                            No.    94-614
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


RAYMOND LOMBARDO,
          Plaintiff and Respondent,
     v.
TOM HEISLER d/b/a THE LOADING ZONE
BAR and THE PLAYGROUND, INC.,
          Defendants and Appellants.




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable John McCarvel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Robert J. Emmons,     Emmons & Sullivan, Great Falls,
               Montana
          For Respondent:
               Joseph C. Engelr      III, Great Falls, Montana
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company,
     Appellant and defendant, Tom Heisler (Heisler), appeals from
a jury verdict awarding petitioner, Raymond Lombardo, $160,000 in
damages,    reduced to $80,000 on a finding of petitioner's 50%
negligence.      Heisler appeals the denial of his motion for a
judgment N.O.V. and jury instructions given by the District Court.
     We affirm.
     We address the following dispositive issues on appeal:
     1. Did the District Court err in denying Heisler's motion for
judgment N.O.V?
     2. Did the District Court err in giving court's instruction
No. 8, concerning premises safety?
     3. Did the District Court err in refusing Heisler's proposed
instructions    No.   3,   regarding     the   "clean hands" doctrine, and
instructions 4, 5, 7, and 14, regarding supervening and intervening
causes?
                                       FACTS
     On March 16, 1991,        Raymond Lombard0      (Lombard01   and Robert
Mattern (Mattern) were both at the "Loading Zone," a bar in Great
Falls,    Montana.    Around closing time,       they engaged in a yelling
match because Mattern knocked the beer Lombard0 had just purchased

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from his hands.    The two were separated and escorted out of the bar
by the "Loading Zone's bouncers.           Lombard0   testified the bouncers
encouraged the two to take it across the street.                About the same
time these acts occurred, a police officer drove down the alley.
The officer asked if there was a problem, and one of the bouncers

told the officer that everything was fine.

     Lombard0     then walked over to the neighboring bar,                  "The

Playground" to pick up his friend, Andy Krueger who was in a wheel

chair. As Lombard0 was loading Krueger's wheel chair into the car,

Mattern attacked Lombard0 with a knife, stabbing him eleven times.

     Lombard0     brought   this   negligence   action    to   recover   damages

from the owner of the "Loading Zone" bar and "The Playground" bar.

Lombard0 contended Heisler was negligent in failing to provide

premises safety in "The Playground" parking lot.               A jury trial was

held in August of 1994.             The jury found Heisler to be 50%

negligent,   and Lombard0 to be 50% negligent.           The jury then found

Lombard0 had sustained $160,000 in damages.              Judgment was entered

on September 15,      1994,    awarding Lombard0 $80,000 in damages.

Heisler appeals.
                                    ISSUE 1

     Did the District Court err in denying Heisler's motion for

judgment N.O.V?

     When reviewing a motion for a judgment notwithstanding the

verdict (N.O.V.) the District Court must consider evidence in the

light most favorable to the opposing party and decide whether

substantial credible evidence supports the jury verdict.                 Knaper,


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Wolfberg & Associates,         Inc. v.        Blue Cross and Blue Shield of
Montana (19951, 270 Mont. 283, 285, 891                   P.Zd 530, 532.         The
standard we use when reviewing the District Court's denial of a
motion for judgment N.O.V. is whether substantial credible evidence
supported submission to the jury.              Knauer, 891 P.2d at 532.
        In this case, we must decide whether a jury issue was created
after    reviewing the evidence          in the light most favorable to
Lombardo.     See Jaques v. Montana National Guard (1982), 199 Mont.
493, 503, 649 P.2d 1319, 1325.            We have held before that we will
exercise great restraint in interfering with the constitutionally
mandated process of a jury decision.             See Barmeyer v. Montana Power
Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on
other grounds, citing Jauues, 649 P.2d 1319).
        In   this    case,   Heisler     contends a        judgment     N.O.V. is
appropriate for two reasons.           First, Heisler contends Lombard0 left
"The Playground" parking area and later returned without Heisler's
knowledge to fight with Mattern.                Second,   Heisler     proposes   the
evidence supports a finding that Lombardo's negligence was at least
51% or more than any negligence on his part.
        Upon review of the record, we conclude that the evidence
presented at trial created a jury issue in regards to Heisler's
negligence.         On appeal, Heisler has merely reargued his case. In
doing so he invades the province of the jury; "A jury may believe
the testimony of one witness and disbelieve that of another, or any
numbers of others, and the determination of the jury in this regard
is final. . . .I'        Batchoff v. Craney (1946), 119 Mont. 157, 161,


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172 P.2d 308,        311; Buhr on behalf of Lloyd v. Flathead County
(1994),    268 Mont. 223, 886 P.2d 381.
        Therefore,    since there was sufficient credible evidence to
support submission of the case to the jury,         we hold that the
District Court's denial of Heisler's motion for judgment N.O.V.
should be affirmed.
                                  ISSUE 2
        Did the District Court properly instruct the jury in giving
court's instruction No. 8, concerning premises safety?
        It is within the District Court's discretion to decide how to
instruct the jury,       and we will not overturn the District Court
except for abuse of discretion.      Contreras v. Vannoy Heating & Air
Cond. (19951, 270 Mont. 393, 400, 892 P.2d 557, 561-62 (citing Hall
v. Big Sky Lumber & Supply, Inc. (1993), 261 Mont. 328, 863 P.2d
389).
        Heisler contends instruction No. 8 should have been refused.
The court's instruction read as follows:
        In determining whether premises were reasonably safe, you
        should consider all of the surrounding circumstances
        shown by the evidence including, but not limited to, the
        following matters:
             1. the manner in which the property is used;
             2. the setting, location and physical
                 characteristics of the property;
             3. the type of person who would reasonably be
                 expected to visit the premises; and
             4. the specific type of hazard or unsafe condition
                 alleged.

