                                        No.    13643

                I N T E SUPREME C U T O THE STATE O MONTANA
                     H           O R   F           F

                                              1977



RUSSELL BROWN,

                      P l a i n t i f f and Respondent,



JOHN WEBB, d/b/a
W B CATTLE COMPANY,
  EB

                     Defendant and A p p e l l a n t .



Appeal from:          D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
                      Honorable LeRoy McKinnon, J u d g e p r e s i d i n g .

Counsel o f Record:

         For A p p e l l a n t :

               McKeon and McKeon, M a l t a , Montana
               John C. McKeon a r g u e d , Malta, Montana

         F o r Respondent :

               Ask and P r a t t , Roundup, Montana
               Thomas M. Ask a r g u e d , Roundup, Montana

         F o r Amicus C u r i a e :

               W i l l i a m E. O'Leary a r g u e d , H e l e n a , Montana



                                                Submitted:          May 31, 1977

                                                           4
                                                   ~ecided&~G               197:
             &&4
Filed:




                                                            Clerk
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.



          Plaintiff brought this action in the district court,
Musselshell County, seeking to recover damages for the loss of
three cows due to the alleged negligence of defendant in hauling

and transporting the cows.    Trial was had without a jury.   At the

close of plaintiff's case-in-chief, defendant moved the court for

dismissal under Rule 41(b), M.R.Civ.P.   Defendant's motion alleged
plaintiff's evidence demonstrated no right to the relief sought,
and plaintiff was barred from recovery by the provisions of
Item 45 of the Montana Livestock Tariff No. 1.    The trial court

reserved ruling on this motion until all evidence was introduced.

          At the close of trial, the court requested briefs on
defendant's motion to dismiss and ordered the case be deemed sub-

mitted upon the filing of the requested briefs.   Thereafter on
August 20, 1976, the court entered its findings of fact, conclusions
of law and judgment.   A specific ruling was never made on defendant's

motion.    Defendant appeals from the judgment which awarded damages
to plaintiff in the sum of $1,242, plus costs.
          In May 1974 Russell Brown, a long time cattle rancher,
purchased 225 cows from a ranch located near Big Sandy, Montana.

All of the 225 cows had young calves at their side.   The evidence

is not conclusive as to the age of the calves.    Brown contracted
with John Webb, d/b/a Webb Cattle Company (Webb), for the trans-
portation of a portion of the 225 cows and calves from the ranch
near Big Sandy to his ranch near Musselshell, Montana.   The rates

and charges agreed upon by the parties were in accord with existing
tariffs on file and approved by the Montana Public Service Commission.
          Webb is a common carrier of livestock and was engaged in
such business in May 1974, operating as a class B carrier under
M.R.C. Permit No. 3448 issued by the Montana Public Service Commission.
In addition, Webb was a participating member carrier in the
Montana ~ivestockTariff Bureau.    The Livestock Tariff Bureau
represents approximately 170 member carriers on whose behalf the
Bureau files tariff rates, charges, and applicable rules and
regulations for approval by the Public Service Commission.

        On the evening of May 24, 1974, 45 cows and their calves
were loaded in each of two of Webb's tractor-trailer trucks.     John
Webb was the driver of one truck and one of his employees drove
the second truck.   During the nightlong trip from Big Sandy to
Musselshell, Webb and his driver stopped several times to check the
livestock in their trailers.   Upon arrival in Roundup, Montana,
Webb noticed one cow was down in one of the trailers.   He prodded
her with an electric prod, but the cow would not or could not get
to her feet.   Instead of taking further efforts to aid the injured
cow, Webb decided to proceed to Brown's ranch, some 34 miles away,
to off-load the cattle.
        Upon arrival at Brown's ranch the cows and calves were
off-loaded into a corral.   One cow could not get up and had to be
assisted from the trailer by Webb and Brown.   The cows from these
two loads were not co-mingled with cows from previous loads, nor
with cows other than the 225 purchased at Big Sandy.
       Within 24 hours after arrival at the ranch one cow died
in the corral where the off-loading took place.   Webb was notified
of the loss and a claim for reimbursement was made by Brown.     A
second cow died two or three days later.   At that point, Webb
requested Dr. Orley Arthur, a veterinarian from Roundup, to go to
the ranch and perform a post-mortem on the cows to determine the
cause of death.
        Dr. Arthur testified he performed a post-mortem on only
one of the dead cows.   He further testified he observed a second
cow lying dead in the corral and a third cow lying a short dis-
tance away.     The third cow was alive, but seriously injured.     This
animal later died about five days after its arrival at Brown's
ranch.    All three animals were covered with a large amount of manure
and mud, especially on their sides and backs.

