No. 82-182 INTHE SUPREPX COURT OF THE STATE OF MONTANA 1982

ROBERT W. CALLIHAN, Plaintiff and Respondent,

-vsBURLINGTON NORTITZ3N INC., Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Kenson, Judge presiding.

Counsel of Record: For Appellant: M. Kent Koolen, Billings, Montana Corette, Smith, Pohlman & Allen, Butte, Montana For Respondentr John C. Hoyt, Great Falls, Montana

Submitted on Briefs: September 16, 1932 ~ecided:December 6, 1982 

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# -61982 Filed:Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. Burlington Northern appeals a judgment in the amount of $1,031,029.00 awarded plaintiff, RobertW. Callihan, for personal injuries suffered in an accidentMarch 25, 1978. A motion for new trialwas made and denied. This appeal followed. On March 25, 1978,Callihan was an engineer on a Burlington Northern locomotive. The back of the seat, in which he was sitting,broke, causing him to fall backwards. By the end of the trip, Callihanwas suffering severeback pain. He made sixmore trips as engineer prior to ceasing work April 9, 1978,due to unbearable back pain. Callihan had suffered two previous back injuries while working for Burlington Northern,both resulting in settlements between Callihan and BurlingtonNorthern. In 1954,a train

on which Callihan was ridingmade an emergency stop, throwing him from a bunk. About a year later, he had back surgery. A laminectomywas performed and vertebrae in his lower back

were fused. Following the surgery,Callihan returned to his regular employment and his normal recreational activities-- hunting,horseback riding,dancing, lawnwork, carpentry, remodeling and painting. He also began playing golf and became quite accomplished. In 1971, Callihan slipped and fell on ice outside the train depot in Troy,Montana. He continued regular employment until 1973, when a second back operationwas performed. The operation consisted of another laminectomy and the fusion of vertebrae immediately above the first fusion. Following the second operation, Callihan again returned to his regular, full-time employment. His preaccident activities were not restricted. However, he took Tylenol 3regularly, aswell asValium in the evening for sleeping purposes. ~fter open heart surgery in 1977, three doctors pronounced Callihan to be in good health and able to return to work without restriction. Later in 1977, after a mandatory physical, a railroad doctor reported that Callihan had passed with "flying colors." Apparently, Callihan then remained in good health until suffering his third back injury onMarch 25, 1978. The resultingpain was so severe,he ceased working and sought relief from many different doctors and procedures. From April 10, 1978,until the commencement of this suit on August 28, 1980,Callihan had threemyelograms, two laminectomies, five nerve blocks, four rhizotomies and a partial rhizotomy, for a total of seven operations. He also visited a chiropractor and an acupuncturist, to no avail. Themyelograms failed to disclose the cause of pain. The laminectomiesonly temporarily lessened the pain. Therefore, the rhizotomies (severanceof nerves) were performed. Callihan's left leg is nearly useless as a result of the rhizotomies. Mowever, the pain remains excruciating. Callihan now spends ninety percent of his time lying on his right side on the sofa with a pillow between his legs to relieve the pressure on his left leg. Sitting in a chair to eat dinner is a major, energy-draining task. He is unable to enjoy any of his previously discussed physical acitivities. The operations have lefthim impotent. Mrs. Callihanmust be present to assist him twenty-four hours a day. Tylenol 

### 4,Percodan and Valium allow Callihan to sleep. Dr. HermanWalters, Director of the Clinical Psychology Department at the University of Montana, examined plaintiff.He testified at trial that Callihan suffers significant reactivedepression; that he does not enjoy life; that he is sad and very pessimistic about the future. Although it has since passed, he at one time had suicidal tendencies caused by his condition. Walters testified that Callihan's depression would not improve until his physical condition improved. Dr. Albi, Callihan's treating physician, stated, "Ican only repeat that thisman is totally beyond any rehabilitation physically. 

# . ." Callihan's physical and emotional future is bleak. Joseph Kasperick is an assistant economics professor at Montana College of Mineral Science and Technology in Butte. He prepared an appraisal estimating the value in present dollars of Callihan's earnings to age sixty-five to be $271,828.39, had he not been injured in 1978. Kasperick also estimated the lostvalue in present dollars of Callihan's household services to be $44,309.04,making the total of lost earnings and services $316,137.43. Assuming the jury adopted Kasperick's figures in determining Callihan's total award of $1,031,029.00, they then awarded Callihan approximately $715,000.00 for pain, suffering and loss of his established

course of life. BurlingtonNorthern presented no direct evidence contradicting the above synopsis of plaintiff's case. Instead, defendantattempted to present its case through the crossexamination of plaintiff's witnesses. Callihan's doctors admitted on cross-examination that prior back injuries contributed to Callihan'spresent condition. However, no

