that this theory of law did not

apply to the case. Thus, we affirm the court's conclusion in this

9
regard and further action in this case should not include the

theory of res ipse loquitur

Neqlisence per se

Indendi argues that the fences constructed by the Workmans

around their 33-acre tract did not constitute a legal fence--the

Workmans used an electrified fence which consisted of a one-wire

electrified strand with a two-wire electrified strand gate.

Indendi relies on the legal fence definition in 5 81-4-101, MCA,

and contends that because the Workmans did not maintain a legal

fence as described in 5 81-4-101, MCA, the violation of that

statute is negligence per se.

Section 81-4-101, MCA, is the first section in that portion of

the Montana Code broadly pertaining to the "Containment of

Livestock."

81-4-101. Legal fences defined. Any one of the

following, if not less than 44 inches or more than 48

inches in height, shall be a legal fence in the state of

Montana:

(1) all fences constructed of at least three

barbed, horizontal, well-stretched wires, the lowest of

which must not be less than 15 inches or more than 18

inches from the ground, securely fastened as nearly

equidistant as possible to substantial posts firmly set

in the ground or to well-supported leaning posts not

exceeding 20 feet apart or 33 feet apart where two or

more stays or pickets are used equidistant between posts.

All corral fences which are used exclusively for the

purposes of enclosing stacks which are situated outside

of any lawful enclosure shall not be less than 16 feet

from such stack so enclosed and shall be substantially

built with posts not more than 8 feet distant from each

other and not less than five strands of well-stretched

barbed wire and shall not be less than 5 or more than 6

feet high. Any kind of a fence equally as effectual for

the purpose of a corral fence may be made in lieu

thereof.

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(2) all fences constructed of any standard woven

wire not less than 28 inches in height, securely fastened

to substantial posts not more than 30 feet apart,

provided that two equidistant barbed wires shall be

placed above the same at a height of not less than 48

inches from the ground;

(3) all other fences made of barbed wire, which

shall be as strong and as well calculated to protect

enclosures as those above described;

(4) all fences consisting of four boards, rails, or

poles with standing or leaning posts not over 17 feet and

6 inches apart, provided that, if leaning posts are used,

there shall be a pole or wire fastened securely on the

inside of the leg or support of such leaning post;

(5) all rivers, hedges, mountain ridges andbluffs,

or other barriers over or through which it is impossible

for stock to pass.

Section 81-4-101, MCA.

In VanLuchene v. State (1990), 244 Mont. 397, 401, 797 P.2d

932, 935, we set forth the five criteria necessary in order to

establish that a defendant was negligent as a matter of law. Those

criteria are as follows:

1 . The defendant violated the particular statute.

2 . The statute was enacted to protect a specific class

of persons.

3 . Plaintiff is a member of that class.

4 . Plaintiff's injury is of the sort the statute was

enacted to prevent.

5 . The statute was intended to regulate members of

defendant's class.

It is apparent that the whole purpose for the legislature's

requiring fences to be constructed in a certain manner is to

insure, to the extent possible, that livestock not on open range

are adequately confined and are not free to roam and to cause harm

to persons and property or to breed with the livestock of others.

There could be no other purpose for that sort of legislation.

1 1
In 1933, the legislature enacted § 81-4-102, MCA, allowing for

the construction and maintenance of vehicle passes in legal fences

in the explicit or, at least, implicit recognition that automobiles

were using highways protected by or adjacent to legal fences.

Indeed, it is reasonable to conclude that the legislature has not

further amended § 81-4-102, MCA, because it recognizes the reality

that one of the purposes of a legal fence is to keep livestock off

the roadways of this state and that no amendments to the statute

are required to afford that protection to the motoring public.

There is nothing in the statute which would preclude its

application in proving negligence per se in connection with a

livestock/vehicle accident.

Section 81-4-101, MCA, was not enacted simply to prevent

injury to livestock. Section 81-4-103, MCA, provides:

Civil liability. Any person constructing or maintaining

any fence of any kind not described in 81-4-101 is liable

in a civil action for all damages caused by reason of

injury to stock resulting from such defective fence.

There is nothing in the wording of that statute which limits the

civil liability of the owner of a defective fence to injury to

livestock. While the statute specifically provides for civil

liability for one sort of injury--i.e. to livestock--it does not,

in any way, preclude liability for other types of injuries to

persons or property resulting from the livestock owner's failure to

properly contain his or her animals by means of a legal fence. We

hold that violation of § 81-4-101, MCA, can be the basis for a

finding of negligence per se when that violation results in injury

to a motorist or passenger traveling on the highways.

12
Finally, the record establishes that Indendi did present

sufficient evidence of negligence per se under the VanLuchene test.