          The post-mortem indicated the cow examined died of a
pulmonary hemorrhage.     Dr. Arthur concluded the animal was sub-

jected to a considerable amount of trauma while down in the truck
as evidenced by the hemorrhage in the lungs.     Numerous bruises,

hematomas, and blood clots were found underneath the skin along
the rib cage and over the muscular surface of the body.    No sign of
disease or other defect was found.    Dr. Arthur indicated the two
other cows he observed exhibited injuries, leading him to believe
the cause of death of the other two was the same as the cow he
examined.

          Dr. Arthur, Brown,   and an expert witness familiar with
livestock hauling, a11 testified the large amount of foreign material
on the cows' sides and backs would indicate they were down in the
trailers for some time and trampled by the other cows.
          The average cost of a cow and calf pair was $400.   Commis-

sion on their purchase and hauling charges amounted to $5 and $9
per pair respectively.     The court awarded Brown damages for the

loss of the three cows in the amount of $ 4 1 4 each or a total of
$1,242.
          Webb presents five issues on appeal:
          1.   Whether a district court must rule on a motion to dis-
miss made pursuant to Rule 41(b), M.R.Civ.P., before it can issue
its findings of fact, conclusions of law and judgment?
          2.   Whether Item 45 of the Montana Livestock Tariff No. 1
is binding upon the shipper in the instant case?
          3.   Whether the evidence was sufficient to support the
district court's finding of negligence on the part of    ebb?
        4.   Whether Brown's claim for loss was properly processed
by Webb under the statutes in effect at the time of the claim?

        5.   Whether the district court properly calculated Brown's
damages in the instant case?
        Rule 41(b), M.R.Civ.P.,   provides a procedure whereby a
defendant may move for dismissal of an action after plaintiff has
presented his case-in-chief "on the ground that upon the facts and

the law plaintiff has shown no right to relief."   This rule expressly
provides that "The court as trier of the facts may then determine

them and render judgment against the plaintiff or may decline to
render any judgment until the close of all the evidence."     Webb

argues this rule is mandatory upon the district court and the
court in the instant case erred when it failed to specifically
rule on the motion to dismiss prior to entering its findings of
fact, conclusions of law and judgment.

        We find no Montana authority which specifically discusses
                               Court
this issue. The Fifth Circuit/of Appeals, however, has specifically
considered the issue in regard to Rule 41(b), Fed.R.Civ.P.,    identi-
cal to and the basis of the Montana rule.   In Smith Petroleum
Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1116 the
court stated:
        " * * * Under Rule 41(b), when the defendant moves
        for a dismissal at the completion of the plain-
        tiff's presentation of evidence, the trial court
        has two options: (1) The court as 'trier of the
        facts may then determine them and render judgment
        against the plaintiff' or (2) the court 'may
        decline to render any judgment until the close
        of all the evidence.'* * * "
        Therefore, we hold that a district court, when confronted
with a Rule 41(b) motion to dismiss, must rule on the motion when
made at the close of plaintiff's evidence, or reserve its ruling

until the close of all evidence and then render its judgment.      In
either event a specific ruling must be made on the motion prior to
the rendering of a final decision in the case.

        Here, although the district erred when it failed to rule
on Webb's motion prior to final judgment, this error was harmless.
Rule 61, M.R.Civ.P.,  states:
                        or defect
        " * * *no error/in any ruling or order or in
        anything done or omitted by the court or by any
        of the parties is ground for granting a new
        trial or for setting aside a verdict or for
        vacating, modifying or otherwise disturbing a
        judgment or order, unless refusal to take such
        action appears to the court inconsistent with
        substantial justice.* * * "
No substantial injustice was suffered by Webb in light of the fact

the court's ruling on his motion was clearly indicated by the final
judgment.

        Webb argues in his second issue that Item 45 of the Montana
Livestock Tariff No. 1 is binding upon Brown and he is therefore
precluded from recovery.     We disagree.

