No. 94-386
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Robert L. Stephens, Jr., R. L. Stephens, Ltd.,
and Terry L. Seiffert, Attorney at Law,
Billings, Montana
For Respondent:
Earl J. Hanson, Hanson, Roybal, Lee & Todd,
Billings, Montana
Submitted on Briefs: November 16, 1995
Decided: January 10, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
This is an appeal from a judgment based upon a jury verdict in
the Thirteenth Judicial District Court, Yellowstone County, and the
court's rulings on admission of evidence, the granting of a
directed verdict in favor of United Industry, Inc., on punitive
damages, and the denial of Brooks B. Barnes' request for post-trial
relief. We affirm.
We restate the issues as follows:
1. Did the District Court err in not granting a new trial
for alleged improper statements in final argument where no
objection was made?
2. Did the District Court err in granting United's motion
for a directed verdict on the issue of punitive damages?
3. Did the District Court err in not granting a new trial
based on the refusal to admit a photograph exhibit taken nine days
after the accident occurred and a letter from Barnes' attorney to
United written four days after the accident?
4. Did the District Court err in not granting a new trial
based on the jury's finding that Barnes suffered no future loss of
earning capacity?
5. Did the District Court err in not granting a new trial
based on the inadvertent failure to instruct on the standard of
care of a bicyclist?
6. Did the District Court err in denying Barnes' motion for
additur?
2
FACTS
On September 6, 1990, Barnes, then age fifteen, was riding his
bicycle along the sidewalk next to the Transwestern I building in
Billings. The Transwestern I building is an office building owned
by United and was being refurbished at the time of the accident.
Barnes rode his bicycle into a plastic pipe that had been placed on
and across the sidewalk by United's employee to allow for the
watering of the grass. Barnes hit the pipe and fell from his bike
breaking both of his wrists. There was no barricade in place at
the time of the accident.
Barnes has incurred several surgeries to his wrists, including
plastic surgery to correct a resulting deformity in both arms.
Despite his injuries, Barnes graduated with honors from high school
and received a scholarship to Marquette University where he is
pursuing a degree in journalism. He currently attends the
University's communication school and, although he types his own
papers, he is required to rest after forty minutes of typing due to
pain in his wrists. Barnes also testified that the injuries have
limited his routine everyday activities as well as his recreational
activities.
Barnes asked for both compensatory and punitive damages. The
case was tried to a twelve-person jury. At the conclusion of
Barnes' case in chief, the District Court granted a directed
verdict on the issue of punitive damages in favor of United. The
remainder of the case was submitted to the jury and the jury found
Barnes thirty percent negligent and United seventy percent
3
negligent. The jury awarded Barnes $89,641 which the court reduced
to $62.763.
At trial, Barnes offered into evidence two pictures. One was
of the accident scene the day after the accident and the other was
of the accident scene nine days later. The court admitted into
evidence the first picture but refused the second.
During closing arguments, the attorney for United admitted
liability but also referenced the action of third parties that may
have contributed to the accident--the subcontractors who apparently
removed the sidewalk barriers without notifying United.
Before the jury was dismissed, Barnes offered an instruction
on the standard of care that a bicyclist must follow. The District
Court inadvertently did not give the instruction to the jury.
Following trial, Barnes filed a motion for additur to increase
the jury verdict from anywhere between $45,000 to $75,000. The
District Court did not grant the motion for additur.
Barnes filed a motion for new trial citing the above grounds
as well as the jury's refusal to award any damages for future loss
of earning capacity. The District Court denied Barnes' requests
for a new trial.
From the court's denial of post-trial relief, grant of a
directed verdict, refusal of evidence, and the jury's verdict,
Barnes appeals.
ISSUE 1
Did the District Court err when it denied Barnes a new trial
for alleged improper statements in final argument where no
objection was made?
