No. 12114 

IN THE SUPREME LOUKT OF THE STATE OF I.fONTAIW 

1972 

GEORGE WlLLIAM cZAlWEL, 

Plaintiff and Respondent, 

-VS - 

DOUGLAS STUART DEES, 

Defendant and Appellant. 

~ippeal from: District Court of the First Judicial District, 

Honorable Victor H. Fall, Judge presiding. 

Counsel of Record: 

For Appellant : 

Harris, Jackson & Utick, Helena, Montana. 

David L. Jackson argued, Helena, Montana. 

For Kespondent : 

Risken and Scribner, Helena, Montana 59601. 

John A. Risken argued, Helena, Montana 59601. 

Submitted: June 20, 1972 

Decided: JUL 18 1972 

Filed : 

Clerk 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment entered in favor of 

plaintiff. Plaintiff George Gammel brought this action (1) to 

recover the value of his 1960 Ope1 automobile, which was totally 

demolished as a result of an accident with the vehicle of defendant Douglas Dees, and (2) to recover for loss of use of his 

automobile. The district court of the first judicial district, 

Lewis and Clark County, sitting without a jury, entered judgment 

for plaintiff. The trial court found plaintiff was entitled to 

recover: (1) the sum of $350 for the value of his automobile and, 

(2) $400 for the loss of use of his vehicle. From this judgment 

defendant appeals. 

This controversy arose from a two-car accident which 

occurred March 22, 1970, approximately seven miles east of Lincoln, 

Montana at the junction of U.S. Highway 200 and the Copper Creek 

Road. Defendant Dees was proceeding east on Highway 200, at 

approximately 70 miles per hour, when he noticed plaintiff's 

vehicle in front of him proceeding in the same direction at a 

slower rate of speed. Plaintiff Gammel testified he was traveling 

at about 25 miles per hour and his turn indicator was on, indicating 

that he intended to make a left turn off Highway 200 onto Copper 

Creek Road. 

Dees slowed his car but when he was approximately two 

car lengths behind plaintiff's vehicle, he placed his left turn 

indicator on and proceeded to pass plaintiff. At about this time, 

plaintiff began making a left hand turn. Defendant's vehicle struck 

the left rear fender of plaintiff's automobile. Neither party was 

personally injured. 

At the scene of the accident, Highway 200 has approximately 

a twenty foot wide blacktop surface with about three foot shoulders. 
The Copper Creek Road, which is a dirt and gravel county road, 

intersects Highway 200 at a right angle, forming a T-shaped intersection.The evidence is undisputed that there are absolutely no 

highway department signs indicating the presence of the intersection. In addition, both plaintiff and defendant testified 

that the center line of Highway 200 was marked by a broken white 

line, which indicates that passing is permitted. 

Both plaintiff and defendant were cited by the Montana 

Highway Patrol for violating state traffic laws. Defendant for 

passing at an intersection, and plaintiff for making an improper 

turn, 

Evidence offered by plaintiff indicated that his vehicle 

was a total loss. The day following the accident, March 23, 1970, 

plaintiff purchased a replacement automobile which he used until 

the middle of May 1970, when he junked the replacement car, As a 

result of the loss of use of his car, plaintiff testified that his 

income was reduced from $130 per week to $40 per month, The trial 

court found that the loss of use had a value of $400. 

Because plaintiff could not prove financial responsibility 

to the satisfaction of the Highway Patrol as he did not have funds 

to make a cash deposit nor automobile insurance, he was further 

inconvenienced by the loss of his driver's license, He did not 

recover his license to drive until after the judgment of the 

trial court, which completely vindicated him. 

Two issues are presented on appeal, 

1. Did the district court commit error in granting 

judgment for the plaintiff? 

2, Did the district court err in awarding the sum of 

$400 for loss of use of plaintiff's automobile? 

We find the district court did not commit error in granting 

judgment for plaintiff. The record is clear that defendant, 

traveling at a high rate of speed and observing a slow moving 
vehicle ahead, did not do what a prudent person would have done or 

should have done under the circumstances. Prior to reaching the 

junction where the collision occurred, there are two signs that 

should place a careful driver on notice of possible danger. First, 

there is a "School Bus Stop" sign and, second, there is a forest 

service sign indicating "Copper Creek Roadt'. Under such circumstances, defendant should have anticipated that the slow moving 

vehicle was going to turn and he should have reduced his speed in 

order to ascertain the intent of the preceding vehicle. 

Both case law and sound reasoning support the trial court's 

findings. In Holland v. Konda, 142 Mont, 536, 542, 385 P.2d 272, 

6 ALR3rd 824, this Court, after citing section 32-2167, R,C.M. 

1947, relating to turns at intersections, said: 

"Appellant's contention seems to be that Kaighn 

violated this statute in turning left on the 

roadway when such movement could not be made with 

reasonable safety. The proof that it was not reasonably safe was the accident itself, This is 

reasoning backwards and the statute is not to be 

interpreted that strictly. The duty imposed on 

the driver of a car intending to turn right or 

left on the highway by this statute has not as yet 

been defined by this court. However, California 

with an almost identical statute * * * has interpreted it to mean that the person turning does not 

need to know with absolute certainty that it is 

safe, but merely that he must take reasonable precautions before turning, [Citing cases]. * * * 

