No. 82-182
I N THE SUPREPX COURT O THE STATE O MONTANA
F F
1982
ROBERT W. CALLIHAN,
P l a i n t i f f and Respondent,
-vs-
BURLINGTON NORTITZ3N I N C . ,
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 Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a , The Honorable
John S. Kenson, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
M. Kent Koolen, B i l l i n g s , Montana
C o r e t t e , S m i t h , Pohlman & A l l e n , B u t t e , Montana
For Respondent r
John C . Hoyt, G r e a t F a l l s , Montana
S u b m i t t e d on B r i e f s : September 1 6 , 1932
~ e c i d e d : December 6 , 1982
rift - 6 1982
Filed :
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
Burlington Northern appeals a judgment in the amount of
$1,031,029.00 awarded plaintiff, Robert W. Callihan, for
personal injuries suffered in an accident March 25, 1978.
A motion for new trial was made and denied. This appeal
followed.
On March 25, 1978, Callihan was an engineer on a Burlington
Northern locomotive. The back of the seat, in which he was
sitting, broke, causing him to fall backwards. By the end
of the trip, Callihan was suffering severe back pain. He
made six more trips as engineer prior to ceasing work April
9, 1978, due to unbearable back pain.
Callihan had suffered two previous back injuries while
working for Burlington Northern, both resulting in settlements
between Callihan and Burlington Northern. In 1954, a train
on which Callihan was riding made an emergency stop, throwing
him from a bunk. About a year later, he had back surgery.
A laminectomy was performed and vertebrae in his lower back
were fused. Following the surgery, Callihan returned to his
regular employment and his normal recreational activities--
hunting, horseback riding, dancing, lawn work, carpentry,
remodeling and painting. He also began playing golf and
became quite accomplished.
In 1971, Callihan slipped and fell on ice outside the
train depot in Troy, Montana. He continued regular employ-
ment until 1973, when a second back operation was performed.
The operation consisted of another laminectomy and the
fusion of vertebrae immediately above the first fusion.
Following the second operation, Callihan again returned
to his regular, full-time employment. His preaccident
activities were not restricted. However, he took Tylenol 3
regularly, as well as Valium in the evening for sleeping
purposes.
~fteropen heart surgery in 1977, three doctors pronounced
Callihan to be in good health and able to return to work
without restriction. Later in 1977, after a mandatory
physical, a railroad doctor reported that Callihan had
passed with "flying colors."
Apparently, Callihan then remained in good health until
suffering his third back injury on March 25, 1978. The
resulting pain was so severe, he ceased working and sought
relief from many different doctors and procedures. From
April 10, 1978, until the commencement of this suit on
August 28, 1980, Callihan had three myelograms, two laminectomies,
five nerve blocks, four rhizotomies and a partial rhizotomy,
for a total of seven operations. He also visited a chiropractor
and an acupuncturist, to no avail.
The myelograms failed to disclose the cause of pain.
The laminectomies only temporarily lessened the pain.
Therefore, the rhizotomies (severance of nerves) were performed.
Callihan's left leg is nearly useless as a result of the
rhizotomies. Mowever, the pain remains excruciating.
Callihan now spends ninety percent of his time lying on
his right side on the sofa with a pillow between his legs to
relieve the pressure on his left leg. Sitting in a chair to
eat dinner is a major, energy-draining task. He is unable
to enjoy any of his previously discussed physical acitivities.
The operations have left him impotent. Mrs. Callihan must
be present to assist him twenty-four hours a day. Tylenol
4, Percodan and Valium allow Callihan to sleep.
Dr. Herman Walters, Director of the Clinical Psychology
Department at the University of Montana, examined plaintiff.
He testified at trial that Callihan suffers significant
reactive depression; that he does not enjoy life; that he is
sad and very pessimistic about the future. Although it has
since passed, he at one time had suicidal tendencies caused
by his condition. Walters testified that Callihan's depression
would not improve until his physical condition improved.
Dr. Albi, Callihan's treating physician, stated, "I can
only repeat that this man is totally beyond any rehabilitation
physically. . ." Callihan's physical and emotional future
is bleak.
Joseph Kasperick is an assistant economics professor at
Montana College of Mineral Science and Technology in Butte.
He prepared an appraisal estimating the value in present
dollars of Callihan's earnings to age sixty-five to be
$271,828.39, had he not been injured in 1978. Kasperick
also estimated the lost value in present dollars of Callihan's
household services to be $44,309.04, making the total of
lost earnings and services $316,137.43. Assuming the jury
adopted Kasperick's figures in determining Callihan's total
award of $1,031,029.00, they then awarded Callihan approximately
$715,000.00 for pain, suffering and loss of his established
course of life.
Burlington Northern presented no direct evidence contra-
dicting the above synopsis of plaintiff's case. Instead,
defendant attempted to present its case through the cross-
examination of plaintiff's witnesses. Callihan's doctors
admitted on cross-examination that prior back injuries
contributed to Callihan's present condition. However, no
one was able to specifically apportion the various injuries.