Barnes contends that in its final argument United admitted
liability but then argued that its employees were unaware that the
barricade had been removed. United then made an alleged improper
inference that there was third-party liability of some sort on the
part of the contractor for failing to advise United of the removal
of barricades from the sidewalk. Barnes asserts that a new trial
is warranted where improper statements are made in closing
arguments. See Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d
916. In the District Court's memorandum, Barnes' request for a new
trial was denied because Barnes
did not object to any portion of the final argument
submitted by [United's] counsel. Therefore, assuming
that some portion of [United's] counsel's argument was
improper, [Barnes] waived any objections he may have had
to the content of defense counsel's argument.
In Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204, we
held that failure to make a timely objection to alleged improper
statements of counsel in closing argument constitutes a waiver. A
party looses his right to appeal an alleged err where an objection
to that err was waived. Whiting v. State (1991), 248 Mont 207,
221, 810 P.2d 1177, 1187. The record sets forth no objection to
the content of United's final argument nor any request for
corrective action. We therefore conclude that the District Court
did not&r when it denied Barnes a new trial for alleged improper
statements in final argument where there was no objection to the
statements.
ISSUE 2
Did the District Court err in granting United's motion for a
directed verdict on the issue of punitive damages?
5
At the conclusion of Barnes' case in chief, the District Court
granted United's motion for directed verdict on the issue of
punitive damages. The District Court, however, failed to set forth
any findings as to why it did not allow punitive damages.
Nevertheless, this Court will affirm a district court's grant of a
directed verdict if the court's conclusion is correct regardless of
the reasons given. Riley v. American Honda Motor Co. (1993), 259
Mont. 128, 131, 856 P.2d 196, 198 (citing Laurie v. M. & L. Realty
Corp. (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194). We review
a directed verdict in light of the evidence most favorable to the
party against whom the verdict was directed. LaVelle v. Kenneally
(1974), 165 Mont. 418, 529 P.2d 788.
Barnes claims punitive damages should have been assessed upon
United because of United's malicious acts. Punitive damages may be
awarded when the defendant is found, by clear and convincing
evidence, to be guilty of actual malice. Section 27-l-221(1), (5),
MCA.
A defendant is guilty of actual malice if he has
knowledge of facts or intentionally disregards facts that
create a high probability of injury to the plaintiff and
. . deliberately proceeds to act with indifference to
the high probability of injury to the plaintiff.
Section 27-l-221(2), MCA. Barnes alleges United placed the pipe
over the sidewalk and left it there for a period of two weeks in
wanton and willful indifference to the hazard the pipe created for
pedestrians and bicyclists.
United contends there was no evidence presented that showed
the employee who laid the pipe across the sidewalk acted in
6
conscious or blatant disregard of the high probability of injury to
Barnes, or that the employee deliberately proceeded to act in
indifference to the high probability of injury to Barnes. The
employee testified that the barricade was in place when he
initially laid the pipe on the sidewalk and every time he moved the
pipe thereafter. Barnes produced no evidence to the contrary.
In Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 460, 771
P.2d 114, 117, overruled on other grounds by Sacco v. High Country
Independent Press (19951, 896 P.2d 411, 423, 52 St. Rep. 407, 416,
we held punitive damages were not appropriate where the plaintiff
had not presented a prima facie case including clear and convincing
evidence of all elements required under 5 27-l-221, MCA. In order
to render a defendant liable for exemplary damages, plaintiff must
allege and prove something more than mere negligence. Gagnier v.
Curran Const. Co. (1968), 151 Mont. 468, 480, 443 P.2d 894, 901.
In the present case, Barnes did not produce any evidence to
contradict the testimony of United's employee. Accordingly, Barnes
is not entitled to an award of punitive damages. Therefore, we
hold that the District Court did not err in granting United's
motion for a directed verdict on the issue of punitive damages.
ISSUE 3
Did the District Court err in not granting a new trial based
on the refusal to admit a photograph exhibit taken nine days after
the accident occurred and a letter from Barnes' attorney to United
written four days after the accident?
7
At trial, Barnes moved to introduce two photos into evidence.
