No. 83-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
JON ERIC ELIASON,
Plaintiff and Respondent,
-vs-
DONALD E. WALLACE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Benson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tipp, Hoven, Skjelset & Frizzell, P4issoula, Montana
For Respondent :
Kristine Davenport, Missoula, Montana
Mulroney, Delaney & Dalby; P. Mars Scott, Missoula,
Montana
-.
--
Submitted on Briefs: January 19, 1984
Decided: April 30, 3984
Filed:
Clerk
Mr. J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e a p i n i o n of the
Court.
This case comes on appeal from a judgment of the
F o u r t h J u d i c i a l D i s t r i c t C o u r t , M i s s o u l a County, f i n d i n g t h e
defendant liable to the plaintiff for property damage,
medical costs, lost wages, pain and suffering, punitive
damages and c o s t s . We affirm.
At approximately 10:20 p.m. on June 20, 1980, the
plaintiff l e f t t h e Cozy C o u r t T r a i l e r P a r k i n L o l o , Montana
on h i s 1 9 8 0 Yamaha m o t o r c y c l e . Plaintiff's m o t o r c y c l e had
an automatic turn-on h e a d l i g h t which c o u l d n o t be t u r n e d o f f
a s l o n g a s t h e e n g i n e was i n a n "on" p o s i t i o n .
After leaving the trailer court, the plaintiff
p r o c e e d e d n o r t h on Highway 93. A t t h e same t i m e , defendant
was p r o c e e d i n g s o u t h o n Highway 9 3 i n a 1 9 5 3 Volkswagon. As
the vehicles approached the Circle K store in Lolo,
defendant made a left hand turn crossing in front of
plaintiff's path. When the plaintiff swerved to avoid
hitting defendant's vehicle he lost control of his
motorcycle and crashed sustaining personal and property
damage.
Montana Highway Patrolman James Wierson immediately
i n v e s t i g a t e d t h e a c c i d e n t and concluded t h a t p l a i n t i f f had
been d r i v i n g w i t h i n t h e p o s t e d speed l i m i t . Wierson i s s u e d
a c i t a t i o n t o defendant f o r f a i l u r e t o make a p r o p e r left
turn.
On November 14, 1980, plaintiff brought an action
against t h e d e f e n d a n t a l l e g i n g d e f e n d a n t was n e g l i g e n t a n d
l i a b l e f o r p e r s o n a l and p r o p e r t y damage a r i s i n g o u t o f the
accident. The m a t t e r was h e a r d on J a n u a r y 4 , 1983, b e f o r e
t h e c o u r t s i t t i n g w i t h o u t a j u r y a n d o n March 8 , 1983, t h e
c o u r t rendered its decision. B a s e d upon t h e t e s t i m o n y a n d
e x h i b i t s o f both p a r t i e s t h e D i s t r i c t C o u r t found t h a t t h e
defendant's failure t o yield t o plaintiff constituted gross
n e g l i g e n c e and a w a r d e d p l a i n t i f f $4,346.51 i n compensatory
a n d p u n i t i v e damages p l u s c o s t s . The D i s t r i c t C o u r t a l s o
f o u n d t h a t p l a i n t i f f was n o t n e g l i g e n t .
From t h e o r d e r o f t h e D i s t r i c t C o u r t d e f e n d a n t a p p e a l s
raising four issues.
Initially, appellant argues t h e D i s t r i c t Court erred
i n its d e c i s i o n because t h e weight of evidence indicated t h e
plaintiff was solely or comparatively negligent in the
accident.
Although there was conflicting evidence surrounding
the facts of the accident, our function in reviewing
findings of fact i n a c i v i l a c t i o n t r i e d by t h e D i s t r i c t
Court without a jury i s n o t t o s u b s t i t u t e o u r judgment in
p l a c e of t h e t r i e r of facts but rather it is confined to
determining whether there is s u b s t a n t i a l c r e d i b l e evidence
to support the findings of fact and conclusions of law.
i-lorning v . Estate of Lagerquist ( 1 9 7 0 ) , 1 5 5 Mont. 412, 473
P.2d 5 4 1 ; Cameron v. Cameron ( 1 9 7 8 ) , 1 7 9 Mont. 2 1 9 , 587 P.2d
939. A s t h i s C o u r t s t a t e d i n Cameron:
"A1 t h o u g h c o n £ l i c t s may e x i s t i n t h e
evidence p r e s e n t e d , it is t h e d u t y of t h e
t r i a l judge t o r e s o l v e such c o n f l i c t s .
H i s f i n d i n g s w i l l n o t be disturbed on
appeal where they are based on
s u b s t a n t i a l though c o n f l i c t i n g evidence,
unless t h e r e is a c l e a r preponderance of
evidence against such findings."
