No. 85-406
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
PATRICK DAWSON,
Plaintiff and Appellant
v.
THE BILLINGS GAZETTE, A Division of
LEE ENTERPRISES, a Foreigh Corporation;
DR. GENE V. HOLDEN, M.D.; and the BILLINGS
CLINIC, a Partnership,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patten Law Firm, P.C.; James A. Patten and
Russell D. Yerger, Billings, Montana
For Respondent:
Moulton, Bellingham, Longo and Mather, P.C.;
William A. Forsythe, Billings, Montana
Anderson, Edwards and Molloy; Donald W. Molloy,
Billings, Montana
Submitted: June 12, 1986
Decided: October 10, 1986
Filed:
a n-7, Clerk
8
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Patrick Dawson appeals a jury verdict in Yellowstone
County District Court which found in his favor on the issues
of liability and proximate cause in his wrongful termination
suit but awarded him zero damages. The District Court denied
Dawson's motion for a new trial.
The issues on appeal are whether the jury verdict is
supported by sufficient evidence in the record and whether
the District Court abused its discretion in denying Dawson's
motion for a new trial.
We affirm.
Appellant Dawson filed suit against the Billings Gazette
on September 23, 1982, alleging that he had been wrongfully
terminated from his employment as a reporter with the
newspaper on June 21, 1982, and that the Gazette had violated
its duty of good faith and fair dealing. Dawson also filed
suit against Dr. Holden and the Billings Clinic for
disclosing confidential medical information to the Gazette
without his authorization. The claim against Dr. Holden and
the Billings Clinic has been dismissed.
A jury trial was held in March, 1985, and the jury found
that:
1) The Gazette had breached its duty of good faith and
fair dealing to Dawson;
2) the Gazette was the proximate cause of Dawson's
damages;
3) Dawson was entitled to zero damages;
4) the Gazette was not liable for punitive damages.
Dawson motioned for a new trial- on the issue of damages
or, in the alternative, a new trial on all issues. The
motion was denied on May 9, 1985.
As to the first issue, in Barmeyer v. Montana Power Co.
(1983), 202 Mont. 185, 191, 657 P.2d 594, 597, we stated the
standard by which a jury verdict is to be reviewed;
Motions to set aside jury verdicts as not
supported by the evidence are proper only
when there is a complete absence of any
credible evidence in support of the
verdict. All evidence and all inferences
drawn therefrom must be considered in a
light most favorable to the adverse
party. The courts will exercise the
greatest self-restraint in interfering
with the constitutionally mandated
processes of jury decision. Jacques v.
Montana National Guard (1982), 199 Mont.
493, 649 P.2d 1319, 1325-1326, 39 St.Rep.
1565, 1573-1574.
In Holenstein v. Andrews (1975), 166 Mont. 60, 530 P.2d
476, we held that where there is substantial credible
evidence in the record to support a verdict of zero damages,
the verdict will be upheld.
We find substantial credible evidence in the record to
support the jury's verdict.
First, Dawson had three sources of income from the time
he was fired until the time of trial. He received four and
one-half weeks pay for unused vacation and holiday time and
two weeks severance pay from the Gazette. He received
unemployment compensation and performed free-lance work for
several publications, including U.S.A. Today, Time Magazine,
The Denver Post, The Miami Herald, The Dallas Morning News,
and The Great Falls Tribune.
Second, we find that Dawson has failed to mitigate his
damages. An injured party is not required to seek employment
in another line of work or to move to a different locality.
Selland v. Fargo Public School Dist. No. 1 (N.D. 19811, 302
N.W. 2d 391, 393. However, he or she must exercise ordinary
diligence to procure other employment. Vallejo v. Jamestown
College (N.D. 1976), 244 N.W.2d 753, 759.
After he was fired Dawson applied to just four
newspapers, restricted his job search to papers of equal or
greater circulation than that of the Gazette, and only those
located in the western United States. He totally rejected
the idea of working for a smaller newspaper in fear of the
resulting harm to his career. The Sacramento Bee indicated
that a position might be available but Dawson rejected the
inquiry because of the sala.ry cut he would be taking.
The Gazette presented several witnesses who testified
that in their positions as newspaper editors, they would be
willing to hire reporters who had moved to smaller papers and
even those who had been fired from other papers. Several of
the witnesses themselves had taken positions with smaller
papers in hopes of advancing their careers. Evidence was
also presented that another reporter fired by the Gazette
found comparable employment with the Bozeman Chronicle within
one month of her dismissal.
It is very likely that Dawson could have obtained
full-time employment with a reputable newspaper a short time
after his firing if he had vigorously sought to do so. By
failing to pursue comparable full-time work in the journalism
field, Dawson failed to mitigate his damages.
The plaintiff has the burden of proving his own damages
Holenstein, 530 P.2d at 478. In addition, the jury is not
compelled to believe the plaintiff's testimony. Maykuth v.
Eaton (Mont. 1984), 687 P.2d 726, 41 St-Rep. 1800-
Dawson argues that because he was never offered a job,
he has proven his damages. We reject the argument and hold
that there is substantial evidence from which the jury could
have concluded that Dawson suffered no damages. The jury
decides what evidence to accept and what evidence to reject.
We refuse to overturn the jury verdict.
As to whether the District Court abused its discretion
in denying Dawson's motion for a new trial, we refer to
Lindquist v. Moran (Mont. 1983), 662 P.2d 281, 284-285, 40
In considering a motion for new trial,
the trial court is not to weigh the
evidence where conflicting evidence is
presented. Yerkich v. Opsta (1978), 176
Mont. 272, 274, 577 P.2d 857, 859.
