Mang v. Eliasson

• Decision Date: 11 September 1969
• Docket Number: No. 11604,11604
• Citation: 153 Mont. 431,458 P.2d 777
• Parties: M. C. MANG, Plaintiff and Respondent, v. Stanley ELIASSON and Ivanelle Eliasson, Defendants and Appellants.
• Court: Montana Supreme Court

Page 777

458 P.2d 777

153 Mont. 431

M. C. MANG, Plaintiff and Respondent, v. Stanley ELIASSON and Ivanelle Eliasson, Defendants and Appellants.

No. 11604.

Supreme Court of Montana.

Sept. 11, 1969.

Rehearing Denied Oct. 1, 1969.

Neil S. Keefer (argued), Billings, for appellants.

Thomas M. Ask (argued), Roundup, for respondent.

JAMES T. HARRISON, Chief Justice.

An appeal by defendants from a jury verdict and judgment for plaintiff in the amount of $10,174.98 in the district court of Musselshell County, Montana. Plaintiff brought the action to recover damages for a reduced yield of dryland alfalfa seed allegedly caused in 1967 by the negligence of defendants in allowing weeds from defendants' field to blow across fields of the plaintiff during a windstorm. Defendants answered denying any negligence, defending on the basis that damages sustained by plaintiff, if any, were caused by an unusual wind of high velocity, and therefore the acts complained of were not the proximate cause of plaintiff's injuries.

Plaintiff, among other lands, owns approximately 345 acres of dryland, located in two tracts at the north edge of Musselshell county along U. S. Highway 87, at the Winnett cut-off intersection. Of the land in question, tract #1 consists of approximately 290 acres, and is located immediately to the east of Highway 87 and to the north of the Winnett road; tract #2 consists of approximately 55 acres, and is located approximately one mile east of the intersection and south of the Winnett road. The Winnett road angles in a generally northeasterly direction from Highway 87. Both tracts were planted to dryland alfalfa, a perennial raised in strips with approximately ten feet of summer fallow in between. In 1967, as was the usual practice, the alfalfa was first cut for hay and then allowed to grow, with the second cutting being harvested for seed. The first cutting for hay was in mid-July with the plant growth period for the seed crop being after that date. The date of the alleged injury to plaintiff was mid-October.

Defendants, on a portion of their land located approximately one-fourth mile west of Highway 87, raised wheat by the strip farm method. On this tract, there were eleven strips, each strip being approximately 12 1/2 rods wide. During 1967, six strips were in summer fallow, with five strips being planted in winter wheat. Between defendants' land and plaintiff's tract #1, there was pastureland approximately one-fourth mile wide, three fences, two barrow pits, and Highway 87. Plaintiff's tract #2 was located approximately one and one-fourth miles east of defendants' land and to the south of the Winnett road.

Plaintiff contends that defendants failed to cultivate their summer fallow in a proper manner, and negligently allowed weeds, consisting mainly of rough pigweed to grow thereon; that defendants negligently cultivated said summer fallow in early October with a one-way plow which loosened the weeds and left them lying on the field in such condition to be blown away by the wind; that defendants knew or should have known that the winds blow very strongly in said area from the west and southwest, and that if weeds were left loose on the ground, they would be blown over and across plaintiff's land, damaging his alfalfa seed and fences, and cause plaintiff's field to become seeded with weeds similar to those on defendants' land.

Defendants contend that the land in question had been summer fallowed twice during the summer, in May and again in July; that in mid-September, half of the summer fallow had been plowed with a one-way plow to loosen the weeds; that a one-way plow partially buries the weeds as it turns them over; that on the night of October 18-19, 1967, a violent, unusual and unexpected windstorm arose, which storm was the worst in many years; that when the storm was over, many weeds had blown off defendants' summer fallow, both from that portion which had been cultivated and that which had not; that the wind was sufficiently severe to blow off cut, partially buried weeds and weeds that had not been summer fallowed and that the damage to plaintiff's alfalfa fields was caused by the violent and unusual windstorm, not by any negligent acts of defendants.

At the close of plaintiff's case, defendants made motions for a directed verdict, pursuant to Rule 50(a), M.R.Civ.P., and in the alternative, for summary judgment, pursuant to Rule 56(b), M.R.Civ.P. These motions were renewed at the close of all the evidence, in both instances being denied by the district court. Subsequently, defendants made motions for judgment notwithstanding the verdict, and in the alternative for a new trial. These motions were likewise denied by the district court.

Several issues have been raised on this appeal, but generally they resolve themselves into a single ultimate legal issue: Whether the district court erred in denying defendants' motions for a directed verdict. In discussing this issue, it is necessary to interrelate and answer the following question: Whether the plaintiff established a prima facie case that defendants were negligent in that they breached a legal duty owed to plaintiff. If this question is answered in the negative then the basic issue must be resolved in favor of the defendants. If answered in the affirmative plaintiff must prevail in all particulars. Accordingly, this opinion will treat the underlying question set forth above as the real issue presented for review herein.

Basically the reasonableness of the use of property by its owner must necessarily be determined from the facts and circumstances of each particular case as it arises by the application of appropriate provision or principles of law and the dictates of mutual and reciprocal justice. Further, before negligence can be predicated on any given act, back of that act must be sought and found a duty to the individual complaining, the observance of which duty would have averted the injury. The burden is upon plaintiff to prove the existence of that duty, and a breach thereof, by substantial evidence. It has long been the rule, enunciated in 1925 in Fisher v. Butte Electric Ry. Co., 72 Mont. 594, 602, 235 P. 330, 332, that:

'To sustain a recovery, the evidence relied upon, whether direct or indirect, must be substantial-more than a mere scintilla. (Citing cases.) A verdict cannot rest upon conjecture, however shrewd, nor upon suspicion, however well grounded.'

While the jurors are the sole judges of the facts, the question of whether or not there is substantial evidence in support of plaintiff's case is always a question of law for the court.

Section 19-103(16), R.C.M.1947, defines negligence as '* * * a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns.' In other words, negligence is described as conduct which falls below the standard established by law for the protection of others against unreasonable risk and necessarily involves the concepts of reasonableness and foreseeability.

To sustain a cause of action based on alleged negligence, the plaintiff must prove both negligence and proximate cause. Jackson v. William Dingwall Co., 145 Mont. 127, 134, 399 P.2d 236; Thompson v. Llewellyn, 136 Mont. 167, 346 P.2d 561. Firther, the essential elements of actionable negligence are the existence of a duty, the breach thereof and a resulting injury. Jackson v. William Dingwall Co., supra 145 Mont. at 134, 399 P.2d 236.

An additional test of actionable negligence is not what might have prevented a particular accident, but what reasonably prudent men would have done in the discharge of their...