In appealing the jury verdict and judgment in favor of
plaintiff, defendant presents the following issues for our
consideration:
(I) Did the District Court err in granting plaintiff's
motion for partial summary judgment on the issue of liability
under the Safety Appliance Act without then considering
proximate cause?
(2) Did the District Court err in granting plaintiff's
motion in limine to exclude prior settlements of two prior
injuries to plaintiff's back?
(3) Did the District Court err in overruling defendant's
objections to Instruction No. 17 and Instruction No.
(4) Was the jury verdict of $1,031,029.00 the result
of passion and prejudice?
On cross appeal, plaintiff requests we consider the
following issues:
(I) Whether the District Court erred in denying plaintiff's
motion for an order awarding prejudgment interest at the
rate of ten percent per annum to run from the date of plaintiff's
injury because of defendant's abuse of the judicial process?
(2) Whether this Court should grant Rule 32 sanctions
for filing of a frivolous appeal for purposes of delay?
We affirm the jury verdict and judgment for plaintiff
and deny plaintiff's requests for prejudgment interest and
Rule 32 sanctions.
Plaintiff's action is based upon violation by defendant
of federal statutes known as the Boiler Inspection Act, 45
U.S.C. §§23-34 (a portion of the Safety Appliance Act) and
the Federal Employer's Liability Act, 45 U.S.C. §§51 et
seq. Specifically, 45 U.S.C. S 2 3 provides:
"It shall be unlawful for any carrier to
use or permit to be used on its line any
locomotive unless said locomotive, its
boiler, tender, and all parts and appurten-
ances thereof are in proper condition and
safe to operate. ..that the same may be
employed in the active service of such
carrier without unnecessary peril to life
or limb. . ."
his section imposes absolute liability upon any carrier
which violates it. Lilly v. Grand Trunk Western R. Co.
(1943), 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411.
On the basis of this statute and the uncontested fact
that the seat in which plaintiff, Callihan, was sitting
broke because of improper welding, plaintiff moved for
partial summary judgment against defendant on the issue of
liability, pursuant to Rule 56(c), M.R.Civ.P. The motion
was granted by order September 10, 1981, following a hearing
on the issues.
Defendant now objects to that order, stating that the
District Court improperly failed to consider whether the
absolute liability resulting from defendant's violation of
the section, was the proximate cause of plaintiff's injuries.
In McGee v. Burlington Northern, Inc. (1977), 174 Mont. 466,
476, 571 P.2d 784, 790, we held: ". . .recovery for a FSAA
violation is predicated upon a showing of: (1) A violation
of the Act, and (2) injury proximately caused thereby." The
order granting summary judgment pertains solely to part (I),
Burlington Northern's violation of 45 U.S.C. S23 and the
attendant absolute liability imposed. It is affirmed.
It remained a function of the jury to determine whether
that violation proximately caused plaintiff's injuries. The
jury was so instructed. Jury Instructions Nos. 8, 9, and
10, adequately define "proximate cause" and clearly limit
any award of damages to damages for injuries proximately
caused by the March 25, 1978, accident.
The District Court issued a pretrial order January 5,
1982, which, among other things, granted plaintiff's motion
in limine to exclude evidence relating to plaintiff's previous
settlement of claims with Burlington Northern. plaintiff
contends such evidence is irrelevant to the issue before the
jury. Defendant contends that since the jury heard evidence
regarding those previous injuries, it should also know of
the settlement of the claims resulting from those injuries.
Rule 401, Mont.R.Evid., provides in part:
"Relevant evidence means evidence having any
tendency to make the existence of any fact
that is of consequence to the determination
of the action more probable or less probable
than it would be without the evidence."
Rule 403, Mont.R.Evid., provides:
"Although relevant, evidence may be exclud-
ed if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
waste of time, or needless presentation of
cumulative evidence."
Here the prior settlements would show a preexisting
condition. However, the fact of a preexisting condition was
conceded by plaintiff. Compromise settlements for previous
injuries do not necessarily reflect the seriousness of the
injury and may confuse the jury. Here the trial court found
that any probative value was outweighed by possible prejudice.
The trial court's discretion should not be disturbed. Cech
v. State of Montana (1979), Mont. , 604 P.2d 97, 36
Next, defendant objects to two instructions given to
the jury at the close of the trial. Instruction No. 17
states:
"Where a pre-existing condition exists which
has been aggravated by the accident, it is
your duty, if possible, to apportion the
amount of disability and pain between that
caused by the pre-existing condition and
that caused by the accident. But if you
find that the evidence does not permit such
an apportionment, then the defendant is liable
for the entire disability."
Defendant contends that the last sentence in this instruction
is an incorrect statement of law. Although this question
has not previously been before this Court, we find analogous
case law persuasive. In Azure v. City of Billings (1979), 182
Mont. 234, 596 P.2d 460, we stated:
.