The first photo was of the accident scene the day after the
accident and the second photo was of the same scene nine days
later. The District Court allowed the first photo into evidence
but did not allow the second because it found the second photo was
not relevant to the conditions at the time of the accident.
The District Court has broad discretion to determine the
admissibility of evidence, and we will not disturb the court's
ruling absent a manifest abuse of discretion. King v. Zimmerman
(1994), 266 Mont. 54, 65, 878 P.2d 895, 902.
In Lindberg v. Leatham Brothers, Inc. (1985), 215 Mont. 11,
24, 693 P.2d 1234, 1243, we held that a district court's exclusion
of evidence was proper where the evidence consisted of a photograph
that "does not tend to prove, disprove, or support any material
fact in the case . Iand is] irrelevant and repetitive." The
second photograph depicted an accident scene nine days after the
accident. The District Court correctly concluded that the
photograph was not relevant to the conditions existing at the time
of the accident.
Barnes also attempted to introduce the photograph as evidence
that United took no action to remove the pipe or replace the
barricade after the accident thus contending that the photograph
was relevant to the issue of punitive damages. In addition, Barnes
offered into evidence a letter his attorney wrote to United four
days after the accident. The letter generally advised United of
the accident. Barnes argued that the letter was evidence of
8
further notice to United of the accident and that United acted
maliciously in not removing the pipe or replacing the barricade
after receiving such notice. The District Court reserved ruling on
the picture and the letter's admissibility for purposes of punitive
damages until after Barnes' case in chief.
In Issue 2, we affirmed the District Court's directed verdict
on the issue of punitive damages. Once a determination is made
that punitive damages are not allowed, evidence pertaining to them
should be excluded. Ryan v. Ald, Inc. (1965), 146 Mont. 299, 303,
406 P.2d 373, 375. Therefore, the District Court properly refused
the photograph exhibit and the letter for purposes of punitive
damages as well.
The decision to grant or deny a new trial is within the sound
discretion of the trial judge and will not be disturbed absent a
showing of manifest abuse of that discretion. Baxter v. Archie
Cochrane Motors, Inc. (Mont. 1995), 895 P.2d 631, 632, 52 St. Rep.
444, 444. We conclude that the District Court properly refused the
photograph exhibit taken nine days after the accident occurred and
the letter Barnes' attorney sent to United. We therefore conclude
that the court did not abuse its discretion in not granting a new
trial.
ISSUE 4
Did the District Court err in not granting a new trial based
on the jury's finding that Barnes suffered no future loss of
earning capacity?
9
Barnes presented several expert witnesses who testified to the
effect the injury had on Barnes' future earnings. United offered
no testimony on this issue, but rather relied upon its cross-
examination of Barnes' witnesses. The jury, upon instruction that
it could disregard any testimony from any expert, found Barnes'
injury would not result in future loss of earnings. Barnes claims
on appeal that there was a lack of substantial evidence to support
the jury's findings and that the District Court erred in not
granting a new trial.
We review a jury's verdict to determine if there is
substantial credible evidence in the record to support it.
Barthule v. Karman (19941, 268 Mont. 477, 485, 886 P.2d 971, 976.
Substantial evidence is "more than a scintilla, but . less than
a preponderance, of evidence." State v. Shodair (Mont. 1995), 902
P.2d 21, 26, 52 St. Rep. 879, 882. We have held that it is not the
function of this Court to agree or disagree with a jury's verdict.
Schulke v. Gemar (1994), 264 Mont. 184, 188, 870 P.2d 1378, 1380.
If conflicting evidence exists, we do not retry a case because the
jury chose to believe one party over another. Simchuk v. Angel
Island Community Assn. (1992), 253 Mont. 221, 229, 833 P.2d 158,
163.
Barnes introduced testimony of expert witnesses as evidence of
his future earning capacity. The credibility and weight to be
given these expert witnesses is within the province of the jury and
not of this Court. See Hagen v. Dow Chemical Co. (1993), 261 Mont.
