No. 80-87
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
CARL LAUI'4ANf
Plaintiffs, Respondent and Appellant,
VS .
LARRY 0 LEE,
.
Defendant and Appellant,
and
KYLE J. WRIGHT and LESIA WRIGHT,
Defendants and Respondents.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead.
Hon. James Salansky, Judge presiding.
Counsel of Record:
For Appellant:
Keller and Gilmer, Kalispell, Montana
Robert Keller (Lee) argued, Kalispell ?.Tontana
I,
Trieweiler, Hoyt, Kalispell, Montana
Terry N. Trieweiler (Lauman) argued, Kalispell, Montana
For Respondents:
Warden, Christiansen and Johnson, Kalispell, Montana
Richard DeJana argued, Kalispell, Montana
Submitted: January 14, 1981
Decided: April 1, 1981
Filed: /?!PI? 1 18
91
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff Carl Lauman and defendant Larry Lee each
appeal from the judgment entered following a jury trial in
the Eleventh Judicial District Court, Flathead County.
Appellants raise the following issues:
1. Did Lauman suffer actual damages as a result of
Lee's conduct to justify an award of exemplary damages?
2. Was there sufficient evidence to support the verdict
in favor of Kyle and Lesia Wright?
3. Did the District Court err in allowing evidence of
filing fees or witness fees?
4. Was it proper to instruct the jury that Montana law
requires car headlights be visible for 500 feet?
5. Was the jury's award of exemplary damages influenced
by passion and prejudice?
6. Did prejudicial error arise from granting eight
total peremptory challenges to Lee and the Wrights without a
showing that Lee's interests were hostile to the Wright's?
On the night of February 24, 1980, an automobile collision
occurred just east of Kalispell between Lauman's vehicle and
another vehicle apparently driven by Kyle Wright. Lauman,
traveling eastbound out of town on U.S. Highway 2, slowed as
he approached its intersection with Bernard Road and began
to turn left across the westbound traffic lane onto Bernard
Road. The Wright vehicle was traveling westbound on Highway
2 and collided with Lauman's car as he negotiated the turn.
The collision demolished the right side of Lauman's station
wagon and the right front end of the Wrights', including the
right headlights. Lauman suffered physical injuries to his
hip, back and neck.
Although under normal circumstances, the Wright vehicle
would have had the right-of-way, there was evidence that the
Wrights' headlights were not illuminated, or were so obscured
by mud as to be ineffective. Neither Lauman nor a witness in
the car following him had seen any approaching headlights.
A second witness in the trailing vehicle reported seeing no
lights until she noticed a flash of lights immediately
before hearing the sound of the impact.
Larry Lee is Kyle Wright's stepfather and was the owner
of the Toronado involved in the accident. He arrived at the
scene shortly after the accident while the investigation was
still in progress. When directed to the obscured condition
of the remaining headlight by investigating officer Dana
Kraut, Lee immediately began wiping the dim-beam headlight.
Kraut halted Lee after one swipe, directed him to refrain
from any further wiping, and momentarily left the immediate
vicinity. After Kraut had stepped away, Lee backed up to
the front of his car, and was seen wiping both left headlights
from behind his back. Having cleaned the headlights, Lee
and Kyle and Lesia Wright left the scene in his car. Officer
Kraut was thereafter unable to test the visibility and
illuminating characteristics of the headlights based on their
condition at the time of the collision.
Lauman brought this action alleging negligence resulting
in personal injury against Kyle and Lesia Wright, and negligent
entrustment against Larry Lee. The complaint was later
amended to include a claim for exemplary damages against Lee
pursuant to section 27-1-221, MCA. The negligent entrust-
ment count was dismissed at the close of the case. The jury
found no negligence on the parts of the Wrights, but did
award exemplary damages against Lee in the amount of $17,500,
plus costs.
Lee moved the District Court for a new trial. Lauman
as to the Wrights, moved the District Court for a judgment
notwithstanding the verdict or in the alternative, a new
trial on the issue of the Wrights' liability. All motions
were denied. Lauman and Lee each appeal from the judgments
and denials of their motions.
