No. 83-123 INTHE SUPREME COURT OF THE STATEOF YONTANA 1984

CONRAD GEE, Plaintiff andAppellant,

EVERETT EGBERT, LARRY BUSCH,llIDWEST WELDING, INC.,MATZINGER ELECTRIC, INC., and YELLOWSTONEHYDRAULICS,INC., Defendantsand Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District, Inand for the County of Gallatin, The Honorable

### W. W. Lessley,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Wellcome & Frost;AlbertA. Frost,Bozeman, Montana

For Respondents: P. Keith Reller,Helena,Montana (Busch) DwaineRoybal, Billings,Montana (Egbert) Gig Tollefsen,Bozeman, Montana (Midwest Electric) William E. Jones,Missoula, Flontana (Matzinger Electric) Gregory Morgan,Eozeman,Montana (Yellowstone Hydraulics)

Submittedon Briefs: November 10, 1993 Decided: March 29, 1984

ClerkMr. Justice John C. Sheehy del-ivered the Opinion of the Court. Appeal by the pl-aintiff,Conrad Gee, from a judgment against him based on jury verdicts entered in the District Court, Eighteenth Judi-cia1District, Gallatin County. This

case was a "th.irdpa.rtyWaction incident to a.work related injury and in part was the subject of a prior opinion in Gee

v. Cartwheel Restaurant (Mont. 1982), 642 P.2d 1070, 39 St.Rep. 597. Gee sought to recover damagesbased on strict liability in tort, on negligence, and on breach of warranty. Gee was injuredwhen he attempted to removea chef's jacket which had become lodged between the floor of a dumbwaiter and the landing sill of the upper floorof the Cartwheel Restaurant. After unsuccessfully attempting to dislodge the jacket from outside the dumbwaiter, Gee entered the dumbwaiterand pulled

on the jacket. Suddenly, the dumbwaiter broke loose and descended. Plaintiff's armwas caughtbetween the frame work of the dumbwaiter car and the dumbwaiter shaft. In late 1.970 and early 1971, Larry Busch hired Everett Egbert to construct a 12-sided building which would later become the Cartwheel Inn-Restaurant,at the Four Cornersnear Bozeman. The plan for the 12-sided building was devised by Busch and Egbert and reduced to a drawing from which the building was built. Egbert consulted with an engineer for assistance with the structural components, and with mechanical, plumbing and electrical experts for their respective installations. Busch contracted with Egbert because previously Egbert had built a house for him and had done some other work, and Busch had relied on Egbert's reputationas abuilder.During the course of construction, either Busch or Egbert decided that installation of a dumbwaiter in the building would be useful. Neither remembered whose idea it

was. Busch had no specific requirements for the dumbwaiter, except for its location in thebuilding, and itsgeneral size and weight requirements, dictated by its proposed use in hauling carts of dishes and a thermidorheating cart. Egbert contacted Midwest Welding for assistance in building the dumbwaiter car; Mid.west in turn contacted. Yellowstone Hydraulics. Ultimately, Egbert built the shaft for the dumbwaiter in the building, Midwest fabricated a platform or dumbwaiter car, Yellowstone Hydraulics supplied the hoist and motor mechanism, Midwest Welding installed the system, and Matzinger Electric connected the electrical controls. Egbert devised a door to open and close with the dumbwaiter. On completion of the Cartwheel Restaurant, Rusch operated it from March, 1971 until the fall of 1974. He leased it, repossessed it, and leased it aga.in. He sold it outright to one Warburton, in February 1976. Gee had been employed at the Cartwheel Restaurant for a.bouta year when the accident occurred. In that period of timeheworked as adishwasherand did odd jobs. Part ofhis duties includedunloading from the dumbwaiter in thebasement of the premises, materials and produce that had been loaded

on the dumbwaiterby truck drivers. He testified thathe had never ridden i.nthe dumbwaiter. Itwas operated by pushing buttons which raised or lowered it from floor to floor. We have already described the incidentwhich brought aboutGee's injuriesonJuly 19, 1980.After the jury verdict, plaintiff made post-trial motions which were by the courtdenied. This appeal ensues. J. Peremptory Challenges The first issue raised by Gee is whether the District Court erred in allowing each defendant four peremptory challenges. The number of peremptory challenges to be granted to each party was a subject discussed at the pre-trial conference. The court queried counsel for the defendants as to whether they were antagonistic toward each other in their positions in the case. Two of defendants' counsel indicated that there was antagonism between all of them in that each

was pointing a finger at one or others of the defendants as responsible for the injuries to the plaintiff. All of the defendants were independent or independent contractors and each would claim in the law suit that not it orhe but those of the other defendants were responsible. Counsel for plaintiff at that time indicated first that the "antagonism question does bother me. 

