No. 83-123 

IN THE SUPREME COURT OF THE STATE OF YONTANA 

1984 

CONRAD GEE, 

Plaintiff and Appellant, 

EVERETT EGBERT, LARRY BUSCH, llIDWEST 

WELDING, INC., MATZINGER ELECTRIC, 

INC., and YELLOWSTONE HYDRAULICS, INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable W. W. Lessley, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Wellcome & Frost; Albert A. Frost, Bozeman, Montana 

For Respondents: 

P. Keith Reller, Helena, Montana (Busch) 

Dwaine Roybal, Billings, Montana (Egbert) 

Gig Tollefsen, Bozeman, Montana (Midwest Electric) 

William E. Jones, Missoula, Flontana (Matzinger Electric) 

Gregory Morgan, Eozeman, Montana (Yellowstone Hydraulics) 

Submitted on Briefs: November 10, 1993 

Decided: March 29, 1984 

Clerk 
Mr. 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-cia1 District, Gallatin County. This 

case was a "th.ird pa.rtyW action 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 damages based on strict liability 

in tort, on negligence, and on breach of warranty. Gee was 

injured when he attempted to remove a chef's jacket which had 

become lodged between the floor of a dumbwaiter and the 

landing sill of the upper floor of the Cartwheel Restaurant. 

After unsuccessfully attempting to dislodge the jacket from 

outside the dumbwaiter, Gee entered the dumbwaiter and pulled 

on the jacket. Suddenly, the dumbwaiter broke loose and 

descended. Plaintiff's arm was caught between 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 Corners near 

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 

reputation as a builder. 
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 the building, and its general size 

and weight requirements, dictated by its proposed use in 

hauling carts of dishes and a thermidor heating 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.bout a year when the accident occurred. In that period of 

time he worked as a dishwasher and did odd jobs. Part of his 

duties included unloading from the dumbwaiter in the basement 

of the premises, materials and produce that had been loaded 

on the dumbwaiter by truck drivers. He testified that he had 

never ridden i.n the dumbwaiter. It was operated by pushing 

buttons which raised or lowered it from floor to floor. We 

have already described the incident which brought about Gee's 

injuries on July 19, 1980. 
After the jury verdict, plaintiff made post-trial 

motions which were by the court denied. 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 or he 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 that antagonistic. They are all cl-aiming no 

defect, no negligence, we aren't responsible, but there's not 

the antagonism that we 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 selection of the jury. No specific obiection was made by 

plaintiff's counsel at that time. 
The cause came on for jury trial, prospective iurors 

were examined on voir dire by all of counsel, and thereafter 

the parties exercised their peremptory challenges by 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 challenges by 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 the peremptory 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 Leary v. Kelly Pipe Company (1976), 169 Mont. 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 suffered material injury from the actions of 

the court, and (3) that as a result thereof, one or more 

objectionable jurors sat on the case. 169 Mont. 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 the District Court 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 the Leary test because 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 challenges here. 

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-t each defendant appeared to be 
adverse and. would be all-owed four peremptory challenges. The 

minutes further state that the plaintiff 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, one week before actual trial 

commenced. 

11. 

Instructional Error 

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 the person or property of another caused by 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 failure to do 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.lty Company 

(1944), 116 Mont. 6, 152 P.2d 137. 

Plaintiff Gee claims error in the court's refusal of two 

further instructions offered by him: 

"Instruction No. 43 
"The manufacturer of a product that is reasonably 

certain to be dangerous if negl-igently made, 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 

safely used in a manner and for a purpose for which 

it was made. 

A fa-ilure to fulfill that duty is negligence." 

"Instruction No. 44 

"You are instructed that a manufacturer of a 

product that is rea-sonably certain 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 a manner and for 

the purpose it wa.s made. 

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 

defendant Busch (the former premises owner) was held, because 

Gee claims a separate and higher duty of care was owed to him 

by the defendant contractors. 

In making this argument, Gee relies upon Williams v. 

Montana National Bank of Rozeman (1975), 167 Mont. 24, 534 
P.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 name was on the check when the wife 

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 Commercial Code are not specified in Williams, but we 

note that section 30-4-103(3), MCA, provides that action or 

non-action by a hank approved by the Uniform Commercial Code 

or pursuant to the Federal Reserve 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 which must be 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 

other basis that we can determine that would require that the 
jury be instructed to apply a higher Level of care to 

independent contractors than to the landowner, Busch. Indeed 

the standard of care applicable to such entities could not be 

different from what the court instructed, tha.t is, 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 be put in error on such grounds. 

Gee contends that the District Court gave two other 

instructions which he claims are error. One was Instruction 

No. 10: 

"A person who sells land is not subject to 

liability for physical harm caused to the buyer 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 the buyer took possession." 

Gee also objects to Instruction No. 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 

the various safety codes." 

Gee also contends that Instruction No. ll conflicts with 

the court's Instruction No. 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 work 
which 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 for bodily harm 

proximately caused to them by the failure of the 

contractor to exercise reasonable care 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 is no 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 instructions and 

so may not be considered by us on appeal. Richland County v. 

Anderson (1955), 129 Mont. 559, 574, 291 P.2d 267, 275. 