Starting with the premise, as we have, that § 81-4-lOl;MCA, was

enacted to require the containment of livestock by means of a

"legal fence" and, thereby, to prevent, among other harm,

livestock/vehicle accidents, Indendi presented evidence that the

Workmans violated the statute by failing to construct a legal

fence; that she was a motorist using the highway adjacent to lands

owned by the Workmans, lands required to be legally fenced to

prevent the escape of their livestock; and that she suffered

personal injuries in a vehicle collision with the Workmans'

livestock that escaped through their defective fence onto the

highway. In doing so, Indendi sufficiently established the

elements of negligence per se as set forth in VanLuchene. On

retrial of this matter, we do not preclude a defense that the

Workmans' fence was damaged or tampered with where the evidence

supports such a finding.

We reverse and remand, and instruct the District Court to

empanel a jury to hear the case.

We concur.

Chief Justice

13
Justices

14
Justice Karla M. Gray specially concurring.

I concur in the Court's opinion regarding negligence and res

ipsa loquitur. I specially concur in the result the Court reaches

on whether a violation of § 81-4-101, MCA, is negligence per se,

even though I do not agree with all that is said on that subject.

My concurrence in the result is based on the fact that the

Workmans' arguments in this regard are unpersuasive.

The Workmans advance only two arguments with regard to the

applicability of 5 81-4-101, MCA. First, they argue that

application of negligence per se based on a violation of the "legal

fence" statute is inconsistent with the prohibition in § 60-7-203,

MCA, against presumptions or inferences of negligence on the part

of a iivestock owner in a civil action involving a vehicle-domestic

animal accident on the highway. It is my view that no

inconsistency exists. In an ordinary negligence action, the

plaintiff must prove the existence of a legal duty and a breach of

that duty; it is to those elements of an ordinary negligence action

which the § 60-7-203, MCA, prohibition against inferences and

presumptions of negligence relates.

Negligence per se is a separate theory of liability premised

on the violation of a statute. In a negligence per se claim, the

plaintiff need not establish the existence of a duty and a breach

of that duty. Where a statute applies, the plaintiff need only

establish that the defendant violated the statute and then prove

that the damage or injury was caused by the statutory violation.

Inferences or presumptions of negligence have no bearing on a

15
negligence per se claim. Thus, I would reject the Workmans' first

argument regarding the applicability of 5 81-4-101, MCA, in this

case.

The Workmans' second argument is equally unpersuasive. They

argue that the definition of a legal fence in Montana is ambiguous

because of the existence of two statutes, §§ 81-4-101 and 81-4-203,

MCA, on the subject. Section 81-4-101, MCA, as set forth in its

entirety in the Court's opinion, sets forth the types of fences

which "shall be a legal fence in the state of Montana[;l I' those

fences include, among others, fences constructed of "at least three

barbed, horizontal, well-stretched wires" of certain heights. The

Workmans point out that § 81-4-203, MCA, references fences "of not

less than two wires in good repair." On this basis, they argue

that the definition of a legal fence is ambiguous and, therefore,

that their gate complies with at least part of the definition.

The flaw in this argument is that, by its terms, § 81-4-203,

MCA, applies only vis-a-vis certain other statutes. The limiting

language states: "In 81-4-204, 81-4-207, and 81-4-208," certain

subsequent definitions apply; the "fence of not less than two wires

in good repair" language follows the limiting introductory language

of § 81-4-203, MCA. The statutes referred to in § 81-4-203, MCA,

are not involved in the case before

Workmans' second argument regarding

101, MCA.

us. Thus, I would

the applicability

reject the

of § 854-
Justice Fred J. Weber concurs and dissents as follows:

I concur with the opinion's analysis under the Neqliqence

issue and its holding that the District Court erred in directing a

verdict for the Workmans. In a similar manner, on Res Ipsa

Loauitur, I agree with the affirmation of the District Court's

conclusion that the case should not include the theory of res ipsa

loquitur.

Neslisence Per Se

I dissent from the holding that a violation of § 81-4-101,

MCA, can be a basis for a finding of negligence per se in this

case. The opinion sets forth 5 81-4-101, MCA, with its definition

of a legal fence. Note that as to a barbed wire fence, at least

three barbed, horizontai, weli-stretched wires are required,

together with additional provisions. I emphasize this because of

other code sections later mentioned which do not limit a barbed

wire fence to three wires.

The opinion then refers to § 81-4-103, MCA, and its statement

that any person maintaining a fence which is not a legal fence is

liable for damages such as "injury to stock." The opinion then

concludes there is nothing in that reference which precludes

liability from other types of injuries to persons or property

resulting from a livestock owner's failure to contain animals by

means of a legal fence. The opinion then concludes that while 5

103 provides for civil liability for one sort of injury, it does

not preclude liability for other types of injuries. This is

followed by the holding which in substance states that § 81-4-101,
MCA, establishes a basis for negligence per se in this case. I

suggest this analysis fails to adequately consider other Montana

statutes.

