Priest v. Taylor, 86-218

• Decision Date: 13 July 1987
• Docket Number: No. 86-218,86-218
• Citation: 740 P.2d 648,227 Mont. 370
• Parties: Maurice Dean PRIEST, Plaintiff, Respondent and Cross-Appellant, v. Lawrence TAYLOR, Jr., Pearl R. Taylor, and Larry Kevin Taylor, Jr., a minor, Defendants, Appellants, and Cross-Respondents. and Linda PRIEST, Plaintiff and Appellant, v. Lawrence TAYLOR, Jr., Pearl R. Taylor, and Larry Kevin Taylor, Jr., a minor, Defendants and Respondent.
• Court: Montana Supreme Court

Page 648

740 P.2d 648

227 Mont. 370

Maurice Dean PRIEST, Plaintiff, Respondent and Cross-Appellant, v. Lawrence TAYLOR, Jr., Pearl R. Taylor, and Larry Kevin

Taylor, Jr., a minor, Defendants, Appellants, and

Cross-Respondents.

and

Linda PRIEST, Plaintiff and Appellant, v. Lawrence TAYLOR, Jr., Pearl R. Taylor, and Larry Kevin

Taylor, Jr., a minor, Defendants and Respondent.

No. 86-218.

Supreme Court of Montana.

Submitted on Briefs May 18, 1987.

Decided July 13, 1987.

Landoe, Brown, Planalp, Kommers & Johnstone; Gene I. Brown, Bozeman, for the Taylors.

Robert L. Stephens, Jr., Billings, for the Priests.

GULBRANDSON, Justice.

Defendants Lawrence Taylor, Jr., Pearl Taylor and Larry Kevin Taylor, Jr., (Taylors) appeal a Yellowstone County District Court order granting a new trial to the plaintiff Maurice Priest in this personal injury action. Mr. Priest and his wife Linda cross appeal from a district court order denying their motion to file an amended complaint. Maurice Priest also cross appeals on one issue relating to voir dire. The issues are,

1) whether the court properly granted a new trial to plaintiff because;

a) the court failed to specifically instruct the jury on defendants' burden to show what part of plaintiff's injuries were attributable to his preexisting condition; and/or,

b) the court failed to instruct the jury on the aggravation of plaintiff's preexisting mental condition;

2) whether the court erred in denying the Priests' motion to amend the complaint to include an action for loss of consortium;

3) whether the court improperly refused to allow plaintiff to use certain exhibits during voir dire. We affirm the grant of a new trial and the ruling in regard to voir dire. We reverse the order denying the motion to amend the complaint.

On August 28, 1982, plaintiff was involved in an automobile accident in Billings, Montana. A car driven by Larry Kevin Taylor, Jr., a minor, struck the plaintiff's car from the rear. Prior to the accident, plaintiff had a history of rather severe mental illness and of injuries to his right shoulder and/or back.

In May 1984, plaintiff filed a complaint in Yellowstone County District Court alleging that Larry Kevin Taylor, Jr., had negligently and recklessly caused the accident. The complaint also sought to impute Larry's alleged negligence to his parents, Lawrence and Pearl Taylor, under Sec. 61-5-108(2), MCA. On August 28, 1985, plaintiff and his wife Linda moved (1) to amend the complaint by adding Linda Priest as a party plaintiff to assert her claim for loss of consortium, or (2) in the alternative, that the amended complaint be allowed to proceed as an independent, separate action on behalf of Linda. In October 1985, the court denied the motion to amend reasoning that 1) Rule 15, M.R.Civ.P., allows a party to amend his pleadings under certain circumstances; 2) this motion to amend sought to add an additional person as a party to assert a new claim; 3) the wife was not a party as contemplated by Rule 15; and 4) therefore, the motion was not truly a motion to amend under Rule 15.

This action went to trial in November 1985. During voir dire, plaintiff's counsel attempted to use five signs upon which were printed legal words or phrases and explanatory comments. The phrases were "proximate cause," "burden of proof," "preexisting condition" and "damages." Plaintiff hoped to explore the jurors' opinions, if any, on these concepts. The court disallowed the use of the signs.

The court and the parties' counsel struggled for some time attempting to formulate proper jury instructions on two issues; i.e., (1) the aggravation of preexisting conditions and (2) the burden of proof as to the aggravation of injury and as to the divisibility of injury. Ultimately, jury found for the plaintiff, awarding him $15,100. The plaintiff moved for a new trial and that motion was granted. The court ruled that it committed two errors in instructing the jury. One error was the failure to instruct the jury that once the plaintiff had satisfactorily proved that the accident aggravated his preexisting condition, the burden of proof shifted to the defendants to show what portion of plaintiff's damages was attributable to the accident and what portion was attributable to the preexisting condition. The second error related to instructing the jury on the aggravation of plaintiff's preexisting mental condition. Defendants appeal the grant of a new trial.