The jury found by special interrogatory that Larry Lee
willfully violated the law at the scene of the accident, and
that Carl Lauman suffered actual damages as a result of
Lee's violation of the law. Based on these determinations,
the jury made its award of exemplary damages. Lee argues
the exemplary damage award is improper because Lauman suffered
no emotional distress resulting from Lee's actions, there
was no underlying tort, and any violation of law abridged an
obligation to the state rather than to Lauman. Lee further
insists Lauman did not suffer actual damages because the
Wrights were found not negligent; and exemplary damages are
not appropriate in the absence of actual damages.
Section 27-1-202, MCA, allows compensatory damages to
every person who suffers detriment from the unlawful act of
another. It is manifest from the plain meaning of this
provision that if Lee committed an unlawful act which resulted
in damages to Lauman, Lauman is entitled to compensation. It
is equally apparent under section 27-1-221, MCA, that a jury
may award exemplary damages where the defendant has been
guilty of either actual or implied malice. Furthermore,
implied malice may be shown by proof that a defendant engaged
in a course of conduct knowing it to be harmful or unlawful.
Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122, 132, 580
P.2d 915, 921, overruled on other grounds, Bohrer v. Clark
(1978)I Mont . , 590 P.2d 117, 35 St.Rep. 1878.
-4-
Notwithstanding Lee's insistence to the contrary, Lauman
claimed exemplary damages pursuant to section 27-1-221, MCA,
rather than under the tort of outrage. The statutory frame-
work of that section sets forth no specific requirement of
an underlying tort or mental distress; nor will we imply such
requirements through judicial construction. A plaintiff need
only show actual damages pursuant to section 27-1-202, MCA.
State v. District Court of Eighth Judicial District (1967),
149 Mont. 131, 423 P.2d 598 (hereinafter Larson).
Our function in reviewing the sufficiency of proof of
actual damages is to determine whether there is substantial
credible evidence in the record to support the jury's verdict.
We must view the evidence in a light most favorable to Lauman,
the prevailing party below, and where the record presents
conflicting evidence, resolved by the jury, this Court is
precluded from disturbing the verdict. This rule is parti-
cularly applicable when the District Court has passed upon
the sufficiency of the evidence on motion for new trial and
has upheld its sufficiency. Strong v. Williams (1969), 154
Mont. 65, 68-69, 460 P.2d 90, 92.
Lee indisputably wiped the headlights, thus destroying
critical physical evidence relating to the plaintiff's theory
of the case. Officer Kraut testified he would have considered
the results of illumination tests in his investigation and
determination of fault; and the Wrights' insurance adjuster
stated he would have considered the same in his recommendation
to the company concerning settlement. The issue finally was
placed before the jury on conflicting testimony regarding the
headlights, where the physical evidence would have been con-
clusive had it been available.
Although the precise extent of damages attributable to
the destruction of physical evidence may indeed be elusive,
we cannot say Lauman definitely was not damaged as a result
of Lee's wanton actions. An identifiable basis for actual
damages exists, which arises from the deprivation of Lauman
to illumination tests and results. Available physical
evidence proving inadequate illuminating powers would have
enhanced Lauman's settlement potential or the probability of
a plaintiff's verdict. Evidence conclusively proving otherwise
may have saved Lauman the expense of litigating an unmeritorious
claim. Such evidence was unavailable solely due to Lee's
conduct, and Lauman's cause of action was concomitantly more
speculative. The jury resolved the issue in finding that
Lee's unlawful actions caused Lauman actual damages.
The failure of the jury to fix a monetary value as
Laumants damages does not of necessity indicate an absence
thereof and consequently precludes the award of exemplary
damages. We held in Larson, supra, that - party who can
any
state a claim bringing him under section 27-1-202, MCA, may
also pursue exemplary damages under section 27-1-221, MCA.
The finding of actual damages is the primary requisite step
toward any award of exemplary damages. ~ i l l e r Fox (1977),
v.
174 Mont. 504, 571 P.2d 804. The amount of actual damages
bears no gravity in this regard.