Rather, the trial court's discretion to
grant a new trial for insufficiency of
the evidence is exhausted when it finds
substantial evidence to support the
verdict. Stenberg v. Neel, (1980),
Mont., 613 P.2d 1007, 1011, 37 St.Rep.
1170, 1175; Kincheloe v. Rygg (1968), 152
Mont. 187, 191, 448 P.2d 140, 142. Where
conflicting evidence is present, it is an
abuse of the trial court's discretion to
grant a new trial. Ferguson v. Town
I?ump, Inc. (1978), 177 Mont. 122, 128,
580 P.2d 915, 919, overruled on other
grounds, Bohrer v. Clark 180 Mont. 233,
590 P.2d 117. We will not substitute our
view of the evidence for that of the jury
where that evidence furnishes reasonable
grounds for different conclusions. Rock
Springs Corp. v. Pierre (1980), Mont.,
615 P.2d 206, 211, 37 St.Rep. 1378, 1384.
In a.ddition, the evidence must be reviewed in a light
most favorable to the prevailing party. Holenstein, 530 P.2d
There is conflicting evidence as to whether or not
Dawson has been damaged. Dawson testified that due to his
inability to find comparable employment subsequent to his
dismissal from the Gazette he had been damaged in the amount
of lost wages. The Gazette presented testimony that Dawson
failed to mitigate his damages and actually made a conscious
decision to pursue a free-lancing career in journalism rather
than to seek full-time employment with another publication.
The following is an excerpt of the cross-examination of
Dawson at trial. Counsel for the Gazette is referring to
Dawson's December 7, 1982 deposition.
Q. Let me refer you to page 44, line 25.
That is the very bottom of the page.
And I asked you: "Isn't it true that to
an extent, you have turned away from, I
guess, the chance of getting an
entry-level position as a beginning
reporter at a small to medium sized
newspaper so that you could pursue the
course you've set for yourself?"
And you answered: "I think I am
justified in making that a low priority."
A. Yes.
Q. I asked: "But, in fact, you have made
it a low priority, haven't you?"
And you answered affirmatively, didn't
you?
A. Right.
Q. The free-lancing work and staying in
Billings as opposed to going to work for
a small weekly or, I guess, a small and
not very significant daily, is a choice
you have made with your life, isn't it?
A. I would say so.
The jury decided that the Gazette had breached its duty
of good faith and fair dealing to Dawson but concluded that
Dawson was not entitled to any damages. The District Court
must respect the jury's decision when conflicting evidence is
present, as is the case here. To grant a new trial in light
of conflicting evidence would be an abuse of discretion.
Reviewing the evidence in a light most favorable to the
Gazette, we agree with the District Court that substantial
evidence exists to support the jury's verdict of zero
damages. The Gazette's witnesses established that there is a
job market for a person with Dawson's skills. He certainly
had the ability to work as a salaried reporter for another
news organization but decided to work on his own. The jury
could reasonably conclude that Dawson had not done enough to
mitigate his damages.
The District Court did not abuse its discretion in
denying Dawson's motion for a new trial.
Affirmed.
We concur
Justice
Justice John C. Sheehy, dissenting:
I dissent to permitting evidence of jobs outside of his
living area for mitigation of damages.
Mr. Justice Frank B. Morrison, Jr. specially concurs in
the majority opinion as follows:
In the recent case of Safeco Insurance Co. v.
Ellinghouse (1986), - P.2d - 43 St.Rep. 1689, this Court
,
blatantly substituted its judgment for that of the jury. In
addition to an award for punitive damages, the jury in
Ellinqhouse had awarded $200,000 for mental distress damages.
In setting that award aside the majority said:
The trial court awarded damages of $200,000 to
Ellinghouse for emotional distress, in opposition
to which Safeco advanced the argument of an absence
of malice on its part. Although an award of mental
anguish is justified by the evidence presented by
Ellinghouse on the issue of malice, the amount of
the award substantially exceeds that which the
evidence could sustain and therefore must be
reduced.
Without any question there was substantial evidence to
support the jury's award of $200,000 in compensatory damages
to Ellinghouse. This Court simply disagreed with the jury
award and substituted its judgment for that of the jury.
Let us see how the Court's approach in Safeco can be
squared with the Court's rationale employed to uphold a zero
verdict. The majority in this case states:
Dawson arsues that because he was never afforded a
job, he Gas proven his damages. We reject the
argument and -hold there is substantial evidence
from which the jury could have concluded that
Dawson suffered no damages. - jury decides what
The
evidence to accept - - evidence - reject.
and what to
(Emphasissupplied. )
The jury decided that the Gazette had breached its
duty of good faith and fair dealing to Dawson but
concluded that Dawson was not entitled to any
damages. - district court must respect -
The the
jury's decision when conflicting evidence is
~resent.- - - - - here. To arant a new trial
L.
as is the case
in light of conflicting evidence Gould be an abuse
of discretion. (Emphasis supplied.)
My learned brother, the Chief Justice, has signed this
opinion upholding an award of zero damages on the basis that
courts cannot interfere with the discretion of a jury. In
the Ellinghouse case, the Chief Justice cast a decisive vote
in favor of disregarding the discretion of the jury.
The Chief Justice is not the only villain in this
melodrama of inconsistency. Time and again the members of
this Court disregard appellate rules of review and substitute
their judgment for that of the District Judge or the jury;
except, of course, where the members of the Court agree with
the District Court or jury and then they employ the rule,
applicable in all cases, that we must respect the judgment of
the trier of fact.
I am concurring in the decision to affirm the discretion
of the jury in this case, although I personally disagree with
the verdict. The law compels us to respect the discretion of
the trier of fact in all cases whether the verdict be large
or be nothing at all.