                                      No. 12090

        I N THE SUPREME C U T OF THE STATE OF MONTANA
                         OR




RICHARD W L E , A d m i n i s t r a t o r of
                ATE
t h e E s t a t e of KENNETH VALTEE,

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



PETROLANE, I N C . ,      et all

                               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 i r s t J u d i c i a l D i s t r i c t ,
                     Honorable V i c t o r H. F a l l , Judge p r e s i d i n g .

Counsel of Record:

     For A p p e l l a n t :

             Small, Cumrnins and Hatch, Helena, Montana.
             Floyd Small argued, Helena, Montana.

     F o r Respondent :

            H a r r i s , Jackson and Utiek, Helena, Montana.
            LaVerne H a r r i s and Andrew U t i c k argued, Helena,
             Montana.
            Knight, Dahood and Mackay, Anaconda, Montana.
            Wade J . Dahood argued, Anaconda, Montana.



                                                   Submitted:            Apri.1 27, 1973

                                                      Decided:
                                                                    JVL 5 1973
                                                                    --
Honorable A l f r e d B. C o a t e , D i s t r i c t J u d g e , s i t t i n g i n p l a c e of
Mr.J u s t i c e John C . H a r r i s o n , d e l i v e r e d t h e Opinion of t h e C o u r t .

             Kenneth Waltee, h i s w i f e S a n d r a , and t h e i r t h r e e minor

c h i l d r e n a l l d i e d a s a r e s u l t of monoxide p o i s o n i n g produced

by t h e propane f u r n a c e used t o h e a t t h e i r r e n t e d m o b i l e home.

A t t h e t i m e of t h e i r d e a t h , J a n u a r y 22,      1969, Kenneth was 28

y e a r s of a g e and h i s w i f e Sandra was 2 3 y e a r s of a g e .

             Kenneth Waltee l e f t a s h i s o n l y s u r v i v i n g h e i r s h i s

f a t h e r and m o t h e r , C h a r l e s and Aune Waltee.               T h i s a c t i o n was

f i l e d i n t h e d i s t r i c t c o u r t of t h e f i r s t j u d i c i a l d i s t r i c t ,

County of L e w i s and C l a r k , on b e h a l f of such p a r e n t s under t h e

p r o v i s i o n s of t h e wrongful d e a t h s t a t u t e , s e c t i o n 93-2810,               R.C.M.

1947.      Sandra Waltee l e f t a s h e r o n l y s u r v i v i n g h e i r s h e r p a r e n t s ,

Horace and Helen P e t e r s o n .            A s e p a r a t e a c t i o n f o r h e r d e a t h was

f i l e d on b e h a l f of h e r p a r e n t s under t h e p r o v i s i o n s of t h e same

statute.        Defendant P e t r o l a n e , I n c . s u p p l i e d t h e Waltee f a m i l y

w i t h propane g a s and r e p a i r s e r v i c e s f o r t h e i r propane b u r n i n g

household a p p l i c a n c e s .      The two a c t i o n s were c o n s o l i d a t e d f o r

t r i a l and were t r i e d t o t h e c o u r t s i t t i n g w i t h a j u r y .           The v e r -

d i c t s awarded $82,864 f o r t h e d e a t h of Kenneth Waltee and $101,103

f o r t h e d e a t h of Sandra Waltee.               A f t e r e n t r y of judgment, de-

f e n d a n t moved f o r a new t r i a l and w a s d e n i e d .             This appeal i s

from t h e judgment and o r d e r denying t h e motion f o r a new t r i a l .

             On J a n u a r y 1 9 , 1969, t h e weather had t u r n e d s e v e r e and

Kenneth c a l l e d h i s l a n d l o r d , a n a u t o mechanic, t o a s s i s t him i n

starting h i s car.            The l a n d l o r d a s s i s t e d i n t h e s t a r t i n g of t h e

Waltee c a r and t h e n s p e n t some f i f t e e n t o t w e n t y m i n u t e s i n t h e

Waltee home.           The Waltees d i d n o t complain a b o u t t h e f u r n a c e n o r

did t h e l a n d l o r d n o t i c e any fumes o r            o d o r s coming from t h e f u r -

nace during t h e v i s i t .

