Gehnert v. Cullinan

NO. 83-32
IN THE SUPRl3ME COURT OF THE STATE OF MONTANA
1984

HAROLD GEHNERT ,
Plaintiff and Appellant,
-vs-
JOHN CULLINAN, WILLIAM CULLINAN,
PAT CULLINAN and ROBERT CULLINAN,

Defendants and Respondents.
........................................
LINA BRENNER,

Plaintiff and Appellant,
-vs-

ELOISE CULLINAN and JOHN CULLINAN,
Defendants and Respondents.

APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Leonard Langen, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Gene Huntley argued, Baker, Montana
For Respondents :

Lucas & Monaghan; Thomas M. Monaghan argued, Miles
City, Montana

Submitted: June 7, 1984

Decided: ~ u g u s t9, 1984
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

This is an appeal from a judgment of the District
Court of the Seventh Judicial District of the State of
Montana, in and for the County of Dawson, involving Harold

Gehnert and Lina Brenner. Each of the plaintiffs/appellants
sued the defendants, and their lawsuits were combined for
trial. Nearly eight years after the incidents which gave
rise to the lawsuits, a jury rendered its verdict in favor

of the plaintiffs, nine in favor and three against, awarding
the plaintiffs their medical expenses in the amount of
$614.32 and each was awarded an additional $18,000 in
punitive damages. An appeal was taken by the plaintiffs,
briefs were filed and this Court ordered a rebriefing by
both parties.
An opinion in this case was issued on March 2, 1984.
A petition for rehearing was filed by appellant Gehnert and
this Court granted a rehearing. The opinion was withdrawn

and the case was argued before the Court en banc on June 7,
1984. Having heard the arguments of counsel, we reissue our
opinion of March 2, 1984.
Three issues are presented for this Court's
consideration:
(1) whether the jury's failure to award damages for
pain and suffering and award only special damages,
constitutes an inadequate recovery for compensatory damages;
(2) whether an award for punitive damages can properly

be considered in determining the adequacy of the
compensatory damages award; and
(3) whether the trial court's failure to properly
i n s t r u c t t h e j u r y on t h e i s s u e of l i a b i l i t y is a f a c t o r to

be considered in determining whether the damages are

inadequate.

The p l a i n t i f f s were neighbors of the defendants and

became i n v o l v e d i n a l a n d d i s p u t e o v e r l e a s e d property t h a t

had been l e a s e d by B . J . B r e n n e r i n 1969. Harold Gehnert is

t h e b r o t h e r of L i n a B r e n n e r , B . J . Brenner's wife. The l e a s e

was for f i v e years, t e r m i n a t i n g on J u n e 2 3 , 1974. At the

time the land was leased, according to Brenner, it was

unimproved and a b o u t t e n o r t w e l v e a c r e s of t h e p r o p e r t y was

susceptible to improvement, s o he cleared it, fenced it,

leveled it, diked i t , d i t c h e d i t , p l a n t e d i t and i r r i g a t e d

it. I n 1974, t h e l a s t y e a r of h i s l e a s e , he p l a n t e d a l f a l f a

and c o r n on t h i s a c r e a g e .

According t o B.J. Brenner, h i s l e a s e provided t h a t i f

he gave t h e l e s s o r t h i r t y d a y s n o t i c e i n w r i t i n g h e would

have t h e r i g h t t o renew t h e lease for an a d d i t i o n a l f i v e

years. He t e s t i f i e d t h a t i n A p r i l 1 9 7 4 , h e g a v e n o t i c e by

l e t t e r and f o l l o w e d t h a t n o t i c e up w i t h a new l e a s e and a

check f o r another year I s rent.