407, 494, 863 P.Zd 413, 418.
10
Barnes' orthopedic surgeon, Dr. Hansen, testified on behalf of
Barnes that Barnes' injury could inhibit full growth potential of
bones in his wrist and he would therefore be susceptible to further
injury. Dr. Hansen further testified that Barnes' had an estimated
five to fifteen percent permanent impairment of the function in his
wrists. Nevertheless, Dr. Hansen testified during cross-examination
that if surgery was successful Barnes would be physically capable
of performing the duties necessary for a career in journalism.
Barnes also called Dr. Adair, an economic analyst, as an
expert witness. Under direct examination, Dr. Adair testified that
as a result of this injury Barnes' work life will be decreased by
12.9 years, he will incur a 15 percent reduction of productivity,
and he will have to endure a substantial increase in insurance
premiums. During cross-examination, Dr. Adair conceded that Barnes
would not be affected by increased insurance premiums if Barnes is
provided health insurance through his work place. Additionally,
Dr. Adair testified that if Barnes became a successful journalist
and did not require any additional commitment of resources over and
above what any other journalist would require Barnes would not
suffer any loss of earning capacity.
Barnes argues that Brockie v. Omo Construction (1994), 268
Mont. 519, 887 P.2d 167, is controlling in this case. Brockie was
killed in an automobile accident involving a sign owned by Omo
Construction. His estate brought a survivorship action against Omo
Construction. The jury awarded zero dollars in survivorship
damages despite the fact that the evidence and stipulations
11
established funeral and medical expenses and a loss of future
earning capacity for the remainder of Brockie's life expectancy.
This Court, citing Putman v. Pollei (1969), 153 Mont. 406, 457 P.2d
776, and Rudeck v. Wright (1985), 218 Mont. 41, 709 P.2d 621,
reversed the jury verdict and remanded for a new trial on
survivorship damages, finding that the evidence establishing
survivorship damages was either stipulated to or offered without
contradiction.
Brockie, Putman, and Rudeck are clearly distinguishable from
the present case. All of those cases involved survivorship claims
brought by estates where the evidence as to survivorship damages
was uncontested. In this case, although Barnes suffered injuries
to his wrist, he was able to successfully complete high school and
attend college. There was conflicting testimony as to the effect
of this injury on his future earnings and we will not retry the
case because the jury chose to believe one party over another.
Simchuk, 833 P.2d at 163.
In reference to the experts' testimony, the jury was
instructed that it was not bound by the opinion offered and that it
should determine what weight to give the testimony. We conclude
that there was substantial credible evidence in the record to
support the jury's finding that Barnes suffered no future loss of
earning capacity.
A District Court's grant or denial of a motion for a new trial
will not be disturbed absent a showing of a manifest abuse of
discretion. Baxter, 895 P.2d at 632. In the instant case, the
12
District Court showed no abuse of discretion because there was
sufficient evidence to support the jury's verdict. We therefore
conclude that the court did not err in denying Barnes' request for
a new trial.
ISSUE 5
Did the District Court err in not granting a new trial based
on the inadvertent failure to instruct on the standard of care of
a bicyclist?
At trial, Barnes offered Plaintiff's Instruction No. 15 which
was the standard of care for a bicyclist. United did not object to
the instruction and it was accepted by the District Court. In the
recap of the instructions, however, Plaintiff's Instruction No. 15
was not referenced. One of Barnes' attorneys noticed the omission
but did not make an objection or bring the omission to the court's
attention.
Barnes moved the District Court for a new trial based on this
omission. The District Court denied Barnes' motion because Barnes
did not object nor did he request any curative actions, and
therefore, Barnes' objection was untimely. Further, the court held
that even if the objection was timely, the lack of the instruction
did not prejudice Barnes. The court pointed out that the standard
had been referred to in other instructions and that this
instruction was merely a more detailed version of the standard of
care for a bicyclist. We will not disturb a district court's
denial of a motion for new trial absent a showing of manifest abuse
of discretion. Baxter, 895 P.2d at 632.