Part 2 of Chapter 4 of Title 81 sets forth a number of

provisions regarding animals unlawfully running at large. Section

81-4-203, MCA, provides as follows:

81-4-203. Open range defined. In 81-4-204, 81-4-

207, and 81-4-208, the term "open range" means all lands

in the state of Montana not enclosed by a fence of not

less than two wires in qood repair. . (Emphasis

supplied.)

Note that a two-wire barbed wire fence which converts open range

land is not adequate to constitute a "legal fence."

Section 81-4-204, MCA, makes it unlawful to allow certain

described animals to run at large on the open range. In a similar

manner, subsequent sections refer to such things as castration of

animals running at large on the open range, killing of animals

running at large on open range, unlawfully allowing bulls other

than purebred bulls to run on open range. It therefore is clear

that for the purposes of part 2, Chapter 4 of Title 81, a two wire

fence in good repair is sufficient to change land from open range

and to establish liability for different purposes--all without any

reference to "legal fence" as defined in 81-4-101. The result is

that property owners could maintain a two-wire fence in good repair

and thereby protect themselves from claims under such part 2 of

Chapter 4. Nonetheless, the same party could be held liable for

the same claims on a different theory--that used in the present

case--that the two-wire fence in good repair was still not a legal

18
fence and therefore the owner was guilty of negligence per se.

This is a significant contradiction.

Later sections in this same part demonstrate that the

legislature can refer to "legal fence" when it desired to do so.

In § 81-4-215, MCA, the owner of various described animals is

liable for damages resulting from these animals breaking into an

enclosure where the fence is legal. In a similar manner, 5 81-4-

217, MCA, provides that if an animal breaks into an enclosure

"surrounded by a legal fence" and is wrongfully on the premises,

the owner may be held liable for damages. It is therefore apparent

that the legislature has made a reference to legal fence when it

finds it reasonable or necessary to do so.

Chapter 7 of Title 60 entitled Livestock on Highways, was

enacted in 1974. As a part of its purposes it states:

60-7-101. Purpose. It is the purpose of 60-7-101

through 60-7-103 to balance the tradition of the open

range and the economic and geographic problems of raising

livestock with the need for safer highways and the policy

of taking all feasible measures to reduce the high

incidence of traffic accidents and fatalities on Montana

highways.

The following section also contains a somewhat different definition

of "open range" as compared to § 81-4-203, MCA:

60-7-102. Definitions. As used in 60-2-208 and 60-

7-101through 60-7-103, the following definitions apply:

i4i ;'Open range" means those areas of the state

where livestock is raised and maintained in sufficient

numbers as to constitute a significant part of the local

or county economy and where such animals graze and move

about qenerallv unrestrained bv fences. (Emphasis

supplied.)

19
Note that the legislature failed to provide that generally

unrestrained by fences meant unrestrained by "legal fences."

Section 60-7-103, MCA, places upon the Department of

Transportation the responsibility to fence the right-of-way of the

state highway system in various places where it is constructed

through open range. While there are a number of statutory

requirements that the Department shall erect fences, there is no

references to "legal fence." I conclude that in its direct

consideration of the issue of livestock and highway usage, the

legislature made no reference to a need to comply with the "legal

fence" definition. Under the opinion analysis in this case, if any

of the fences constructed by the Department do not meet the "legal

fence" definition of 5 81-4-101, MCA, then the Department and State

of Montana are subject to liability for any injury resulting from

failure to construct legal fences throughout Montana.

While not a matter of record, it is common knowledge that

electrified fences have been used throughout Montana for a number

of years as a means of containing livestock. Electrified fences as

commonly used do not meet the requirements of 5 81-4-101, MCA. It

will come as a shock to many livestock owners in the State of

Montana to find that they are negligent per se in the use of

electrified fences which fail to meet the legal fence definition of

§ 81-4-101, MCA, which requires three barbed, horizontal, well

stretched wires, securely fastened as nearly equal distant as

possible to substantial posts and with other additional provisions.

20
I therefore conclude that § 8X-4-101, MCA, defines various

types of legal fences but does not exclude from the definition of

legal fences all other types of fences not therein described.

Under the facts of this case, it still would be possible that

Indendi could prove negligence on the part of the Workmans in the

construction of a single wire electrified fence, but that should

remain as an issue of fact to be determined in the course of trial.

I would therefore hold that plaintiff Indendi has failed to

prove negligence per se. As a result I dissent from this portion

of the opinion.

Chief Justice J.A. Turnage concurs in the foregoing dissent.

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