# . . and I don't think it's clear that they're all thatantagonistic. They are all cl-aimingno defect,no negligence,we aren't responsible,but there's not the antagonism thatwe had in the Kuhnke case.

# .." However, at the end of the col.loquies between the court and defendants' counsel the plaintiff's attorney told the court 1 withdraw my comment after hearing from counsel." Thereupon the District Court made its ruling that it would grant each party to the action four peremptory challenges to the selectionof the jury. No specific obiectionwasmade by plaintiff's counselat that time.The cause came on for jury trial, prospective iurors

were examined on voir direby all of counsel,and thereafter theparties exercised their peremptory challengesby denoting the same on a form provided by the Clerk of the District Court. The form indicates that the plaintiff and each of the parties defendant exercised all of their four peremptory challenges. However, there is nothing on the record which would indicate that plaintiff made any further objection, requested further peremptory challenges,or objected to the exercise by all of the parties defendant of some twenty (20) peremptory challengesby them. On appeal, Gee's counsel complains that the District Court erred in granting the number of challenges,apparently

as inherent error, because no contention is made in the briefs or in the record that Gee was prevented through the grant of the peremptory challenges from getting a fair jury to try his case, unless we are to consider the adverse special verdicts against Gee as an indication of prejudice. In other words, from all that appears 

### of record, the cause

was fairly and fully tried by the jury selected after the exercise of theperemptory challenges. Essentially we summed up the law with respect to the granting of extra peremptory challenges in Adams v. Cheney

(Mont. 19831, 661 P.2d 434, 442, 40 St.Rep. 383, 391. Succinctly, section 25-7-224, MCA, entitles each party to four peremptory challenges. In Lauman v. Lee (Mont. 1981), 626 P.2d 830, 38 St.Rep. 499, this Court approved the granting of separate peremptory challenges to co-defendants who occupy hostile positions toward each other. We held however in Learyv. Kelly PipeCompany (1976),169Mont. 511, 549 P.2d 813, and in Ashley v. Safeway Stores, Inc. (1935)

## ,100 Mont. 312, 47 P.2d 53, that the complaining party must show he has been prejudiced by the grant of extra peremptory challenges. We sta.ted in Leary that the complaining party must show (1) that he exhausted his peremptory challenges, (2) that he has sufferedmaterial injury from the actions of the court, and (3) that as a result thereof, one or more objectionable jurors sat on the case. 169Mont. at 516, 549 P.2d at 816. In Hunsaker v. Bozeman Deaconess Foundation (1978)

## , 179 Mont. 305, 588 P.2d 493, this Court, recognizing the problem that proving prejudice may be practically impossibl.e, required that district courts consider the problem of peremptory challenges at the pre-trial conference,which was done in this case, and provide a record which expressly sets forth the reasons for its ruling and the facts on which it relies in making its decision. In this case, the exchange between theDistrictCourt and defendants' counsel respecting their antagonism was brief. However, its appears to have been accepted by counsel for the plaintiff. But most importantly, Gee here fails theLeary testbecause the record before us does not show that Gee suffered material injury from the action of the court or that because of the additional challenges, one or more objectionable jurors sat