        Under the provisions of section 8-103, R.C.M. 1947, the
Montana Public Service Commission is:

       " * * * vested with power and authority, and it
       is hereby made its duty to supervise and regulate
       every motor carrier in this state; to fix specific,
       just, reasonable, equal and nondiscriminatory rates,
       fares, charges and classifications for class A and
       class B motor carriers; to regulate the properties,
       facilities, operations, accounts, services, prac-
       tices, affairs and safety of operations of all
       motor carriers; to require the filing of annual
       and other reports, tariffs, schedules or other data
       by such motor carriers and to supervise and regulate
       motor carriers in all matters affecting the rela-
       tionship between such motor carriers and the travel-
       ing and shipping public. * * * "

        Livestock carriers, such as Webb, came under the jurisdic-
tion of the Public Service Commission in 1971 and were required
to file tariffs of rates, charges and classifications of commodities
pursuant to section 8-103.    Such a tariff was filed with the Public

Service Commission by the Montana Livestock Tariff Bureau, Inc.,
of which Webb is a member.    One of the provisions contained in
this tariff is Item 45; it provides:
              "Livestock subject to parturition within
       thirty (30) days before or after date of ship-
       ment will be accepted only at owner's risk."
P a r t u r i t i o n i s d e f i n e d a s " t h e a c t o r p r o c e s s of g i v i n g b i r t h    * * *".
The American I l l u s t r a t e d Medical D i c t i o n a r y , 2 1 s t E d i t i o n ,         (W.    B.

Saunders Company, 1 9 4 7 ) .

             The r e c o r d r e f l e c t s t h a t a t l e a s t a p o r t i o n of t h e c a t t l e

h a u l e d by Webb had g i v e n b i r t h w i t h i n t h e p r e c e d i n g t h i r t y d a y s .

Even i f t h i s C o u r t were t o assume t h e l o s t cows had g i v e n b i r t h

t o t h e i r c a l v e s w i t h i n t h i s t i m e p e r i o d , we c a n n o t a g r e e w i t h

Webb's c o n t e n t i o n f o r t h i s r e a s o n :

             A common c a r r i e r ' s l i a b i l i t y f o r l o s s o r i n j u r y t o i t s

c a r g o i s c l e a r l y and s u c c i n c t l y s t a t e d i n former s e c t i o n 8-812

and s e c t i o n 8-813,       R.C.M.      1947 ( i n e f f e c t a s of t h e d a t e of l o s s ) :

                           "8-812.        U n l e s s t h e c o n s i g n o r accom-
             p a n i e s t h e f r e i g h t and r e t a i n s e x c l u s i v e c o n t r o l
             t h e r e o f , an i n l a n d common c a r r i e r of p r o p e r t y i s
             l i a b l e , from t h e t i m e t h a t he a c c e p t s u n t i l he
             r e l i e v e s h i m s e l f from l i a b i l i t y , p u r s u a n t t o
             s e c t i o n s 8-414 t o 8-417, f o r t h e l o s s o r i n j u r y
             t h e r e o f from any c a u s e w h a t e v e r , e x c e p t :

                         " 1 . An i n h e r e n t d e f e c t , v i c e , weakness, o r
             a s p o n t a n e o u s a c t i o n of t h e p r o p e r t y i t s e l f ;

                          "2. The a c t of a p u b l i c enemy of t h e U n i t e d
             S t a t e s , o r of t h i s s t a t e ;

                        " 3 . The a c t of t h e law; o r

                        "4.    An i r r e s s i s t i b l e superhuman c a u s e .

                           "8-813.    A common c a r r i e r i s l i a b l e , even
             i n t h e c a s e s e x c e p t e d by t h e l a s t s e c t i o n , i f h i s
             o r d i n a r y negligence exposes t h e property t o t h e
             c a u s e of t h e l o s s . "

             Item 45 of t h e Montana L i v e s t o c k T a r i f f No. 1 urged by

Webb a s a d e f e n s e , c o m p l e t e l y changes t h e meaning of t h e c i t e d

s e c t i o n s and i n i t s p r a c t i c a l a p p l i c a t i o n c o m p l e t e l y changes t h e

law.     I n e f f e c t , I t e m 45 s t a t e s t h a t any cow h a u l e d w i t h i n t h i r t y

d a y s b e f o r e o r a f t e r g i v i n g b i r t h t o a c a l f w i l l be a c c e p t e d o n l y

a t t h e owner's r i s k .         T h i s c o m p l e t e l y i g n o r e s f a c t o r s such a s t h e

c o n d i t i o n and h e a l t h of t h e cow, t h e equipment and method of

h a n d l i n g used by t h e c a r r i e r , and t h e p r o v i s i o n s of s e c t i o n 8-813.