I n J u l y of 1 9 7 4 , a f t e r t h e f i r s t f i v e y e a r p e r i o d had

terminated, the defendant, John Cullinan, came to Mr.
Brenner's home and advised him that he and his brother,

W i l l i a m , had l e a s e d t h e p r o p e r t y . P l a i n t i f f Brenner a d v i s e d

Cullinan that his own l e a s e was superior to that of the

Cullinans because he had an o p t i o n to renew the original

l e a s e which o p t i o n had b e e n e x e r c i s e d . T h e r e a f t e r Brenner

c o n t i n u e d t o f a r m and manage t h e p r e m i s e s . H e h a r v e s t e d one

c r o p o f h a y and s w a t h e d t h e s e c o n d c u t t i n g . The s e c o n d c r o p

of h a y was baled and removed by the Cullinans. At trial
they admitted entering the premises, baling the hay and

t a k i n g i t f o r t h e i r own u s e w i t h o u t n o t i c e , e x p l a n a t i o n o r

payment t o B r e n n e r . I n a d d i t i o n t h e y took t h e t h i r d c u t t i n g

t h a t year.

Corn on the leased property was harvested and in

S e p t e m b e r , c a t t l e b e l o n g i n g t o t h e B r e n n e r s and G e h n e r t w e r e

t u r n e d o n t o t h e p r o p e r t y i n q u e s t i o n t o " c l e a n up" f o l l o w i n g

the harvest. I t was a t t h i s t i m e , e a r l y i n September, t h a t
t h e d e f e n d a n t J o h n C u l l i n a n , c a l l e d G e h n e r t , and t o l d him t o

move t h e cows o f f t h e l e a s e d p r o p e r t y o r h e , C u l l i n a n , would

move them. Gehnert t o l d Cullinan t h a t h i s brother-in-law

B r e n n e r had t h e l e a s e and t h a t h e and B r e n n e r were c l e a n i n g
up some corn on the property. Thereafter he called the

sheriff for assistance, and t h e s h e r i f f came o u t t o m o n i t o r

this dispute. On September 12th, Gehnert and John and

William Cullinan arrived at the property. Disregarding
G e h n e r t l s demands that the cattle be left alone, the

C u l l i n a n s b r o k e down t h e f e n c e s and w i t h t h e a i d o f o t h e r

members o f t h e i r f a m i l y d r o v e t h e c a t t l e t h r o u g h f e n c e s o n t o

the highway, scattering them for a half-mile from the

p a s t u r e where t h e y had b e e n g r a z i n g .

Needless to say this caused a certain amount of

unfriendliness with the neighbors. After the cattle had

been gathered, they were trailed from the Brenner land

a c r o s s t h e l e a s e d l a n d and p u t in corrals adjacent t o the

leased land for sorting-out purposes. The following day

G e h n e r t and Midge B r i l z , Lina B r e n n e r l s pregnant daughter,

went to the corrals, mounted two horses and sorted the
cattle. G e h n e r t l s and Srennerls cattle were separated,
w h i l e L i n a B r e n n e r w a t c h e d from h e r c a r . They t h e n began t o
move t h e c a t t l e b u t w h i l e t h e y w e r e b e i n g moved, s i x of t h e
Cullinans arrived on the leased land. According to the
plaintiffs, the Cullinans spread out through the cattle

trying to scatter and d i s o r g a n i z e them and then tried to
d r i v e t h e c a t t l e o u t on t o t h e r o a d a g a i n . The p l a i n t i f f s

t r i e d t o k e e p t h e c a t t l e from b e i n g d r i v e n from t h e p a s t u r e
by t h e C u l l i n a n s .