on the case. We find no error therefore in the grant of additional peremptory challengeshere. It is to be noted in connection with this issue that there were two pre-trial conferences. At the preliminary pre-trial conference, held on December 4, 1981, the minutes of the District Court, which are included as an appendix to appellant's brief, state tha-teach defendant appeared to beadverseand.would be all-owedfourperemptory challenges. The minutes further state that theplaintiff objected to this and "will brief it if necessary." No brief on the subject was filed. What we have had to say about the pre-trial conference and the lack of objection of the plaintiff to the grant of the peremptory challenges occurred at the second pre-trial conference on October 13, 1982, oneweek before actual trial commenced. 11. InstructionalError Plaintiff Gee subdivides this issue in his brief, claiming error in the instructions given or refused with respect to negligence, and again with respect to strict liability in tort. A. Instructions relating to negligence. The court,at Gee's request,gave a general instruction on negligence, to the effect that every person is responsible for injury to theperson orproperty of another causedby the want of ordinary care or skill (see section 27-1-701,MCA), and further stating that negligence means want of ordinary

care or skill which exists when there is a failuretodo that which a reasonable and prudent person would have ordinarily done under the circumstances of the situation,or doing what such person under the existing circumstances would not have done. See Stocking v. Johnson Flying Service (1963), 143 Mont. 61, 387 P.2d 312 ;Ahlquist v. Mulvaney Rea.ltyCompany

(1944),116Mont. 6,152 P.2d 137. Plaintiff Gee claims error in the court's refusal of two further instructions offeredby him: "InstructionNo. 43"Themanufacturer of a product that is reasonably certain to be dangerous if negl-igentlymade, has a duty to exercise reasonable care in the design, manufacture, testing and inspection of any product and in the testing and inspection of any component parts made by another so that the product may be safelyused in amanner and forapurpose forwhich itwasmade. A fa-ilureto fulfill thatduty isnegligence."

"InstructionNo. 44 "You are instructed that a manufacturer of a product that is rea-sonablycertain to be dangerous if negligently made has a dut.y to exercise reasonable care in the design, testing, and inspection and manufacture of the product so that the product may be safely used in amanner and for the purpose itwa.smade. failure fulfill that duty negligence."

The District Court refused the instructions on the grounds that they were inapplicable to this case since manufacturing not involved.. The District Court was clearly correct. Gee also argues that under his theory of the case, he

was entitled to further instructions delineating the various contractors' duties and especially requiring a higher standard of care than that normally chargeable to a lay person. "Without these additional instructions," says Gee, "it is impossible to determine if the jury applied a different or lower standard of care for the contractors." Gee argues that it would clearly be error if all the defendants

were judged by the same standard of care to which the defendantBusch (the formerpremises owner)washeld,because Gee claims a separateand higher duty of care was owed to him by the defendantcontractors. In making this argument, Gee relies upon Williams v. Montana National Bank of Rozeman (1975), 167 Mont. 24, 534P.2d 1247. In Willia.ms, a husba.nd sued the bank in a situation where the plaintiff's wife had signed a check to an unidentified man for $1.26. The stranger made out the check in the wife's presence, leaving room enough on the lines of the check so that later he could raise the check from $1.26 to $6,841.26. No payee's namewas on the check when thewife signed it for the stranger. The stranger took the check to the bank and received payment for the raised amount. The husband sued the bank, and the court submitted the case to the jury on the theory of ordinary negligence. This Court reversed, saying that the bank was entitled to have the jury instructed upon the provisions of the Uniform Commercial Code, as to reasonable commercial standards in the processing of checks. The applicable commercial standards in the Uniform CommercialCode arenot specified inWilliams,butwe note that section 30-4-103(3), MCA, provides that action or non-action by a hank approved by theUniform Commercial Code or pursuant to the FederalReserve Regulations or "operating letters" constitutes the exercise of ordinary care. Likewise, action or non-action by a bank consistent with clearinghouse rules or with general banking usage not disapproved by the Uniform Commercial Code, constitutes ordinary care. Thus,there are specific statutes relating to customs,standards, usages and rules whichmustbe considered in determining ordinary care used by banks in cases such as Williams. Unlike Williams, there is in this case no applicable standards which would relate by statute or regulation to the defendants, or any of them, in their duties regarding the installation of the dumbwaiter. There is no statutory or otherbasis thatwe can determine thatwould require that thejury be instructed to apply a higher Level of care to independent contractorsthan to the landowner,Busch. Indeed the standard of care applicableto such entities could notbe different fromwhat the court instructed,tha.tis,each party had the duty of exercising such ordinary care as reasonably prudent persons would exercise in the same or similar circumstances. Beyond the instructions which Gee offered, which we have set forth above and which are clearly inapplicable here, Gee offered no further instructions relating to the duty of care by any of the other defendants in their respective fields. The reason is obvious: there

