No. 80-477
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1981
MERLE D H and MARIE DAHL,
AL
husband and w i f e ,
P l a i n t i f f s and R e s p o n d e n t s ,
VS.
PETROLEUM GEOPHYSICAL COMPANY,
a Corporation l i c e n s e d t o do b u s i n e s s
i n Montana,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e F i f t e e n t h 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 S h e r i d a n .
H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
R o b e r t J. Emrnons, G r e a t F a l l s , Montana
For Respondents:
O t t o T . Habedank, S i d n e y , Montana
R i c h a r d J . O v e r b y , Plentywood, Montana
S u b m i t t e d on b r i e f s : June 2 4 , 1981
Decided: ~ e ~ t e m b e , 1981
3r
Filed: S
- ~ P; 1981
(1, 1
r 'Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by Petroleum Geophysical Company from a judgment
awarding punitive damages in favor of Merle and Marie Dahl,
based on a jury verdict rendered in the Fifteenth Judicial
District, Sheridan County.
Merle and Marie Dahl (Dahl) sued Petroleum Geophysical
Company (PGC) for damages claimed to have occurred to their
farmlands when a seismograph hole drilled and "shot" by PGC
brought a continuous water flow to the farm surface, which
flow PGC failed to plug.
The Dahl complaint was in two counts for actual and
punitive damages. The jury, on the submitted issue of
comparative (called "contributory" in the instructions)
negligence, found PGC 90 percent negligent, the Dahls 10
percent negligent and fixed actual damages at $16,500 and
punitive damages at $8,500. Judgment was entered on October
30, 1980 against PGC for $14,850 actual damages and the
punitive damage figure of $8,500.
PGC has appealed only from the punitive damages award.
It has paid the judgment against it for actual damages, and
satisfaction of judgment to that extent has been entered.
The six issues in appellant's brief can be stated as
two :
1. Is this a contract case for which no punitive
damages are allowable?
2. Is the evidence sufficient to justify submission of
punitive damages as an issue to the jury and to support the
award?
We resolve these issues in favor of Dahl and affirm the
judgment of the District Court.
This case presents a novel appellate situation. Some
of the fact issues upon which PGC relies were necessarily
decided by the jury in arriving at its verdict for actual
damages. Ordinarily on appeal, we review the evidence in
the light most favorable to the prevailing party in the
District Court. Holenstein v. Andrews (1975), 166 Mont.
60, 64, 530 P.2d 476, 478. In the Supreme Court, we do not
retry factual determinations made at trial. No11 v. City
of Bozeman (1977), 172 Mont. 447, 452, 564 P.2d 1296, 1299.
In this case, by satisfying the judgment for actual
damages, PGC has acceded to the correctness of the judgment
and accepted its benefits, particularly including the 10
percent reduction of the actual damages found by the jury.
When a judgment is paid, it passes beyond our review.
Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont.
170, 177, 461 P.2d 448, 452. All questions of fact decided
or impliedly decided by the jury underpinning the satisfied
judgment become moot. This Court does not pass upon moot
questions. State ex rel. Miller v. Murray (1979),
Mont. - , 600 P.2d 1174, 1176, 36 St.Rep. 1713, 1715.
Even though here, the PGC has preserved its right to
review the punitive damage portion of the judgment by filing
a notice of appeal on that part of the judgment, we cannot
review disputes which form the basis for the satisfied
judgment. To rule otherwise might place this Court at odds
with the underlying grounds of the satisfied judgment, which
the appellant has obviously accepted.
The question of whether a contract existed between Dahl
and PGC for the drilling of seismographic holes on Dahl's
property was submitted to the jury as an issue of fact. The
jury was instructed that every person is bound, without
contract, to abstain from injuring the property of another
(instruction no. 6); that Merle Dahl was the agent for his
wife Marie Dahl if a contract existed with PGC (instruction
no. 12); that by virtue of a contract, if one existed, the
negligence of Merle Dahl was imputed to Marie Dahl (instruction
no. 13); that a business visitor on the premises of another
is an invitee (instruction no. 16); the essentials of a
contract (instruction no. 17); the essentials of an implied
contract (instruction no. 18); the necessity of consent to a
contract (instruction no. 19); what constitutes acceptance
(instruction no. 20); the object of a contract (instruction
no. 21); the legality of oral contracts (instruction no.
22); and that if a contract existed between Dahl and PGC,
the jury could not award punitive damages (instruction no.
27).