L i n a B r e n n e r became f r i g h t e n e d a t t h i s t i m e and d r o v e

o u t s i d e t h e p e r i m e t e r of t h e p a s t u r e t o t h e same g a t e w h e r e
t h e C u l l i n a n s had p a r k e d t h e i r c a r . She was c o n c e r n e d t h a t
the Cullinans might harm her pregnant daughter who was
working t h e c a t t l e . A c c o r d i n g t o h e r s t o r y , when s h e g o t t o
where t h e a c t i v i t y was g o i n g on s h e s t o p p e d t h e c a r . Eloise

Cullinan then entered her car from the passenger side,

g r a b b e d h e r by t h e h a i r , p u l l e d h e r f r o m t h e c a r and p i n n e d
her on t h e ground. When E l o i s e g o t o f f of her and L i n a
t r i e d t o s t a n d , J o h n C u l l i n a n s h o v e d h e r back t o t h e g r o u n d .
About t h a t t i m e H a r o l d G e h n e r t s t a r t e d t o w a r d E l o i s e t o come

t o Lina's aid. H e was mounted on a h o r s e , and f o u r o f t h e
C u l l i n a n men s u r r o u n d e d h i s h o r s e , s l a p p e d and punched him

and e i t h e r knocked h i m o r p u l l e d him from h i s h o r s e t o t h e
ground. According t o t h e testimony, a l l of t h i s a b u s e of

t h e p l a i n t i f f s t o o k p l a c e on t h a t p a r t o f the leased land
t h a t was f e n c e d , improved a n d p l a n t e d by B. J . B r e n n e r .

The p l a i n t i f f s a r g u e on a p p e a l t h a t t h e t r i a l c o u r t
i m p r o p e r l y d e c l i n e d t o g r a n t t h e m judgment on t h e i s s u e o f

l i a b i l i t y when t h e e v i d e n c e was c l o s e d , and a l s o f a i l e d t o
i n s t r u c t t h e j u r y s o t h a t it c o u l d , under t h e law, d e t e r m i n e
the matter. They allege that they offered appropriate
i n s t r u c t i o n s , a l l o f which were r e f u s e d .
 As previously noted, three i s s u e s were p r e s e n t e d to

t h i s Court for consideration. However, i n view of t h e f a c t

t h a t t h e f i r s t i s s u e is d i s p o s i t i v e , we w i l l not d i s c u s s t h e

other issues. The evidence clearly indicates that the

p l a i n t i f f s s u f f e r e d s e r i o u s and p a i n f u l i n j u r y . The i n j u r y

to Harold Gehnert's back is such that i t may have been

rebroken and there was evidence that he was permanently

i n j u r e d and d i s a b l e d . Lina Brenner s u f f e r e d a r e l a p s e i n t o

a s e v e r e d e p r e s s i o n and w h i l e h e r p h y s i c a l i n j u r i e s may h a v e

been modest, t h e y w e r e a c c o m p a n i e d by p a i n . Her t e s t i m o n y

indicated hair had been pulled from h e r head. The jury

found in this case that the Cullinans committed wrongful

acts toward the plaintiffs, and their attack on the

plaintiffs was the cause of the injuries sustained.

L i a b i l i t y having been e s t a b l i s h e d , it w a s t h e j u r y ' s d u t y t o

award damages for pain and suffering for the serious

injuries suffered. S e e , A l l e r s v. W i l l i s (Mont. 1 9 8 2 ) , 643

P.2d 592, 39 S t . R e p . 745; Ankeny v . Grunstead ( 1 9 7 6 ) , 170

Mont. 1 2 8 , 5 5 1 P.2d 1 0 2 7 ; H o l e n s t e i n v. Andrews ( 1 9 7 5 ) , 1 6 6

Mont. 6 0 , 530 P.2d 476; and W a l k e r v. A l a s k a Road Commission

( A l a s k a 1 9 6 4 ) , 388 P.2d 406.

The j u d g m e n t is v a c a t e d and t h e c a s e i s remanded to

t h e t r i a l c o u r t f o r new t r i a l on t h e i s s u e o f damages o n l y .

W concur:
e

8. $i+L&,rwe-ep
Chief J u s t i c e
~ d f i o r a b l e~ o h nM. McCarvel,
~ i ~ s t r i J utd g e , s i t t i n g i n
c
p l a c e of Mr. J u s t i c e L. C .
Gulbrandson.