13
The District Court's omission of the instruction was an
inadvertent act of the court and not a refusal of the instruction.
This omission was an irregularity in the proceedings of the court.
In Franck v. Hudson (1962), 140 Mont. 480, 373 P.2d 951, we stated:
A long line of cases in this state has established the
rule that when a party fails to make a timely objection
to an irregularity in the proceedings of the court . .
then the irregularity is waived.
Franck, 373 P.2d at 953-54 (citing Herren v. Hawks (1961), 139
Mont. 440, 365 P.2d 641). Barnes' counsel disclosed, in an
affidavit to the court, that he became aware of the omission during
the court's reading of the instructions. According to the record,
Barnes did not bring the omission to the court's attention.
Therefore, Barnes waived any objection to the court's omission of
the jury instruction. It follows that the District Court did not
abuse its discretion in denying a new trial.
We hold that the District Court did not err when it denied a
new trial based on the inadvertent failure to instruct on the
standard of care of a bicyclist.
ISSUE 6
Did the District Court err in denying Barnes' motion for
additur?
Barnes moved the District Court for an order granting additur
in the amount of $45,000 to $75,000. The District Court denied
Barnes' motion and stated:
[Barnes'] Motion for Additur has no merit. In Bohrer v.
Clark (1978), 180 Mont. 233, 590 P.2d 117, the Court
expressly held that the trial Court had no authority to
add to a jury's verdict. That case has not been
overruled and represents the law of this State, as of
14
this date. Therefore, this Court, even if it were
sympathetic to [Barnes] argument, could not grant
[Barnes'] Motion for Additur.
Barnes argues that this Court should overturn the rule stated in
Bohrer because it is inconsistent for a court to be allowed to
decrease a jury verdict but not to increase the same.
This Court, in Bohrer, adhered to the reasoning in State
Highway Commission v. Schmidt (19641, 143 Mont. 505, 391 P.2d 692,
where we discussed the issue of a district court's right to
increase a jury verdict. Bohrer, 590 P.2d at 121. A grossly
inadequate verdict should not be permitted to stand. In that
instance, however, both parties are entitled to a new trial whereby
L_,
a jury can properly access liability and damages. To have the
court award increased damages would effectively deny the right to
a trial by jury. In decreasing a jury verdict, the court awards an
amount within the amount awarded by the jury. Accordingly, a
court's decrease of a verdict is founded in law while a jury's
verdict is an award based on the facts. Schmidt, 391 P.2d at 695
(citing Dimick v. Schiedt (1935), 293 U.S. 474, 486, 55 S. Ct. 296,
301, 79 L. Ed. 603).
Barnes contends that since Article II, Section 26, of the
Montana Constitution permits parties to waive their rights to a
jury trial, the rationale of Schmidt is no longer valid. Barnes'
contention is unsound because a party's right to a jury trial is
secured regardless of whether the party chooses to waive that
right. See Mont. Const. art. II, 5 26. The analysis in Schmidt
remains persuasive, and therefore, we affirm the rule stated in
15
Bohrer. We conclude that the District Court correctly interpreted
that rule of law, and therefore, the court did not err in denying
Barnes' motion for additur.
-
Justice v
We concur:
16
January 10, 1996
CERTIFICATE OF SERVICE
I hereby certify that the followir lg certified order was sent by United States mail, prepaid, to the
following named:
Terry L. Seiffert
Attorney At Law
Box 31181
Billings MT 59107-1181
Robert L. Stephens, Jr.
Attorney At Law
Box 1438
Billings MT 59103-1438
Earl J. Hanson
Hanson, Roybal, Lee & Todd, P.C.
Box 7207
Billings MT 59103-7207
ED SMITH
CLERK OF ~THE SUPREME COURT
STATE OF MONTANA
BY:YG&&Q&J -
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