                                   No. 12108

            I N T E SUPREME COURT O T E STATE O MONTANA
                 H                 F H         F




ELEANOR M. KIPP, A s Guardian
A L i t e m of JEWELL ANN KIPP,
 d
a Minor,

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



CHUCK WILLOUGHBY,

                           Defendant and Respondent.



Appeal from:        D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
                    Honorable John B. McClernan, Judge presiding.

Counsel of Record:

      For Appellant:

              Burgess, Joyce, Prothero , Whelan and OILeary,
               Butte, Montana.
              Thomas F. Joyce argued and Robert T. o l i e a r y argued,
               Butte, Montana.

      For Respondent:

              C o r e t t e , Smith and Dean, Butte, Montana
              R. D. C o r e t t e , Jr. argued, B u t t e , Montana.



                                                Submitted:        January 23, 1973


                     =
                                                   Decided :    E 2 6'1973
                                                                B
~i I r IB
        -      2 8'i973
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.

              T h i s a p p e a l i s from a judgment e n t e r e d on a j u r y v e r d i c t
i n f a v o r of defendant Chuck Willoughby i n t h e d i s t r i c t c o u r t of t h e
second j u d i c i a l d i s t r i c t , county of S i l v e r Bow.
              The c a s e concerns a motorbike-automobile c o l l i s o n on
February 25, 1970.                  J e w e l l Ann Kipp, 15 y e a r s of a g e , was d r i v i n g
a 1970 Honda 70 motorbike.                     Chuck Willoughby, 19 y e a r s of age,
was d r i v i n g a 1965 Ford automobile.                   A s a r e s u l t of t h e c o l l i s i o n ,
J e w e l l Kipp r e c e i v e d a broken l e g .         Willoughby was n o t i n j u r e d .
              Upon reviewing t h e f a c t s concerning t h e c o l l i s i o n , we
f i n d a c o n f l i c t on s e v e r a l p o i n t s w i t h i n t h e testimony of t h e liti-
g a n t s and w i t n e s s e s .      It would appear from t h e r e c o r d t h a t t h e
c o l l i s i o n occurred on an unimproved s t r e e t known a s Four-and-a-Half-
Mile Vue Road which r u n s n o r t h and south on t h e southern o u t s k i r t s
of t h e c i t y of B u t t e .         The time was approximately 4:45 p.m.;                     the
weather c o n d i t i o n s were c l e a r and d r y ; v i s i b i l i t y was good.
              Willoughby t e s t i f i e d he had gone t o t h e r e s i d e n c e of a
M r . Chapman f o r t h e purpose o f o b t a i n i n g used a u t o p a r t s f o r a
f r i e n d , Keith Smith, who accompanied him.                      The Chapman driveway
i s p e r p e n d i c u l a r t o and a d j o i n s Four-and-a-Half-Mile             Vue Road,
Immediately b e f o r e t h e c o l l i s i o n Willoughby was e i t h e r i n t h e
p r o c e s s o f backing o u t o r had completed backing out of t h e d r i v e -
way, t u r n i n g t h e r e a r end of h i s v e h i c l e t o t h e south s o t h a t i t
would be f a c i n g i n a n o r t h e r l y d i r e c t i o n .     H i s own testimony ap-
p e a r s i n c o n f l i c t a s t o whether he was moving a t t h e time of t h e
impact    .
              J e w e l l Kipp and a passenger, P h y l l i s Baxter, aged 12,
were proceeding n o r t h on t h e motorbike a t a speed of about 15 t o
20 m i l e s p e r hour.            J e w e l l Kipp t e s t i f i e d s h e was unable t o s e e
i n t o t h e Chapman driveway from t h e road because of numerous
wrecked c a r s and a t r a c t o r i n t h e l o t a d j a c e n t t o t h e driveway,

