Lauman v. Lee

Decision Date23 April 1981
Docket NumberNo. 80-87,80-87
Citation192 Mont. 84,38 St.Rep. 499,626 P.2d 830
PartiesCarl LAUMAN, Plaintiffs, Respondent and Appellant, v. Larry O. LEE, Defendant and Appellant, and Kyle J. Wright and Lesia Wright, Defendants and Respondents.
CourtMontana Supreme Court

Keller & Gilmer, Robert Keller argued, Kalispell, for Lee.

Hoyt & Trieweiler, Terry N. Trieweiler, argued, Great Falls, for Lauman.

Warden, Christiansen & Johnson, Richard DeJana argued, Kalispell, for defendants and respondents.

SHEEHY, Justice.

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 entrustment 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), Mont., 590 P.2d 117, 35 St.Rep. 1878.

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 framework 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 particularly 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 conclusive 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 Lauman's damages does not of necessity indicate an absence thereof and consequently preclude the award of exemplary damages. We held in Larson, supra, that any party who can 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. Miller v. Fox (1977), 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 unpersuasive. 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...

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