were no statutes or rules applicable to such manufacturers at the time of the construction here. The District Court may not beput in error on such grounds. Gee contends that the District Court gave two other instructions which he claims are error. Onewas Instruction No. 10: "A person who sells land is not subject to liability for physical harm caused to thebuyer or others while on the land after the buyer has taken possession, by any dangerous condition, whether natural or artificial, which existed at the time that thebuyer tookpossession." Gee also objects to InstructionNo. 11: "A contractee-owner is not liable for the acts of a.n independent contractor or his servants. The owner's right to oversee that the work of various independent contractors proceeds satisfactorily imposes on the owner no duty to insure that any contractor's work is done in compliance with all thevarious safety codes."
Gee also contends that InstructionNo. llconflicts with the court's InstructionNo. 8,which stated: "Ordinarily, one who employs an independent contra.ctor

### is not liable for the acts or omissions of such contractor or its employees. However, one who employs an independent contractor to do workwhich the employer should recognize as likely to create during its progress a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability forbodily harm proximately caused to them by the failure of the contractor to exercise reasonablecare to take such precautions."

Court's Instruction No. 8 is by its terms limited to dangerous situations existing during the progress of the construction.. There isno conflict therefore between court's Instruction No. 8 and court's Instruction No. 11. ~ee's further objections to the court's Instruction No. 10, now expressed, are based upon Restatement of Torts, 2nd., S$ 410-415. In any event, however, these objections were not raised at the time of the settlement of the instructionsand so may notbe consideredby us on appeal. Richland Countyv. Anderson (1955),129Mont. 559, 574, 291 P.2d 267, 275. Gee contends that thegiving of the InstructionsNos. 10 and 11 amounted to a peremptory charge to the jury to find for the defendant Busch. We however find no error arising out of these instructionson the ground of objection given at the settlement of instructions, that the subjectwas covered by court's InstructionNo. 8,above. TheDistrict Court did not err in overruling that objection. C B. Instructions relating to strict liability in tort. Gee contends that the courterred in failing to givehis offered InstructionNo. 24, as follows: "Youmay find that the dumbwaiterwas defective and unreasonably dangerous if you find that itwas not functioning as intended at the time of the accident, and the failure of the dumbwaiter to function as intended was a proximate cause of the plaintiff's injury."

Gee contends he was entitled to this instruction under Brown v. North American Manufacturing Company (1978), 176Mont. 98,576 P.2d 71.1. In Brownwe held thatpatent as well

as latent design defects could impose strict liability on a manufacturerunder certain cond-itions. Gee's contentionhere is that the al-legeddesign defect was latent, so as to entitle him to the instruction. Offered InstructionNo. 24

was obviously too broadly stated, end inapplicable to the facts in this case. Thedumbwaiterwas jammedbecause of the interposition of the chef's jacket. The thrust of Gee's case

was that the design of the doors to the dumbwaiter shaft improperly permitted a chef's jacket to enter and get caught between the floor of the dumbwaiter and the sill. Instruction No. 24 does not focus on that issue in any

manner. Under thisheading, Gee also claims error in the refusal of the District Court to give the following instruction: "Whena person's lawful employment requires thathe work in a dangerous location or a place that involves unusual possibiliti-es of injury, or requires that in the line of hisduty he take risks which ordinarily a reasonably prudent person would avoid, the necessitiesof such a situation, insofar as to limit the caution he can take for his own safety, lessen the amount of caution required of himby law in the exercise of ordinary care."

Therewasno support in the record for this instruction. There is no evidence tha.tGee's employment required that he take risks which ordinarilya reasonablyprudent person would avoid. Other evidence raised a factquestion fox the jury as to whether Gee had been instructed not to enter upon the dumbwaiter. Gee al.soraises under this heading, the refusal of the court to givehis proposed.InstructionNo. 27: "Youare instructed that compliance with a relevant industry standard at the time of construction of the dumbwaiterat the Cartwheel Inn Restaurant does not prevent a finding of defectiveness ornegligence where a skillful and prudent contractor would take additionalprecautions." Again, the instructionis unsupported in the evidence. For the reasons foregoing, we find no instructional

error in this case on the grounds raised by the plaintiff, Gee.