T h a t s e c t i o n p r o v i d e s f o r l i a b i l i t y on t h e p a r t of t h e c a r r i e r
even if an inherent defect, for example, is present, if the carrier's

ordinary negligence is the cause of the loss.

         It is axiomatic that a statute cannot be changed by admin-
istrative regulation.   State ex rel. Swart v. Casne,        Mont .     I


564 P.2d 983, 34 St.Rep. 394 and cases cited therein. We therefore
hold that here Item 45 is invalid in that it conflicts with section
8-812.

         When stripped of all extraneous material, Webb's third
issue is simply a challenge to the sufficiency of the evidence

supporting the district court's finding of negligence on the part
of the carrier.   This Court has many times stated the function of
the Court is to determine whether there is substantial evidence to

support the findings of fact of the district court.     We will not
reverse such findings of fact unless there is a clear preponderance

of evidence against such findings.    Crncevich v. Georgetown Recrea-
tion Corporation,       Mont .      , 541 P.2d 56, 32 St.Rep. 963;
Cope v. Cope, 158 Mont. 388, 493 P.2d 336.    Even where the evidence

is conflicting, the judgment will not be disturbed unless there is
no substantial evidence in the record to support the judgment.

Strong v. Williams, 154 Mont. 65, 460 P.2d 90.
         Applying the foregoing principles to the relevant facts
contained in the instant case, there is an abundance of substantial
evidence supporting the findings.    Dr. Arthur, the veterinarian

who performed the post-mortem on one of the dead cows, testified:
         "A. * * * So based on these facts, I had reason
         to believe that the animal had been down in the
         truck or trailer or whatever, and had been
         obviously subjected to a considerable amount of
         trauma while down there, because it takes a con-
         siderable amount of trauma to produce hemorrhage
         in the lungs."
This testimony together with the testimony of Brown and his wife
that all three cows were covered with manure up to their backs and

had large bruises on their sides would indicate that all three
were down in the truck for a considerable time and were trampled

on by the other cows.     Further, a representative of the company
which manufactured the trailers used by Webb testified that under
proper load and manure removal conditions the floors of the trailers

should not become so slippery that cattle would fall and become
unable to regain their feet.

          The district court's findings of fact contained this
finding :

                 "That the Plaintiff submitted a claim for
          the three cows to the Defendant immediately after
          their death and offered to give the calves from
          the dead cows to the Defendant upon payment of
          the claim for the three cows; that the defendant
          never processed the claim in the manner provided
          by law and never advised the Plaintiff of the
          disposition of the claim from the time it was
          submitted up until the date of the trial."
At the time of loss there was no statutory procedure for the proces-

sing of claims against carriers by property owners who suffered
losses.     Webb argues that the phrase "in the manner provided by

law" in the quoted finding is in error.       We agree.   However, we

again find this to be a harmless error governed by Rule 61, M.R.Civ.P.
There is no indication this rather minor error in the finding sub-
stantially prejudiced Webb's rights.
          Webb's final contention is that the district court impro-

perly calculated the damages awarded to Brown.       The amount of

damages allowable for the loss of personal property is the market
value of the property lost, plus special costs or fees incurred in
its purchase.     Farris and Seneca1 v. Clark, 158 Mont. 3 3 , 4 8 7 P.2d
1307, and cases cited therein.
          Applying this rule to the instant case we find no error

in the district court's calculation of damages.       It is uncontroverted
that the market value of the cow and calf pairs was $ 4 0 0 per pair.
The sale commission and transportation costs of $5 and $9 respec-
tively must be added to the above amount yielding a total cost of
per pair of $414.    This was the amount awarded per cow by the
district court.

        Webb argues the market value of the orphaned calves must
be deducted from the total cost per pair.    There was no conclusive
proof as to the actual market value of the three calves.      The court

found they had no value and we find substantial evidence to support
this finding.     In the absence of substantial evidence to the con-

trary we refuse to disturb the finding made by the district court.
Crncevich v. Georgetown Recreation Corp., supra.
        The judgment of the district court is affirmed.



                                      3hJj!A $9
                                       Justice       ~    &     -   h



We Concur:




     Chief Justice