"'We do not understand it to be the rule that a 

person is required to know that the turning movement can be made with safety. All that is required 

is that he take the precautions which a reasonably 

prudent person would take under the circumstances 

reasonably appearing to him at the time. I I1 

Defendant argues in his brief that plaintiff was guilty 

of contributory negligence which would bar any recovery. To 

support this contention he cites Bellon v. Heinzig, 347 F.2d 4, 7, 

(9th Cir. 1965); Sumner v, Amacher, 150 Mont. 544, 550, 437 P.2d 

630; and Faucette v. Christensen, 145 Mont, 28, 36, 37, 400 P.2d 

883. We find that these cases are clearly distinguishable from 
the instant case. In Bellon the court stated: 

be ell on's argument is based upon the district 

court's statement that 'section 32-2167, supra, 

places an affirmative duty on the person turning 

to determine that the turn "can be made with 

reasonable safety." Bellon clearly failed to 

comply with this requirement. I Il 

Here, the trial court found that plaintiff exercised proper 

care in executing his turn onto the Copper Creek Road. Under such 

circumstances, our review is confined to determining whether there 

was substantial credible evidence to support the trial court's 

finding. Sumner v. Amacher, supra; Greenup v. Community Transit 

Co., 145 Mont. 39, 399 P.2d 418. We find that such substantial 

credible evidence existed, and the district court did not commit 

error in granting judgment for the plaintiff. 

In Sumner this Court held: 

"* * * that there is substantial credible evidence 

that Amacher was negligent, proximately causing the 

accident, in that he failed to signal for a left 

turn off the highway sufficiently in advance to make 

the turn with reasonable safety as required by statute, 

knowing of the presence of traffic behind him. I I 

In the instant case ample evidence was introduced to prove 

that plaintiff was not negligent in making the turn onto Copper 

Creek Road. Plaintiff was traveling at a slow rate of speed. 

Although some conflict exists in the record as to whether plaintiff's turn indicator was operating at the time, this was a question 

to be resolved by the trier of the facts, and the trial court 

resolved this in favor of the plaintiff. We find no reason to 

reverse this determination. 

In Faucette, action was brought against the defendant on 

the grounds that he was negligent as a matter of law in being on 

the left of the center while within 100 feet of an intersection 

in violation of section 32-2156, R.C.M. 1947. This Court there 

said: 
"We note that in the Leach case, supra, this court 

in attempting to determine the meaning of 'intersection' found that the legislature meant those interI sections publicly maintained.' Following the same 

type of reasoning, we hold that the prohibited intersection for passing under section 32-2156, is that 

intersection marked by the highway commission as 

authorized and adopted as heretofore described, Such 

reasoning gives meaning to all of the statutes heretofore cited and to regulations adopted thereunder. 

It In the instant situation, a driver can follow the 

directions of markings and signs, and in doing so 

is not in violation of section 32-2156." 

on 

Relying/Paucette as authority, defendant argues that he 

did not violate section 32-2156, RoCeMe 1947, in following the 

directions of the broken white center line on Highway 200, and 

he was not negligent as a matter of law. 

We do not believe this is the issue in the case before 

us. Defendant was found to be negligent in his attempt to pass 

a slow moving automobile with its turn signal indicating that 

a left turn was about to be executed, Defendant was traveling 

at a high rate of speed. These facts, standing alone, would show 

that defendant could be found to be negligent and the issue presented in Baucette is not in dispute here. Defendant was not 

negligent as a matter of law, but from the facts believed by the 

trier of fact, was found to be negligent in attempting to pass 

without any audible signal at a high rate of speed at a place 

where a prudent man would take reasonable precautions; and certainly would not pass against a turn signal operating on the vehicle 

ahead. 

Defendant's second issue is whether the trial court erred 

in awarding the sum of $400 for loss of use of plaintiff's vehicle. 

Plaintiff replaced his vehicle the day following the 

accident. He testified that he drove this replacement vehicle 

for approximately two months before junking it. Due to these facts 

we find plaintiff is not entitled to any amount for loss of use of 
his vehicle, In Stahl v. Farmers Union Oil Co., 145 Mont. 106, 

113, 399 P.2d 763, this Court said: 

"The general rule on damages is that the owner 

can recover for being deprived of the use of a 

damaged vehicle only for the period of time reasonably necessary in making repairs, [Citing 

cases] * * * 

"* * * damages for loss of use may not be limited 

to the market value of the vehicle but may include 

additional damages for loss of use during the 

period reasonably required for replacement, I1 

Here, plaintiff replaced his demolished vehicle on the 

day following the accident, therefore the trial court was in 

error in awarding the sum of $400 for loss of use of the vehicle, 

In his brief on appeal plaintiff-respondent urges this 

Court to dismiss the appeal based upon numerous extensions of 

time secured by defendant-appellant for filing his brief, Since 

the time for filing of appellant's brief was extended by this 

Court, we find no merit in respondent's request, 

The cause is remanded to the district court with instructions that the final judgment be appropriately modified to comply 

with this opinion. Each party shall bear his own costs. 

~ssociatb) Justice 

/ / Chief .Justice / 

Associate Justices,