BuildinsCode Exhibits Gee claims error in the admission to evidence by the court of defendant Egbert's exhibitsA and B, copies of the 1967 and 1979BuildingCodes respectively. Exhibit A, the 1967 Building Cod-e,contains no mention of or reference to an elevator code, though one was in existence at the time (Exhibit 15). Exhibit R, the 1979 BuildingCode,did contain the National ElevatorCode. Testimony in the case indicated that at the time of construction here, there was no statute or other legal regulation making compliance with the elevator code mandatory. Such compliance became mandatory after the construction of the dumbwaiter, and the mandatory necessity of compliance is reflected in the 1979BuildingCode. The objection nade at the time of the admission to evidence of Egbert's exhibits A and B was that the exhibits

were not relevant. The court overruled the objection. It

was clearly relevant for the jury tounderstand that in 1971, when the dumbwaiter was constructed, the building code in effect at the time did not contain the elevator code,which would have covered dumbwaiters. No error occurred here. IV. Punitive DamagesGee assigns error to the action of the DistrictCourt in not submitting to the jury his claim for punitive damages against thedefendants. The court acted at the close of the plaintiff'scase in chief. At that point the evidence indicated that a Mr. Merry, of Yellowstone Hydraulics, Inc., recalled discussing safety devices with Mr. Westlake of Midwest Welding, Inc. Merry had no contact with Egbert, the contractor. Itwould have been Westlake who would have relayed any information about door construction on dumbwaiters to Merry or to Egbert. Westlake could not recall what Merry had said to him about safety devices on the dumbwaiter, and Egbert did not consult with anyone other than Midwest Welding, Inc., about the construction of elevators at any time here in question. Gee contends that these facts presented a question to the jury as to whether Egbert and Midwest Welding, Inc. were guilty of actual or presumed malice as a basis for punitive damages. A jury may give damages for the sake of example and by way of punishment if the jury finds that the defendant or defendants have been guilty of oppression, fraud, or actual

or presumed malice, in actions for tort, in addition to the actualdamages. Section 27-1-221,MCA. Exemplary damagesmay be awarded in cases where there is

no direct evidence of fraud or malice or gross negligence. They may be allowed when there is evidence of such recklessness and wanton disregard of another's rights that malice and evil intentwill be inferred. If a defendant is grossly and wantonly reckless in exposing others to dangers, the law holds him to have intended the natural consequences of his act, and treats him as guilty of a willful.wrong. Malice in law is implied when the defendant's conduct isunjustifiable. Dvorakv. Huntley Project IrrigationDistrict (1981), 196Mont. 167,174,639 P.2d 62, 66. It was apparently one of plaintiff's theories in this

case that because of the construction of the hatch doors on the dumbwaiter, it was possible for the chef's jacket to become lodged so as to stop the operation of the dumbwaiter. Evidence was introduced that hatch doors should be so constructed that they do not open while the car is moving. This should be accomplished by the use of safety devices and interlocks that permit the opening of the hatch doors only when the dumbwaiter itself has come to a stop. Levelling switches should control the stopping of the dumbwaiterat the appropriate floor level. In this case, the hatch door was operated by a lever device that caused the doors to open as the dumbwaiterapproached the floor level. When we look at the evidence that is best for the plaintiff, it fails to establish a basis forpunitive damages against any of the defendants. The elevator industry had promulgated a safety code for elevator doors including dumbwaiters in 1965. Such standards were not part of an enforceable building code when this dumbwaiter was const.ructed. It is not shown that these contractors were familiar with such industry standards. The dumbwaiter was not constructedto carryhumans. The record isbare that the defendants, or any of them, through their employees or otherwise,knewof elevator standards that require interlocks

on the doors, or that the defendants wantonly or purposely disregarded the existence of such standards. Nothing in the testimony indicates that any of the defendants could have acted to remedy the installation based upon knowledge or information that such injuries might occur. In otherwords,there is nobasis upon which to implymalice orwantonness on the part of any of the defendants. The District Court was correct in taking from the jury the consideration of punitive damages. Fergusonv. Town Pump, Inc. (1978),177Mont. 122, 580 P.2d 915. 