             The f o l l o w i n g d a y , J a n u a r y 2 0 , 1969, A l b e r t C l a r k , a n
employee of defendant, made a propane fuel delivery to the
Waltee home.   When Clark completed his delivery, he went to the
door of the home to have Mrs. Waltee sign a receipt for the fuel.
There was no odor of gas coming from the home and Mrs. Waltee
made no complaint about the operation of the furnace or that any
of her family was sick.    Clark observed the Waltee children and
they appeared to be healthy at that time.
         The next day, January 21, 1969, the Waltees were snow-
bound.   At about 10:OO a.m.,Kenneth walked through deep snow to
his closest neighbor's home to use the telephone.   Kenneth told
his neighbor his family was sick from the odor of gas and that
he would like to call a serviceman for help.   He called defend-
ant for assistance but defendant was unable to send a serviceman
on that day.
         The following day, January 22, 1969, Kenneth Waltee again
walked to his neighbor's house to use the phone to call defendant.
Kenneth reported that his family was still sick and the odor of
gas was still present.    The neighbor observed one of defendant's
trucks arrive at the Waltee home that afternoon.    The serviceman,
Victor Zentner, noticed a light burned gas odor in the Waltee
home when he first arrived.   He went outside the home to check the
exhaust vent for the furnace and found it partially blocked with
accumulated ice.   He tapped the ice off the vent, told the Waltees
to air the house out, and that the furnace would now function
properly.
         On the morning of January 23, 1969, at about 10:OO a.m.
the entire Kenneth Waltee family was found dead in their home by
the sheriff-coroner, who concluded that they must have died some
time before midnight the night before.   It was subsequently deter-
mined that the cause of death was carbon monoxide poisioning.
The sheriff-coroner was the first person to enter the Waltee home
and he testified that all of the windows were closed.     He said
the place was "as tight as a drum", and the snow outside of the
home was several feet deep so that it covered at least one of
the vents under the home that normally was used to supply fresh
air for the combustion chanber of the furnace.
           Kenneth and Sandra Waltee were married November 8, 1963,
and except for occasional visits with their respective parents
they maintained their own home separate and apart from their
parents.    Neither of them contributed any financial assistance
to their respective parents subsequent to their marriage.     On
the contrary, the parents occasionally gave financial assistance
to the young couple.
        At the conclusion of the evidence the trial court ruled,
as a matter of law, that there was no evidence to support either
of defendant's affirmative defenses of assumption of risk or
contributory negligence.
        Appellant has specified three issues for review.
           1.   The court erred when it dismissed the affirmative
defenses of contributory negligence and assumption of risk.
Contributory Neqliqence, Any negligence by the Waltees, if
there was any, is immaterial in this case.     Before this defense
could be submitted to the jury there would have to have been
evidence showing, or tending to show, that such negligence was
the cause of the injury.     Stahl v. Farmers Union Oil Co., 145 Mont.
106, 114, 399 P.2d 763; DeVerniero v. Eby,    - .- 496
                                                Mont    ,
P.2d 290, 29 St.Rep. 273; Stephens v.    Brown, - Mont .- 503
                                                          ,
P.2d 667, 29 St-Rep. 986. Where, as here, there was no evidence
that the injury was caused by the Waltee's negligence, if any,
the trial court properly struck the defense of contributory neg-
ligence.
Assumption of Risk.      Before this defense can be submitted to
the jury there must be some evidence in the record that the
injured party had:      (1) knowledge, actual or implied, of the
particular condition; (2) appreciation of this condition as
dangerous; (3) voluntarily remained or continued in the face of
the known dangerous condition; (4) received an injury resulting
as the usual and probable consequences of this dangerous con-
dition.     DIHoodge v. McCann, 151 Mont. 353, 363, 443 P.2d 747.
The evidence shows defendant's repairman had advised the Waltees
that the dangerous condition had been repaired and that it would
be safe for them to remain in the house.      Therefore, defendant
did not sustain the burden of carrying forward the evidence to
sustain this defense and the trial court properly struck the
defense.
           2.   That the verdicts were excessive.
           It is appellant's contention that any verdict could not
exceed the amount of the specific pecuniary loss testified to in
the evidence and as there was no direct evidence on this point
the verdicts are excessive.      It has long been the law of this
state that direct evidence of specific pecuniary loss in death
cases is unnecessary.      In Burns v. Eminger, 84 Mont. 397, 411,
276 P. 437, the court said:
          " * * * any award must, of necessity, be based
          upon conjecture and surmise, and any amount of
          testimony would be of little aid to the jury.
          The matter must be left largely to the judg-
          ment and common sense of the ordinary jury
          called to determine it * * *".
          Appellant contends the verdicts are so excessive as to
show that they were given under the influence of passion and
prejudice.      Damages must be left to the enlightened consciences
of the jurors, aided by the circumstances of each particular
case.     Flaherty v. Butte Electric Ry. Co., 42 Mont. 89, 95, 111
P. 348.     The test for determining whether a verdict is excessive
has been stated in Jewett v. Gleason, 104 Mont. 63, 71, 65 P.2d


          "The rule in such a situation is no different
          from that obtaining in all controverted fact
          issues properly submitted to juries. It is not
          a question of the amount this court would have
          awarded under the circumstances. It is not the
          amount which in our opinion would compensate the
          injured party; rather it is a question of what
          amount of damages will the record in the case
          support when viewed, as it must be, in the light
          most favorable to the plaintiff. It is when the
          testimony - the facts of the case - fails to
          support and justify a verdict and judgment that
          the conscience and understanding of the court
          are shocked."
Also see:      Parini v. Lanch, 148 Mont. 188, 194, 418 P.2d 861;
Sanders v. Mount Haggin Livestock Co,    - .
                                          Mont         ,   500 P.2d
397, 29 St.Rep. 686; Kelleher v. State,    - .- 503 P.2d
                                            Mont ,
29, 29 St.Rep. 897.     The facts of this case support and justify
the verdict.
          3.   The trial court erred when it failed to give certain
proposed instructions.
          Appellant's proposed instruction No. 12 was refused by
the trial court, on its own motion, on the grounds that it would
tend to confuse the jury.     Appellant made no offer to amend the
proposed instruction or to offer other instructions which would
explain it, thus meeting the court's objection.     Under these
circumstances appellant cannot now object to the trial court's
refusal to give the offered instruction.     In Platt v. Clark,
141 Mont. 376, 380, 378 P.2d 235, this Court said:
          "The record shows that the refusal of said
          instruction was acquiesced in by the plain-
          tiff. No objection was made nor was an excep-
          tion taken to the refusal of the court to give
          it. Plaintiffs therefore cannot be heard at
          this stage of the appeal to raise this objec-
          tion. "
          Other proposed instructions refused by the trial court
    pertain to the affirmative defenses; as such defenses were
    excluded, those instructions were properly denied.
            The judgment of the    is   ict court is affirmed.


                                  ------ --
                                  Hon. Alfr d   .Coate, District Judge,
                                  sitting in place of Mr. Justice John
                                  C. Harrison.




/   ~ ! e f
          Justice




    sitting in place of Mr. Justice
    Gene B. Daly.