Willoughby t e s t i f i e d he had a c l e a r view of t h e road from 20 f e e t
w i t h i n t h e driveway; t h a t he did look south down t h e road; t h a t
he d i d not s e e t h e Kipp motorbike; and t h a t he d i d n o t s t o p u n t i l

he f e l t a s l i g h t bump on t h e back of h i s c a r .           Jewell Kipp t e s t i -
f i e d she f i r s t saw t h e Willoughby c a r when i t backed onto t h e
road i n f r o n t of h e r and t h a t she d i d n o t t r y t o s t o p t h e motor-
b i k e because she f e l t she was unable t o s t o p i n time.                   She s t a t e d
t h a t although she attempted t o t u r n t h e motorbike t o t h e l e f t t o
avoid t h e c a r , i t was h i t by t h e l e f t r e a r fender of t h e Willoughby
car.
             P h y l l i s Baxter, t h e passenger on t h e motorbike, t e s t i f i e d
t h a t Jewell t r i e d t o avoid t h e c a r , but i t kept coming and h i t t h e
motorbike.         She a l s o t e s t i f i e d t h a t she received a knee i n j u r y i n
t h e c o l l i s i o n and was on c r u t c h e s f o r two weeks.
             Keith Smith, t h e passenger i n t h e Willoughby c a r , t e s t i f i e d
t h a t he d i d n o t know whether t h e c a r was moving a t t h e time of
t h e impact and was f i r s t aware of t h e c o l l i s i o n when he heard t h e
impact   .
             Jewell Kipp had owned a Honda 50 motorbike s i n c e March
1969, and had more r e c e n t l y received t h e Honda 70 a s a g i f t from
her father.
             O appeal, two assignments of e r r o r a r e presented on
              n
behalf of a p p e l l a n t :

             (1)    That t h e d i s t r i c t c o u r t e r r e d i n giving an i n s t r u c -
t i o n on t h e law of assumption of r i s k and permitting defendant t o
argue t h a t p l a i n t i f f assumed t h e r i s k of i n j u r y because she had
no Montana d r i v e r ' s l i c e n s e .