Gee contends that the giving of the Instructions Nos. 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 instructions on the ground of objection given at 

the settlement of instructions, that the subject was covered 

by court's Instruction No. 8, above. The District Court did 

not err in overruling that objection. 

C 

B. Instructions relating to strict liability in tort. 

Gee contends that the court erred in failing to give his 

offered Instruction No. 24, as follows: 

"You may find that the dumbwaiter was defective and 

unreasonably dangerous if you find that it was 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), 176 
Mont. 98, 576 P.2d 71.1. In Brown we held that patent as well 

as latent design defects could impose strict liability on a 

manufacturer under certain cond-itions. Gee's contention here 

is that the al-leged design defect was latent, so as to 

entitle him to the instruction. Offered Instruction No. 24 

was obviously too broadly stated, end inapplicable to the 

facts in this case. The dumbwaiter was jammed because 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 this heading, Gee also claims error in the refusal 

of the District Court to give the following instruction: 

"When a person's lawful employment requires that he 

work in a dangerous location or a place that 

involves unusual possibiliti-es of injury, or 

requires that in the line of his duty he take risks 

which ordinarily a reasonably prudent person would 

avoid, the necessities of such a situation, insofar 

as to limit the caution he can take for his own 

safety, lessen the amount of caution required of 

him by law in the exercise of ordinary care." 

There was no support in the record for this instruction. 

There is no evidence tha.t Gee's employment required that he 

take risks which ordinarily a reasonably prudent person would 

avoid. Other evidence raised a fact question fox the jury as 

to whether Gee had been instructed not to enter upon the 

dumbwaiter. 

Gee al.so raises under this heading, the refusal of the 

court to give his proposed. Instruction No. 27: 

"You are instructed that compliance with a relevant 

industry standard at the time of construction of 

the dumbwaiter at the Cartwheel Inn Restaurant does 

not prevent a finding of defectiveness or 
negligence where a skillful and prudent contractor 

would take additional precautions." 

Again, the instruction is unsupported in the evidence. 

For the reasons foregoing, we find no instructional 

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

Gee. 

Buildins Code Exhibits 

Gee claims error in the admission to evidence by the 

court of defendant Egbert's exhibits A and B, copies of the 

1967 and 1979 Building Codes 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 

Building Code, did contain the National Elevator Code. 

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 1979 Building Code. 

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 to understand 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 Damages 
Gee assigns error to the action of the District Court in 

not submitting to the jury his claim for punitive damages 

against the defendants. 

The court acted at the close of the plaintiff 's case 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. It would 

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 

actual damages. Section 27-1-221, MCA. 

Exemplary damages may 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 intent will 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 is 
unjustifiable. Dvorak v. Huntley Project Irrigation District 

(1981), 196 Mont. 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 dumbwaiter at the 

appropriate floor level. In this case, the hatch door was 

operated by a lever device that caused the doors to open as 

the dumbwaiter approached the floor level. 

When we look at the evidence that is best for the 

plaintiff, it fails to establish a basis for punitive 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 constructed to carry humans. The record is bare that the 

defendants, or any of them, through their employees or 

otherwise, knew of 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 other words, 
there is no basis upon which to imply malice or wantonness on 

the part of any of the defendants. The District Court was 

correct in taking from the jury the consideration of punitive 

damages. Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122, 

580 P.2d 915. 

v. 

Evidence To Support The Jury Verdict 

Counsel contends that the verdict here is against the 

evidence because substantial. credible evidence existed to 

support a verdict for the plaintiff. 

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 

dumbwaiters and elevators, indicated that there was a failure 

by the defendants to use due care, as proper doors and safety 

devices were not incorporated in the dumbwaiter. Gee 

contends these failures rendered the dumbwaiter defective and 

unreasonably dangerous, and that the jury disregarded this 

evidence. 

The District Court submitted to the jury a special 

verdict in which they were asked, "Were the defendants guilty 

of negligence which was the proximate cause of the claimed 

damages?" The jury answered as to Everett Egbert, 2 yes 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, 

12 no. 

The testimony ofthe experts respecting proper 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 jury was whether any evidence of negligence 
proximately caused the injuries sustained by plaintiff. The 

jury found that it did 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, 90 A.L.R.2d 1339. It is not the function of this 

appel.la.te court 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 judge made 

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.gainst pl-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 counsel made no attempt during the trial to alert th.e 

court that it might be subjecting itself to such an a-rgument 

on appeal.. The way 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 itself will 

have an opportunity to weigh its conduct and to determine, at 

least, whether the motion should be granted. In fairness 

this should be done in all such cases. Otherwise, though we 
do not find so here, it can be argued that the lawyer who 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), 626 P.2d 841, 38 St.Rep. 550. 

Because proper objection or motion for mistrial was not 

made in the District Court, we find no error on this ground 

of appeal. 

VII. 

Taxing of Costs 

The final issue raised by 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 

cost bill 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. Costs may 

be allowed against the losing party by the District Court 

only for such depositions as were used as evidence at the 

trial, or for purposes of impeachment during the trial. The 

costs in this case should be retaxed so that plaintiff is 

responsible only for such depositions as were used 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