Cameron, s u p r a , 1 7 9 Mont. a t 227.
I n determining whether t h e t r i a l c o u r t ' s f i n d i n g s were
s u p p o r t e d by s u b s t a n t i a l e v i d e n c e w e must view t h e e v i d e n c e
in the light most favorable to the prevailing party.
Hellickson v. Barrett Mobile Home Transport, Inc. (1973),
161 Mont. 455, 507 P.2d 523. Substantial evidence is
evidence such as will convince reasonable men and on which
such men may not reasonably differ as to whether it
establishes the prevailing party's case, and, if all
reasonable men must conclude that the evidence does not
establish such case, then it is not substantial evidence.
Staggers v. USF & G (1972), 159 Idont. 254, 496 P.2d 1161.
The evidence may be inherently weak and still be deemed
"substantial" and substantial evidence may conflict with
other evidence presented. Campeau v. Lewis (1965), 144
Mont. 543, 398 P.2d 960. Moreover, Rule 52(a), M.R.Civ.P.
provides, in part, the "[flindings of fact shall not be set
aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses."
The record before us indicates substantial evidence
upon which the District Court based its decision.
Next, the appellant asserts the District Court erred
in awarding respondent punitive damages because there was no
showing that appellant acted with malice.
In awarding respondent punitive damages the District
Court found that appellant's failure to yield to oncoming
traffic constituted gross negligence and recklessness.
Appellant has not demonstrated by a clear preponderance of
the evidence that the District Court's finding was clearly
erroneous. Accordingly, the award of punitive damages was
proper. In Harrington v. Holiday Rambler Corporation
(1978), 176 Mont. 37, 575 P.2d 578, we held that it is not
necessary to show actual malice to recover punitive damages.
The trier of fact may take into account whether the acts
complained of are "of such a character as to indicate a
reckless disregard of the rights of the plaintiff" in
awarding punitive damages. Butcher v. Petranek (1979), 181
?rMont. 358, 593 P.2d 743. Moreover, the District Court's
findings meet the standa.rd for presumed malice this Court
recently set forth in Owens v. Parker Drilling Co. (Mont.
1984), No. 83-172. In Owens, this Court said:
"When a person knows or has reason to
know of facts which create a high degree
of risk of harm to the substantial
interests of another, and either
deliberately proceeds to act in conscious
disregard of or indifference to that
risk, or recklessly proceeds in
unreasonable disregard of or indifference
to that risk, his conduct meets the
standard of willful, wanton, and/or
reckless to which the law of this State
will allow imposition of punitive damages
on the basis of presumed malice."
The appellant also argues the District Court erred in
measuring respondent's damages because the amounts awarded
for lost wages and for pain and suffering were inconsistent
with the evidence presented at trial. Specifically,
appellant asserts it was an error to award respondent $463
in lost wages because respondent testified he only made $56
per day and only missed one day of work as a result of the
accident. In addition, respondent maintains that the
District Court erroneously awarded respondent $2,500 for
pain and suffering because there was no objective evidence
substantiating the damages.
The record shows respondent did not miss more than one
day from work because he had scheduled two weeks vacation
time prior to the accident and he used that time to
recuperate. Accordingly, the District Court's computation
of lost wages was reasonable and supported by the record.
Likewise, the District Court's decision to award $2,500 for
pain and suffering was proper. Montana law requires only
that the trier of fact exercise calm and reasonable judgment
in determining an award of damages and the amount of the
award rests in the sound discretion of the trier of fact.
Jarussi v. Board of Trustees of School Dist. No. 28, Lake
County (Mont. 1983), 664 P.2d 316, 40 St.Rep. 720. Moreover,
in Cremer v. Cremer Rodeo Land and Livestock Co. (Mont.
1981), 627 P.2d 1199, 38 St.Rep. 574, we said that a
recovery of damages will not be denied, even if the
mathematical precision of the figure is challenged, provided
the evidence is sufficient to afford a reasonable basis for
determining the amount awarded. Here the record afforded
the District Court a reasonable basis for awarding
respondent $2,500 for pain and suffering.
Finally, appellant argues that respondent should not
have recovered for damages that were partially paid by
respondent's insurance companies because respondent was not
the real party in interest and appellant would be exposed to
multiple lawsuits. At trial, appellant had ample
opportunity to object that all real parties in interest had
not been joined and compel respondent under Rule 17,
M.R.Civ.P., to join as necessary parties any insurance
companies who were subrogated to respondent's loss.
Moreover, appellant raises this issue for the first time on
appeal so we cannot now consider its merits. ~fpfrmed.
$'
2
We concur:
Justices
Mr. Justice Daniel J. Shea will file a special
concurrence at a later time.