No. 12090 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

RICHARD WALTEE , Administrator of 

the Estate of KENNETH VALTEE, 

Plaintiff and Respondent, 

PETROLANE, INC., et all 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable Victor H. Fall, Judge presiding. 

Counsel of Record: 

For Appellant : 

Small, Cumrnins and Hatch, Helena, Montana. 

Floyd Small argued, Helena, Montana. 

For Respondent : 

Harris, Jackson and Utiek, Helena, Montana. 

LaVerne Harris and Andrew Utick argued, Helena, 

Montana. 

Knight, Dahood and Mackay, Anaconda, Montana. 

Wade J. Dahood argued, Anaconda, Montana. 

Submitted: Apri.1 27, 1973 

Decided: -- JVL 5 1973 
Honorable Alfred B. Coate, District Judge, sitting in place of 

Mr. Justice John C. Harrison, delivered the Opinion of the Court. 

Kenneth Waltee, his wife Sandra, and their three minor 

children all died as a result of monoxide poisoning produced 

by the propane furnace used to heat their rented mobile home. 

At the time of their death, January 22, 1969, Kenneth was 28 

years of age and his wife Sandra was 23 years of age. 

Kenneth Waltee left as his only surviving heirs his 

father and mother, Charles and Aune Waltee. This action was 

filed in the district court of the first judicial district, 

County of Lewis and Clark, on behalf of such parents under the 

provisions of the wrongful death statute, section 93-2810, R.C.M. 

1947. Sandra Waltee left as her only surviving heirs her parents, 

Horace and Helen Peterson. A separate action for her death was 

filed on behalf of her parents under the provisions of the same 

statute. Defendant Petrolane, Inc. supplied the Waltee family 

with propane gas and repair services for their propane burning 

household applicances. The two actions were consolidated for 

trial and were tried to the court sitting with a jury. The verdicts awarded $82,864 for the death of Kenneth Waltee and $101,103 

for the death of Sandra Waltee. After entry of judgment, defendant moved for a new trial and was denied. This appeal is 

from the judgment and order denying the motion for a new trial. 

On January 19, 1969, the weather had turned severe and 

Kenneth called his landlord, an auto mechanic, to assist him in 

starting his car. The landlord assisted in the starting of the 

Waltee car and then spent some fifteen to twenty minutes in the 

Waltee home. The Waltees did not complain about the furnace nor 

did the landlord notice any fumes or odors coming from the furnace during the visit. 

The following day, January 20, 1969, Albert Clark, an 
employee of defendant, made a propane fuel delivery to the 

Waltee home. When Clark completed his delivery, he went to the 

door of the home to have Mrs. Waltee sign a receipt for the fuel. 

There was no odor of gas coming from the home and Mrs. Waltee 

made no complaint about the operation of the furnace or that any 

of her family was sick. Clark observed the Waltee children and 

they appeared to be healthy at that time. 

The next day, January 21, 1969, the Waltees were snowbound. At about 10:OO a.m.,Kenneth walked through deep snow to 

his closest neighbor's home to use the telephone. Kenneth told 

his neighbor his family was sick from the odor of gas and that 

he would like to call a serviceman for help. He called defendant for assistance but defendant was unable to send a serviceman 

on that day. 

The following day, January 22, 1969, Kenneth Waltee again 

walked to his neighbor's house to use the phone to call defendant. 

Kenneth reported that his family was still sick and the odor of 

gas was still present. The neighbor observed one of defendant's 

trucks arrive at the Waltee home that afternoon. The serviceman, 

Victor Zentner, noticed a light burned gas odor in the Waltee 

home when he first arrived. He went outside the home to check the 

exhaust vent for the furnace and found it partially blocked with 

accumulated ice. He tapped the ice off the vent, told the Waltees 

to air the house out, and that the furnace would now function 

properly. 

On the morning of January 23, 1969, at about 10:OO a.m. 

the entire Kenneth Waltee family was found dead in their home by 

the sheriff-coroner, who concluded that they must have died some 

time before midnight the night before. It was subsequently determined that the cause of death was carbon monoxide poisioning. 

The sheriff-coroner was the first person to enter the Waltee home 
and he testified that all of the windows were closed. He said 

the place was "as tight as a drum", and the snow outside of the 

home was several feet deep so that it covered at least one of 

the vents under the home that normally was used to supply fresh 

air for the combustion chanber of the furnace. 

Kenneth and Sandra Waltee were married November 8, 1963, 

and except for occasional visits with their respective parents 

they maintained their own home separate and apart from their 

parents. Neither of them contributed any financial assistance 

to their respective parents subsequent to their marriage. On 

the contrary, the parents occasionally gave financial assistance 

to the young couple. 