             (2)   That t h e d i s t r i c t c o u r t e r r e d i n permitting j u r y
argument t h a t f a i l u r e t o have a Montana d r i v e r ' s l i c e n s e c o n s t i -
t u t e d negligence a f t e r having refused defendant's i n s t r u c t i o n on
t h a t theory.
             W f i n d merit i n t h e f i r s t assignment of e r r o r .
              e                                                                      The
assumption of r i s k i n s t r u c t i o n was improper i n t h i s case.              There
was no evidence introduced a t t r i a l which i n d i c a t e d t h a t Jewell
Kipp had committed any act or omission, which under Xontana law
could be construed as constituting an assumption of risk of the
injury she received in the accident.
        There was considerable argument and some record reference
and argument during settlement of instructions concerning statute
violations, some of which went to the question of negligence of
both parties.    There was considerable reference to a statute vio-
lation on the part of Jewell Kipp for failure to have a Montana
driver's license. The record also discloses that Willoughby had
a valid driver's license, but failed to comply with the statute in
regard to obtaining license plates for the vehicle he was driving.
        Neither the violations of statute by Jewell Kipp nor
those by Willoughby place either of them in a legal classification
of "trespasser" on the streets nor do the violations invoke any
legal doctrine of "assumption of risk" toward either of them.
The assumption of risk instruction has no application to the
determinations which were required to be made by the jury and,
consequently, could only serve to confuse and mislead it.
       The doctrine of assumption of risk has its historical
origin in the master-servant relationship and was gradually given
application to other types of contractual relationships.    See:
Meistrich v. Casino Arena Attractions, 31 N,J. 44, 155 A.2d 90,
82 ALR2d 1208.
        7 C.J.S. Assumption, p. 137, gives this definition of
assumption of risk:
        II
         The term presupposes some danger, a knowledge
        thereof, a reasonable opportunity to ascertain
        the nature of the risk, and ordinarily implies
        appreciation thereof, and acquiescence therein;
        and has been defined as the acquiescence of an
        ordinarily prudent man in a known dan er, the
        risk of which he assumes by contract.6
        However, the doctrine has been extended beyond the con-
tractual and quasi-contractual relationships and applied as a
theory of defense to preclude recovery in negligence cases.    An
explanation of these applications was given by the federal dis-
trict court in Montellier v. United States, 202 F.Supp. 384, 394:
           "Assumption of r i s k i s a term which has been
           surrounded by much confusion because i t has
           been used by t h e c o u r t s i n a t l e a s t four d i f -
           f e r e n t senses and the d i s t i n c t i o n s a r e seldom
           made c l e a r . Since t h e defendant h e r e has n o t
           s p e c i f i e d t h e exact sense i n which i t i s i n -
           voking t h e defense, t h e c o u r t w i l l consider a l l
           of them. I n i t s simplest sense t h e d o c t r i n e
           means t h a t p l a i n t i f f has given h i s express con-
           s e n t t o r e l i e v e t h e defendant of an o b l i g a t i o n
           of conduct toward him and has agreed t o take
           h i s chance of i n j u r y from a known r i s k . A
           second meaning i s t h a t p l a i n t i f f , with knowledge
           of t h e r i s k , has entered v o l u n t a r i l y i n t o some
           r e l a t i o n with the defendant which n e c e s s a r i l y
           involves danger of harm from a known r i s k , and
           thus impliedly consents t o take h i s own chances.
           I n a t h i r d sense, t h e p l a i n t i f f may a c t e n t i r e l y
           reasonably b u t , by v o l u n t a r i l y encountering a
           known r i s k which defendant has n e g l i g e n t l y allowed
           t o come i n t o being, he r e l i e v e s t h e defendant of
           l i a b i l i t y , I n t h e f o u r t h sense of assumption of
           r i s k , p l a i n t i f f ' s conduct i s i t s e l f unreasonable
           and amounts t o and i s equivalent of c o n t r i b u t o r y
           negligence, Prosser, T o r t s , 303-04 (1955). "
           Here, t h e r e was no c o n t r a c t u a l , q u a s i - c o n t r a c t u a l o r
consentual r e l a t i o n s h i p between t h e l i t i g a n t s .       So i t i s t h e
f o u r t h of t h e above enumerated a p p l i c a t i o n s of assumption of
r i s k with which we a r e concerned.                Used i n t h i s sense, t h e con-
c e p t of assumption of r i s k i s a more conclusive form of c o n t r i -
butory negligence,
           W hold, i n l i g h t of the evidence presented, t h a t i t was
            e
a matter f o r j u r y determination whether t h e f a c t s i n d i c a t e d t h a t
Jewel1 Kipp i n operation of t h e motorbike c o n t r i b u t e d a s a
proximate cause t o h e r i n j u r y i n t h e c o l l i s i o n between h e r motor-
b i k e and t h e v e h i c l e of Willoughby.
           The second assignment of e r r o r involves arguments made
by counsel t o t h e j u r y i n c l o s i n g argument.              This Court has no
record from which t o determine what s p e c i f i c arguments were made.
For t h i s reason, we cannot review t h e second assignment of e r r o r .
           The judgment of t h e d i s t r i c t c o u r t i s reversed and t h e
cause remanded f o r a new t r i a l .



                                                                                                  -
                                                      Associate J u s t i c e
      Concur:



1/   Chief Justice




/    Pssociate ~ust/ices

uMr, Justice Wesley Castles dissenting:

          I dissent. The majority opinion admits that a conflict
 in the evidence occurred. The jury resolved those conflicts in
 favor of defendant. The evidence proved that Kipp simply ran
 into the rear end of Willoughby's car. Willoughby's car was
 in the street heading in the same direction as Kipp.      The car
 was stopped and it was in forward gear, Phyllis Baxter, the
 passenger on the motorbike, testified that when she first saw
 the car it was in the street, pointed in the same direction the
 motorbike was going. While on direct examination, she said the
 car was backing out of the Chapman driveway and sideswiped the
 motorbike, on cross-examination she admitted she did not see the
 car except in the street pointing in the same direction the motor-
 bike was going.
          There is some slight conflict in the evidence on the above
 facts, but the jury resolved those,
          I agree with the majority that   "* * *   in light of the
 evidence presented, that it was a matter for jury determination
 whether the facts indicated that Jewel1 Kipp in operation of the
 motorbike contributed as a proximate cause to her injury in the
 collision between her motorbike and the vehicle of Willoughby."
          This the jury did, and I would affirm.


                                       ~ssocia
                                             ~      J Utice
                                                        S     .