Heisler argues this instruction concerns physical properties of the
premises.      He argues that because the patron's behavior was the



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issue and not the physical characteristics of "The Playground" the

instruction was in error.

       We   do    not       agree.    Instruction     No.      8   is   an    appropriate
instruction regarding premises safety.                 See Davis v. L.D.S. Church

(lPPO),     244 Mont. 61, 71, 796 P.2d 181, 187; Limberhand v. Big
Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. Heisler is correct

that the instruction does not specifically mention the "physical

behavior" of            the patrons;       however,      the       instruction is     not
restricted to the listed factors. The instruction tells the jury
that    they      II.   .   .   should     consider      all of         the   surrounding
circumstances shown by the evidence, including but not limited to,

the following matters:               the manner in which the property is used;

setting, location and physical characteristics of the property; the

type of person who would reasonably be                      expected to visit the

premises;      and the specific type of hazard or unsafe condition

alleged."        This instruction adequately instructs the jury that the
patron's behavior can be considered by a jury.

       We conclude there was not                 abuse      of     discretion,    and we

therefore affirm the District Court's giving of instruction No. 8.

                                          ISSUE 3

       Did the District Court properly instruct the jury by refusing

Heisler's proposed instructions No. 3, concerning the "clean hands"

doctrine,        and also in refusing instructions 4, 5, 7,                       and 14,

regarding supervening and intervening causes?




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      Again, it is within the District Court's discretion to decide
how to instruct the jury, and we will not overturn the District
Court except for abuse of discretion.        Contreras, 892 P.2d at 558.
When examining whether jury instructions were properly given or
refused, we must consider the jury instructions in their entirety
and in connection with the other instructions               given    and the
evidence introduced at trial.       Feller v. Fox (19891, 237 Mont. 150,
156, 772 P.2d 842, 846.
      Looking first at Heisler's proposed instruction No. 3, which
read as follows:
      If you find from the evidence that the dispute between
      the Plaintiff, Raymond Lombard0 and Robert Mattern arose
      out of an illegal transaction between them involving
      drugs, then you are instructed to return a verdict for
      the Defendant Tom Heisler. The reason for this is that
      no one can take advantage of his own wrong.

At   trial, Heisler introduced evidence suggesting the fight between
the two patrons was a dispute over a drug deal.         Therefore,    Heisler
argues, if the two were fighting over an illegal drug transaction
the "clean hands" doctrine or the in oari delict0 doctrine bars
Lombardo's recovery and the jury should have been instructed
accordingly.
      The    "clean hands"    doctrine and b & delict0               are both
equitable     remedies.     Both doctrines operate on the theory that
there is no recourse between wrongdoers.              See Lencioni v. Long
(1961),     139   Mont. 135, 361 P.2d 455; Wailer v. Engelke (1987), 227
Mont. 470, 741 P.2d 385; Patten v. Raddatz (1995), 271 Mont. 276,
895 P.2d 633.        In uari delict0 is a   term   denoting the "status of


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both parties to an illegal agreement or transaction where they are
equally     at    fault."   Ballentine's       Law Dictionarv   631 3rd Ed.
(1969).
     But,        we need not consider either doctrine. Lombard0      is not
seeking recovery against Mattern, he is seeking recovery against
Heisler for Heisler's negligence. Lombard0 and Mattern both deny
the fight was over a drug deal, and no evidence was introduced that
the two, who had several verbal exchanges over the course of the
evening,     ever    mentioned   drugs.       A District Court should only
instruct on the theories and issues which are supported by the
evidence presented at trial.          State v. Popescu (19891, 237 Mont.
493, 495, 774 P.2d 395, 396.
     Upon reviewing the instructions as a whole, even if the jury
chose to believe Heisler's contention that the dispute was over an
illegal drug transaction, Lombard0 is at most contributorily
negligent and the jury was appropriately instructed on this issue.
We conclude that the defense theory was sufficiently accommodated
by the court's instructions.              Therefore we affirm the District
Court's denial of defense instruction No. 3.
      In Heisler's last argument,             he contends the District Court
erred in refusing Heisler's proposed instructions Nos. 4, 5, 7, and
14. Heisler alleges he did not owe a duty to Lombard0 if Mattern's
conduct could be considered an independent and intervening act.
     The District Court in this case gave its own instructions on
independent and intervening causes, which read as follows:




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                                                   -
       NO. 16: Only if the intervening cause is reasonably
       unforeseeable will it be considered a superseding event
       that breaks the chain of causation.
       No. 17: A defendant's liability for his wrongful acts
       will not be severed by an intervening cause if the
       intervening cause is one that the defendant might
       reasonably foresee as probable or one that the defendant
       might reasonably anticipate under the circumstances.
       No.   18: A superseding,    intervening event is an
       unforeseeable event that occurs after the defendant's
       original act of negligence.

Heisler argues the instructions where         "abstract"   and did not
provide the proper guidance for the jury.
       "If the jury can readily relate the concept of the instruction
to the facts and there is no prejudicial effect created by the
instruction,       the use of such an instruction is not reversible
error. I'   State v. Reiner (1978), 179 Mont. 239, 246,    567 P.2d 950,
955.        Again, we    conclude   the instructions given state the
appropriate     law,    and we therefore affirm the District Court's
denial of Heisler's instructions Nos. 4, 5, 7, and 14.
       Affirmed.


We Concur:




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Justice Karla M. Gray, specially concurring.


        I concur in the Court's opinion on issues one and three and,

therefore, specially concur in the result the Court reaches.     I do
so notwithstanding my disagreement with the Court's resolution of

issue   two, regarding the "premises safety" instruction, because the

jury's verdict on the negligence claim against Heisler is properly

affirmed via issues one and three.




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