At the conclusion of the evidence the trial court ruled, 

as a matter of law, that there was no evidence to support either 

of defendant's affirmative defenses of assumption of risk or 

contributory negligence. 

Appellant has specified three issues for review. 

1. The court erred when it dismissed the affirmative 

defenses of contributory negligence and assumption of risk. 

Contributory Neqliqence, Any negligence by the Waltees, if 

there was any, is immaterial in this case. Before this defense 

could be submitted to the jury there would have to have been 

evidence showing, or tending to show, that such negligence was 

the cause of the injury. Stahl v. Farmers Union Oil Co., 145 Mont. 

106, 114, 399 P.2d 763; DeVerniero v. Eby, - Mont . - , 496 

P.2d 290, 29 St.Rep. 273; Stephens v. Brown, - Mont . - , 503 

P.2d 667, 29 St-Rep. 986. Where, as here, there was no evidence 

that the injury was caused by the Waltee's negligence, if any, 

the trial court properly struck the defense of contributory negligence. 
Assumption of Risk. Before this defense can be submitted to 

the jury there must be some evidence in the record that the 

injured party had: (1) knowledge, actual or implied, of the 

particular condition; (2) appreciation of this condition as 

dangerous; (3) voluntarily remained or continued in the face of 

the known dangerous condition; (4) received an injury resulting 

as the usual and probable consequences of this dangerous condition. DIHoodge v. McCann, 151 Mont. 353, 363, 443 P.2d 747. 

The evidence shows defendant's repairman had advised the Waltees 

that the dangerous condition had been repaired and that it would 

be safe for them to remain in the house. Therefore, defendant 

did not sustain the burden of carrying forward the evidence to 

sustain this defense and the trial court properly struck the 

defense. 

2. That the verdicts were excessive. 

It is appellant's contention that any verdict could not 

exceed the amount of the specific pecuniary loss testified to in 

the evidence and as there was no direct evidence on this point 

the verdicts are excessive. It has long been the law of this 

state that direct evidence of specific pecuniary loss in death 

cases is unnecessary. In Burns v. Eminger, 84 Mont. 397, 411, 

276 P. 437, the court said: 

" * * * any award must, of necessity, be based 

upon conjecture and surmise, and any amount of 

testimony would be of little aid to the jury. 

The matter must be left largely to the judgment and common sense of the ordinary jury 

called to determine it * * *". 

Appellant contends the verdicts are so excessive as to 

show that they were given under the influence of passion and 

prejudice. Damages must be left to the enlightened consciences 

of the jurors, aided by the circumstances of each particular 

case. Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 95, 111 
P. 348. The test for determining whether a verdict is excessive 

has been stated in Jewett v. Gleason, 104 Mont. 63, 71, 65 P.2d 

"The rule in such a situation is no different 

from that obtaining in all controverted fact 

issues properly submitted to juries. It is not 

a question of the amount this court would have 

awarded under the circumstances. It is not the 

amount which in our opinion would compensate the 

injured party; rather it is a question of what 

amount of damages will the record in the case 

support when viewed, as it must be, in the light 

most favorable to the plaintiff. It is when the 

testimony - the facts of the case - fails to 

support and justify a verdict and judgment that 

the conscience and understanding of the court 

are shocked. " 

Also see: Parini v. Lanch, 148 Mont. 188, 194, 418 P.2d 861; 

Sanders v. Mount Haggin Livestock Co, - Mont . , 500 P.2d 

397, 29 St.Rep. 686; Kelleher v. State, - Mont . - , 503 P.2d 

29, 29 St.Rep. 897. The facts of this case support and justify 

the verdict. 

3. The trial court erred when it failed to give certain 

proposed instructions. 

Appellant's proposed instruction No. 12 was refused by 

the trial court, on its own motion, on the grounds that it would 

tend to confuse the jury. Appellant made no offer to amend the 

proposed instruction or to offer other instructions which would 

explain it, thus meeting the court's objection. Under these 

circumstances appellant cannot now object to the trial court's 

refusal to give the offered instruction. In Platt v. Clark, 

141 Mont. 376, 380, 378 P.2d 235, this Court said: 

"The record shows that the refusal of said 

instruction was acquiesced in by the plaintiff. No objection was made nor was an exception taken to the refusal of the court to give 

it. Plaintiffs therefore cannot be heard at 

this stage of the appeal to raise this objection. " 

Other proposed instructions refused by the trial court 
pertain to the affirmative defenses; as such defenses were 

excluded, those instructions were properly denied. 

The judgment of the is ict court is affirmed. 

------ -- 

Hon. Alfr d . Coate, District Judge, 

sitting in place of Mr. Justice John 

C. Harrison. 

/ ~!ef Justice 

sitting in place of Mr. Justice 

Gene B. Daly.