". .to impose upon the plaintiff the some-
times impossible burden of proving which
tortious act did which harm, would be an ex-
pression of a judicial policy that it is
better that a plaintiff, injured through no
fault of his own, should take nothing simply
because he could not prove which tortious
act caused which harm. We believe on the
other hand, that where the tortious act is
established, it is better that the tortfeasor
should be subject to paying more than his
theoretical share of the damages in a situa-
tion where the tortious conduct has contri-
buted to the confused situation making it
difficult to prove which tortious act did
the harm." 596 P.2d at 470-471.
Azure involved two tortfeasors. However, the same
rationale applies in this case. Plaintiff's injuries are
the result of three different accidents over a span of
twenty-four years. Plaintiff should not go uncompensated
should the evidence not permit an apportionment of injuries
and damages. See also Restatement of Torts, Second, Section
461 (comment a), p. 502. The giving of Jury ~nstructionNo.
17 is affirmed.
Defendant objects to Instruction No. 18 which states:
"You are instructed that the defendant
is liable to the plaintiff for the re-
sults of medical treatment even where
such treatment is itself negligent, so
long as the plaintiff exercised reason-
able care in his selection of a physi-
cian. I
'
This instruction is clearly a correct statement of law. See
Restatement of Torts, Second, Section 457 (comment a), p.
Defendant objects to the instruction because the negligence
of plaintiff's doctors is not an issue. However, the jury
was instructed at the start of the trial that: "You are
permitted to draw from facts which you find have been proved
such reasonable inferences as seem justified in the light
of your experience." Transcript of proceedings, p. 111.
he jury was then told of seven unsuccessful operations and
informed that the four rhizotomies resulted in a total
inability of plaintiff to use his left leg. Fromthose
facts, the jury might infer negligence on the part of the
doctors. A reasonable question to arise from that inference
is "to what extent is the defendant liable for the results
of the negligent treatment?" Instruction No. 18 is proper
under these facts.
Following the jury verdict for plaintiff, defendant
moved for a new trial, alleging the verdict was marked by
passion and prejudice. Defendant specifically complains of
the $715,000.00 portion of the verdict awarded for pain,
suffering and loss of established course of life.
The record shows plaintiff's life largely consists of
experiencing intractable pain. Plaintiff cannot participate
in the outdoor activities which he loved. He can no longer
be an active, productive member of his family. Nor is he
able to enjoy a physical relationship with his wife. Defendant's
claims investigator, William J. Burke, stated in his deposition
that in his opinion, Mr. Callihan suffered more than any
other claimant with whom Mr. Burke had come in contact
during his thirty-four year career as a claims investigator.
Pain can constitute the most devastating loss suffered
by an injured person; Greatest happiness is found in sharing
family love, knowing and feeling the beauty of nature, and
in laughter, quiet reflection, and experiencing inner peace.
When pain destroys these richest of life's treasurers, the
quality of life has been significantly diminished. The evidence
here supports the award made.
On c r o s s - a p p e a l , p l a i n t i f f r e q u e s t s w e award prejudgment
i n t e r e s t a t t h e r a t e of t e n p e r c e n t p e r annum t o r u n from
t h e d a t e of p l a i n t i f f ' s i n j u r y , March 25, 1978. Although w e
a r e w e l l aware of t h e p o l i c y r e a s o n s f o r a n award of prejudgment
i n t e r e s t , p l a i n t i f f ' s request i s denied. S e c t i o n 27-1-211,
MCA, s t a t e s i n relevant part:
"27-1-211. R i g h t t o i n t e r e s t . Every p e r s o n
who i s e n t i t l e d t o r e c o v e r damages c e r t a i n
o r c a p a b l e of b e i n g made c e r t a i n by c a l c u l a -
t i o n and t h e r i g h t t o r e c o v e r which i s v e s t -
ed i n him upon a p a r t i c u l a r day i s e n t i t l e d
a l s o t o r e c o v e r i n t e r e s t t h e r e o n from t h a t
day. . ."
T h i s s t a t u t e a l l o w s i n t e r e s t o n l y from t h e d a t e of judgment,
a s t h a t i s t h e day t h e damages a r e c a p a b l e of b e i n g made
certain. Ryan v . Ford Motor Co. (D.C. Mont. 1 9 7 1 ) , 334
F.Supp. 674; Wyant v . Dunn ( 1 9 6 2 ) , 140 Mont. 1 8 1 , 368 P.2d
The i s s u e s p r e s e n t e d on a p p e a l a r e n o t f r i v o l o u s . Plaintiff's
r e q u e s t f o r Rule 32 s a n c t i o n s i s d e n i e d .
The judgment of t h e D i s t r i c t C o u r t i s a f f i r m e d and
p l a i n t i f f ' s requests denied.