Lauman's attack on the sufficiency of the evidence to
support the verdict favoring the Wrights is also unpur-
suasive. The defense presented considerable evidence that
Lesia Wright was a passenger in the Toronado, rather than
the driver, and therefore free of any negligence. Kyle
Wright, who admitted to being the driver, testified he
turned on his headlights before leaving the Lee home and saw
them reflected off the doors of the Lee garage. Lesia
Wright also noticed the reflection. Kyle then negotiated
the distance from the house to the scene of the accident
without incident, although it was dark and the interval
included the crossing of a narrow, dangerous bridge.
Dorothy Schrade, approaching the accident scene from the
north on Bernard Road, distinguished a light from the Wright
vehicle for a considerable distance. Reviewing this evidence
pursuant to Strong, supra, we must sustain the District
Court.
Lee contests the propriety of accepting into evidence
by judicial notice the filing fee and certain witness fees
because there was no evidence connecting the fees directly
to Lee's actions. Lee argues this evidence alone supports
the finding of actual damages to Lauman and therefore the
subsequent award of exemplary damages.
As we have already discussed, Lee's activities resulted
in ample, albeit somewhat abstract, bases for actual damages
to Lauman. In light of the independent grounds for damages,
the admission of the various fees was harmless error, if
error at all. A reversal cannot be predicated upon an
error in admission of evidence, where the evidence in question
was not of such character to have affected the result in the
case. Donohoe v. Landoe (1952), 126 Mont. 351, 362, 251
P.2d 560, 565-66.
The jury was instructed that pursuant to section 61-9-
216, MCA, every vehicle must have a headlamp visible from
not less than 500 feet. The jury was also instructed that
pursuant to section 61-9-220, MCA, motor vehicles must have
low beam headlamps which illuminate persons or vehicles for
a distance of at least 100 feet. Lee argues that only the
latter is a correct statement of the law as applied to auto-
mobiles; and that the jury instruction reciting the 500 foot
visibility standard improperly prejudiced Lee's case.
Section 61-9-216, MCA, by its express terms applies
only to "every vehicle . . . not specifically required by
the provisions of this chapter to be equipped with lamps or
other lighting devices." Motor vehicles are specifically
required under section 61-9-220, MCA, to be equipped with
headlamps. Under the plain meaning of the provisions of
section 61-9-216, MCA, that section does not apply to motor
vehicles. See, Jones v. Judge (1978), 176 Mont, 251, 577
P.2d 846. Nevertheless, the giving of the instruction was
not reversible error.
A visibility standard of only 500 feet would indeed be
a lax requirement. Officer Kraut testified that a lighted
match may be visible at night from as far as 600 yards;
moreover, normal car headlights can be seen for a number of
miles. Two vehicles converging at 55 miles per hour eclipse
a 500 foot gap in about three seconds.
The instruction, although an erroneous statement of the
statutory applicable law, constituted only harmless error.
The error if anything, generally benefited the defense in
this case. Brown v. North Am. Mfg. Co. (1978), 176 Mont.
98, 115, 576 P.2d 711, 721. Furthermore the visibility and
illumination standards for headlights were relevant only to
the negligence issue, rather than Lee's conduct; and thus
could not have affected the outcome of the verdict against
Lee. Ratcliff v. Murphy (1967), 150 Mont. 31, 430 P.2d
627; Rule 61, M.R.Civ.P,
Lee next asserts that the award of exemplary damages
was the result of the inflamed passion and prejudice of the
jury. He argues the award is excessive in light of the
conduct--in Lee's argument, the initial, innocuous wipe--
which caused Lauman any damage, and explicable only as
influenced by passion and prejudice. Lee also argues that
passion and prejudice are reflected by the inordinate
mathematical percentage of his assets represented by the
award.
We have recently discussed the jury's prerogative in
setting exemplary damages in Butcher v. Petranek (1979), -
Mont . - 593 P.2d 743, 36 St.Rep. 830.
, The jury may con-
sider such attendant circumstances as the malice or wanton-
ness of the act, the injury intended, the motive for the
act, the manner of commission and the deterrent effect on
others, as well as the defendant's wealth. Butcher, 593 P.2d at
745, 36 St.Rep. at 834. The jury had discretion reasonably to
calculate a suitable punishment for Lee's actions after
listening to the testimony and weighing the evidence. We
will not disturb that calculation on appeal.