## v. EvidenceTo SupportTheJury Verdict Counsel contends that the verdict here is against the evidence because substantial. credible evidence existed to supportaverdict for theplaintiff. Gee points out that the uncontradicted opinions of Mr. Merry of Yellowstone Hydraulics, Inc. and witness Norman Priest, the two experts knowledgeable in the area of dumbwaitersand elevators, indicated that therewas a failure by the defendants to usedue care,asproper doors and safety devices were not incorporated in the dumbwaiter. Gee contends these failuresrendered thedumbwaiter defective and unreasonably dangerous, and that the jury disregarded this evidence. The District Court submitted to the jury a special verdict inwhich theywere asked, "Were the defendantsguilty of negligence which was the proximate cause of the claimed damages?" The jury answered as to Everett Egbert, 2yes and 10 no; as to Midwest Welding, Inc., 1 yes and 11 no; as to Yellowstone Hydraulics, Inc., 12 no; and as to Larry Busch, 12no. The testimony ofthe experts respectingproper doors and safety devices for a dumbwaiter, standing alone, was insufficient to justify a verdict against any of the defendants for lack of proximate cause. A further question propounded to the jurywaswhether any evidence of negligenceproximately caused the injuries sustained by plaintiff. The jury found that itdid not in each case. The jury may believe the testimony of one witness and disbelieve that of another or any number of others, and the determination of the jury in that regard is final. Batchoff

v. Craney (1946), 119 Mont. 157, 172 P.2d 308. The credibility of witnesses is generally a matter for determination by the jury under proper instructions from the court. Cottrell v. Weinheimer (196O), 137 Mont. 347, 351 P.2d 543, 90A.L.R.2d 1339. It is not the function of this appel.la.tecourt to overturn decisions on findings of fact made by a competent jury properly instructed on how to view the evidence. We find no error here. VI

# . Judicial Conduct Rere counsel for Gee contends that the trial judgemade numerous remarks critical of the pl-aintiff's case or plaintiff's presentation of his case, the cumulative effect of which prejudiced the jury a.gainstpl-aintiff 

### 's cause a.nd his counsel. It may be that the trial judge interrupted too frequently in this case. The over-weighing factor, however, is that counselmade no attempt during the trial to alert th.e court that itmight be subjecting itself to such an a-rgument

on appeal.. Theway to preserve such an issue for appeal, as the cases relied upon by the defendants state, is to object to the court's actions and to ask for a mistrial based upon improper judicial conduct. Then the trial court itselfwill have an opportunitytoweigh its conductand to determine, at least, whether the motion should be granted. In fairness this should be done in all such cases. Otherwise,thoughwedo not find so here, it canbe argued that the lawyerwho is a victim of judicial misconduct is gambling on a win, and keeping the conduct in reserve in case he needs a point for appeal. See Evangeline v. Billings Cycle Center (Mont. 1981), 626P.2d 841, 38 St.Rep. 550. Because proper objection or motion formistrial was not made in the District Court,we find no error on this ground of appeal. VII. Taxing of Costs The final issue raisedby Gee is that the court erred in taxing costs against him in favor 

### of the defendants. His objectioi~is to the allowance of the costs of depositions taken pre-trial. Some of the depositions were used in the trial. Counsel for respondent Egbert concedes on appeal, as he did at the hearing on the motion to retax costs, that his costbill should be stricken. Our examination of record indicates that the depositions taken in this cause were in a3.1 cases for the purpose and convenience 

### of the deposing party in marshaling their respective cases. Therefore the costs for such depositions must be borne by the deposing party. Lovely v. Eurroughs Corporation 119741, 165 Mont. 209, 527 P.2d 557. Costsmay be allowed against the losing party by the District Court only for such depositions as were used as evidence at the trial, or forpurposes of impeachment during the trial. The costs in this case should be retaxed so that plaintiff is responsibleonly for suchdepositionsaswereused during the trial.CONCLUSION The judgment of the District Court is affirmed. The

cause is remanded to the District Court for the purpose of retaxing costs in accordance with this opinion. No costs shall be awarded to the respondent, Everett Egbert.

We Concur: 

# a&,!$. vjg%kf Chief Justice