Instructions from the court to the jury became the law
of the case. Under the instructions, the jury awarded
punitive damages, which impliedly necessitates the conclusion
that no contract existed between Dahl and PGC. By awarding
a reduction in damages because of contributory (comparative)
negligence, the jury impliedly found that a tort was involved
and not a contract. In paying the judgment based on the
jury verdict, PGC acceded to what the jury impliedly found
to reach that verdict. Under the instructions, the jury
found there was no contract. Therefore, it is beyond our
power as an appellate court to determine now the first issue
here, whether a contract existed between Dahl and PGC for
seismographic drilling. Obviously, if we were to reverse
the punitive damages award on the ground that a contract
existed here, we would be reversing the jury verdict, and
negating the basis for the judgment, which has already been
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satisfied. We hold therefore, that PGC may not prevail on
the first issue.
We look now to the second issue, whether the District
Court should have submitted to the jury the issue of punitive
damages.
Punitive damages (referred to in our statutes as "exemplary
damages") are awardable in an action for the breach of an
obligation not arising out of contract where the defendant
has been guilty of oppression, fraud, or malice, actual or
presumed. Section 27-1-221, MCA.
The facts, in the light most favorable to the prevailing
party, are that sometime prior to the drilling, a representative
of PGC called Merle Dahl and offered him $25 per hole for a
series of four or five holes to be drilled on Dahl's farm
property. Dahl said that he belonged to an association
which had set the going price for such drilling at $50 per
hole. The representative said he would call back, which he
later did. In the second conversation, the representative
said that PGC would pay $50 per seismographic hole. Nothing
further was said, and Dahl denied in the trial, that he ever
gave specific permission to PGC or any of its representatives
to go upon his lands for the purpose of drilling.
Subsequently, a seismographic crew arrived at Dahl's
gate with several vehicles. They asked instructions from
Dahl as to how to get across his land to another gate. With
respect to drilling, Dahl testified "I absolutely told them
not to drill down in my meadow, get the hell out of the
meadow, to stay the hell out of there." Notwithstanding
this instruction, the seismograph crew drilled a hole in the
low meadow. At a depth of 120 feet, a union broke on the
rotary drill, and at this point the PGC employee noticed
that water was flowing from the well. He thereafter continued
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drilling until the depth of 200 feet was reached. Twenty-
five pounds of dynamite was inserted into the hole.
The hole was "shot." The third day thereafter, a PGC
representative noticed that water had started flowing in the
drilled hole, but did nothing toward plugging the hole and
left for other territory. However, he informed his supervisor
that the well was still flowing. Shortly after the PGC
crew left, another PGC person came out with some dry cement
and ineffectively tried to plug the hole.
Later PGC made a second attempt to stop the running
water. The surrounding ground was in such condition that
the truck could not get within 100 feet of the hole.
Cement was pumped into the hole but the attempted plug was
ineffectual. Forty-six acres of farmland were damaged.
Thus, the evidence bears out a questionable permission
to do the seismographic drilling, explicit directions from
Dahl not to drill in the area where the water commenced to
flow, and a subsequent course of neglect in failing to plug
the well or make other effective efforts to save the farmlands
from damage.
The District Court denied motions to remove the issue
of punitive damages from the jury and submitted the issue
under an instruction which told the jury that such damages
were awardable if Dahl suffered injuries through gross
negligence, wilful or wanton misconduct, or malice, and the
court defined malice for the purpose of such determination.
The jury was instructed to consider all of the attendant
circumstances, including the nature, extent and enormity of
the wrong, the intent of the party committing it, the amount
of actual damages, and generally all the circumstances
attending the particular acts involved, including any mitigating
circumstances.
Withdrawal of the issue of punitive damages from the
jury has the effect of a directed verdict on that issue
(though no formal direction to the jury would have been
given) and the same rules ought to apply. Thus, an issue
should never be withdrawn from the jury unless the conclusions
from the facts advanced by the moving party follow necessarily,
as a matter of law, that recovery cannot be had under any
view which can be reasonably drawn from the facts which the
evidence tends to establish. Sistok v. Northwestern Tel.
Systems, Inc. (1980), - Mont . -, 615 P.2d 176, 178, 37
St.Rep. 1247, 1249 and Thomas v. Merriam (1959), 135 Mont.
121, 126, 337 P.2d 604, 606. Any genuine issue of fact
should be submitted to a jury unless the evidence is susceptible
to but one construction by reasonable men, and that in favor
of the moving party. Welch v. Nepstad (1959), 135 Mont.
65, 73, 337 P.2d 14, 18.
We find the evidence adduced here by the plaintiff
presented an issue of punitive damages, and that the issue
was properly submitted to the jury. The jury having made
its determination that punitive damages were in fact due
Dahl, this Court has no basis in law upon which to set that
portion of the verdict aside.
~ a h l this appeal asks that we issue an order requiring
in
PGC under specific performance to plug the well as required
by section 82-1-104, MCA, unless Dahl waives the statutory
requirement. This is an issue not tried in the District
Court and not before us on the appeal.
The judgment of the District Court is affirmed.
Justice u
We Concur:
C h i s Justice
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