The standard of review is clear.

Whether to grant or deny a new trial is within the sound discretion of the trial court, (citation omitted), and will not be overturned absent a showing of manifest abuse of that discretion. (Citation omitted.)

Walter v. Evans Products Co. (Mont.1983), 672 P.2d 613, 616, 40 St.Rep. 1844, 1847.

We first address the court's ruling as to the burden of proof on the apportionment of damages. The court gave two general instructions on the burden of proof and apportioning damages. Instruction number 2 defined "preponderance of the evidence" and instructed that a party asserting the affirmative of an issue has the burden of proving that issue by a preponderance of the evidence. Instruction number 22 stated in pertinent part,

If you find that the plaintiff's pre-existing physical condition was aggravated by the accident, then it is your duty to try to apportion the harm sustained by the plaintiff between his pre-existing conditions and the harm contributed to or aggravated by the accident, if any.

If you find that such harm is divisible, you may award only such damages as you may attribute to the accident. But, if you find that the harm caused is not divisible then, in such event, you must award damages to compensate the plaintiff for all of the harm he has sustained.

As stated, one of the grounds for the grant of a new trial was the failure to instruct the jury that once the plaintiff had satisfactorily proved the accident aggravated his preexisting condition, the burden of proof shifted to the defendant to prove the proper apportionment of damages. The lower court apparently reasoned that such an instruction was required by Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460. Azure involved two joint tortfeasors who were potentially jointly and severally liable for the entire judgment. In that situation, this Court stated:

But where the harm caused is theoretically divisible, plaintiff's burden is to make a prima facie showing that the harm caused was at least a contributing proximate result of the defendant's act or omission. The burden then shifts to the defendant to either deny all liability or to prove that the harm caused can be divided and the damages therefore apportioned.

Azure, 596 P.2d at 471. Under Azure, the burden does shift to the defendant to establish apportionment between the joint tortfeasors. However, this Court has not explicitly ruled that the burden of proof shifts to the defendant to establish apportionment of damages between a preexisting condition and subsequent injury.

In Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 654 P.2d 972, we were presented with a plaintiff with a preexisting condition, a defendant and the possibility of an apportionment of damages between the preexisting condition and the later accident. The defendant objected to that part of a jury instruction which advised the jury that, "But if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability." Callihan, 654 P.2d at 976. In upholding the propriety of that instruction, this Court cited the following reasoning from Azure,

"... to impose upon the plaintiff the sometimes impossible burden of proving which tortious act did which harm, would be an expression of a judicial policy that it is better that a plaintiff, injured through no fault of his own, should take nothing simply because he could not prove which tortious act caused which harm. We believe on the other hand, that where the tortious act is established, it is better that the tortfeasor should be subject to paying more than his theoretical share of the damages in a situation where the tortious conduct has contributed to the confused situation making it difficult to prove which tortious act did the harm."

Callihan, 654 P.2d at 976, quoting Azure, 596 P.2d at 470-471. This Court held that the Azure rationale applied in Callihan, so that the single defendant would be liable for the entire disability if the evidence did not permit an apportionment between the preexisting condition and the aggravating accident.

The rationale behind the Azure rule (the burden of proof shifts to the defendant to establish apportionment after the plaintiff has met his initial burden) also applies in this situation. See 2 Minzer, Nates, Kimball, Axelrod and Goldstein, Damages In Tort Actions, Sec. 15.34[a], p. 15-111, (1986); ("The plaintiff is not charged with a burden of proof as to the actual apportionment of damages in an aggravation case. Any burden of that nature must be assumed by the defendant, since the defendant is the party standing to gain by litigating the apportionment issue.") In an appropriate case, the instruction proposed by the District Court could be proper to clarify that the plaintiff does not have the burden of proving what portion of his disability is attributable to the defendant in a preexisting condition case.

However, as a caveat, we state that we prefer the following language over that proposed by the lower court. Once the plaintiff has satisfactorily met his burden (of proving that the accident aggravated his preexisting condition) and where the plaintiff's evidence shows no basis for apportionment, the defendant has the burden of going forward with evidence to establish apportionment. We do not hold that such an instruction is required in this kind of case. We do hold that the lower court did not abuse its discretion in granting a new trial on the basis...