Finally, as in Butcher, Lee's assertion of passion and
prejudice is unsupported by any reference to the record, to
improvident remarks by counsel or witnesses for Lauman, or
to any other prejudicial source. Lee lauds the jury for its
reasonable verdict in favor of the Wrights in his earlier
argument on the absence of any actual damages. Absent any
showing of possible sources of passion or prejudice, it
I
would be inconsistent to assume that a jury, acting reasonably
in finding no negligence, suddenly was overcome by passion
and prejudice in assessing exemplary damages. Butcher, 593
P.2d at 747, 36 St.Rep. at 835.
The final issue before us concerns peremptory juror
challenges. The district judge, without setting forth a
specific basis for his decision, allowed a total of eight
peremptory challenges to the defendants--four to the Wrights
and four to Lee. Lauman argues that the failure of the
District Court to follow the procedural guidelines laid down
in Hunsaker v. Bozeman Deaconess Foundation (1978), -
Mont . -, 588 P.2d 493, 35 St.Rep. 1647, gave rise to a
presumption of prejudice.
The rule prior to Hunsaker for determining whether the
granting of additional peremptory challenges constituted
reversible error was explained in Leary v. Kelly Pipe Company
(1976), 169 Mont. 511, 549 P.2d 813. A party claiming error
was required to show: (1) that the opposing parties were
not entitled to additional peremptory challenges; (2) that
the complaining party exhausted his peremptory challenges;
(3) the complaining party has suffered material injury from
the action of the court; and (4) that as a result thereof
one or more objectionable jurors sat on the case. 169 Mont.
at 516, 549 P.2d at 816.
In Hunsaker, we recognized that under the Leary approach,
the appellant is typically subjected to the nearly insurmountable
burden of proving actual prejudice. The reviewing court is,
in such an instance, forced to evaluate the actual conduct
of the jury, of which there is no record. The Leary procedure
virtually ignores the correctness of the trial court's ruling,
although a trial court making an adequate record in issuing
its order would provide the most exacting basis for review.
In order to alleviate this anomalous result, we expressed in
Hunsaker that in reviewing these issues we shall focus our
attention on the correctness of the District Court's ruling
at the time it was made. 588 P.2d at 500, 35 St-Rep. at
1652. To facilitate our review and ensure existence of a
proper record to that purpose, we made the following suggestion:
"The District Courts should seriously con-
sider the use of the pretrial conference as
the best procedure to be used in resolving
questions such as the number of peremptory
challenges to be allowed each side. If for
some rare reason the District Court holds no
pretrial conference, the question of peremptory
challenges should be raised by appropriate written
motion filed before the commencement of jury
selection, and it should set forth all facts and
references tending to support his claim of
hostility. In any case, the opposing party or
parties should be given adequate time to respond
to the claims of hostility.
"The trial court should, as a bare minimum, rule
on the peremptory challenge issue before the
questioning of jurors begins. To afford a
basis for review, it should expressly set forth
in the record the reasons for its ruling and the
facts on which it relies in making its decision."
588 P.2d at 501, 35 St-Rep. at 1654.
We iterate here our desire that District Courts follow
this procedure. We shall resort to examination of the
conduct of the jury, as in Leary, only where there is an
insufficient record by which to review the trial court's
order.
Although the HunsakeP guidelines were not followed in the
instant case, we do have sufficient facts before us to
review the propriety of its order granting Lee four peremptory
challenges. At the time additional challenges were ordered,
Lauman was proceeding against Lee on separate theories of
negligent entrustment and damages arising from the destruction
of evidence. Regarding the former, Lee's position was
hostile to the Wrightsl--their intervening negligence severed
his negligence liability. The latter theory stems from an
entirely separate transaction not involving the Wrights.
Section 25-7-224, MCA, allows each party four peremptory
challenges. "Each party" means "each side" unless the
positions of the codefendants are hostile to each other.
Mullery v. Great Northern Ry. Co. (1915), 50 Mont. 408, 148
P. 323. Here Lee and Wrights were codefendants only concerning
the automobile collision. They occupied hostile positions
on that matter at the time of the ruling. The District
Court order granting separate peremptory challenges was
therefore correct.
Affirmed as to both appeals. Each party shall bear
his own costs of appeal.
"-. -
Justice
We Concur:
Chief Justice