onewas able to specifically apportion the various injuries. In appealing the jury verdict and judgment in favor of plaintiff, defendantpresents the following issues for our consideration:(I) Did the District Court err in granting plaintiff's motion for partial summary judgment on the issue of liability under the Safety Appliance Act without then considering proximate cause? (2) Did the District Court err in granting plaintiff's motion in limine to exclude prior settlements of two prior injuries to plaintiff's back? (3) Did the District Court err in overruling defendant's objections to InstructionNo. 17 and InstructionNo. (4) Was the jury verdict of $1,031,029.00 the result of passion and prejudice? On cross appeal,plaintiff requests we consider the following issues: (I) Whether the DistrictCourt erred in denying plaintiff's motion for an order awarding prejudgment interest at the rate of ten percent per annum to run from the date of plaintiff's injury because of defendant's abuse of the judicial process? (2) Whether this Court should grant Rule 32 sanctions for filing of a frivolous appeal forpurposes of delay? We affirm the jury verdict and judgment for plaintiff and deny plaintiff's requests for prejudgment interest and Rule 32 sanctions. Plaintiff'saction is based upon violation by defendant of federal statutes known as the Boiler InspectionAct, 45 U.S.C. §§23-34 (aportion of the Safety Appliance Act) and the Federal Employer's Liability Act, 45

### U.S.C. §§51et seq. Specifically, 45 U.S.C. S23 provides: "It shallbe unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and allparts and appurtenances thereof are in proper condition and safe to operate. 

# . .that the samemay be employed in the active service of such carrierwithout unnecessary peril to life or limb. 

# . ."his section imposes absolute liability upon any carrier which violates it. Lilly v. Grand Trunk Western R. Co.

(1943), 317 U.S. 481, 63 S.Ct. 347, 87 

### L.Ed. 411. On the basis of this statute and the uncontested fact that the seat inwhich plaintiff, Callihan,was sitting broke because of improperwelding,plaintiff moved for partial summary judgmentagainst defendant on the issue of liability, pursuant to Rule 56(c), M.R.Civ.P. Themotion

was granted by order September 10, 1981, following a hearing

on the issues. Defendant now objects to that order, stating that the DistrictCourt improperly failed to consider whether the absolute liability resulting from defendant's violation of the section,was the proximate cause of plaintiff's injuries. In McGee v. Burlington Northern, Inc. (1977),174Mont. 466, 476, 571P.2d 784, 790, we held: 

### "

# . . .recovery for a FSAA violation is predicated upon a showing of: 

### (1)A violation of theAct, and (2) injury proximately caused thereby." The order granting summary judgment pertains solely to part (I), Burlington Northern's violation of 45 U.S.C. S23 and the attendant absolute liability imposed. It is affirmed. It remained a function of the jury to determine whether thatviolation proximately caused plaintiff's injuries. The jury was so instructed. Jury InstructionsNos. 8, 9,and 10,adequately define "proximate cause" and clearly limit any award of damages to damages for injuries proximately caused by the March 25, 1978,accident. The DistrictCourt issued a pretrial order January 5, 1982,which, among other things,granted plaintiff's motion in limine to exclude evidence relating to plaintiff's previous settlementof claims with Burlington Northern. plaintiff contends such evidence is irrelevant to the issue before thejury. Defendant contends that since the jury heard evidence regarding those previous injuries, it should also know of the settlement of the claims resulting from those injuries. Rule 401,Mont.R.Evid., provides in part: "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the actionmoreprobable or less probable than itwould be without the evidence." Rule 403,Mont.R.Evid., provides: "Althoughrelevant,evidencemay be excluded if itsprobative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,or by considerationsof undue delay, waste of time, or needless presentation of cumulative evidence." Here the prior settlements would show a preexisting condition. However, the fact of a preexisting conditionwas conceded by plaintiff. Compromise settlements forprevious injuries do not necessarily reflect the seriousness of the injury and may confuse the jury. Here the trial court found that any probativevaluewas outweighed by possible prejudice. The trial court's discretion should not be disturbed. Cech

v. State of Montana (1979), Mont. 

## , 604 P.2d 97, 36

Next, defendant objects to two instructions given to the jury at the close of the trial. InstructionNo. 17 states: "Where a pre-existing condition exists which has been aggravated by the accident, it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. But if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability." Defendant contends that the last sentence in this instruction is an incorrect statement of law. Although this question has not previously been before this Court,we find analogouscase law persuasive. InAzure v. City of Billings (1979),182 Mont. 234, 596 P.2d 460,we stated: 

# ".



# . .to impose upon the plaintiff the sometimes impossibleburden of proving which tortious act did which harm,would be an expression of a judicialpolicy that it is better that a plaintiff, injured through no fault of his own, should take nothing simply because he could notprove which tortious act caused which harm. We believe on the other hand, thatwhere the tortious act is established, it isbetter that the tortfeasor should be subject to paying more than his theoretical share of the damages in a situationwhere the tortious conducthas contributed to the confused situation making it difficult to prove which tortious act did the harm." 596 P.2d at 470-471. Azure involved two tortfeasors. However, the same rationale applies in this case. Plaintiff's injuries are the result of three different accidents over a span of twenty-fouryears. Plaintiff should not go uncompensated should the evidence notpermit an apportionment of injuries and damages. See also Restatement of Torts, Second, Section 461 (commenta), p. 502. The giving of Jury ~nstruction No. 17 is affirmed. Defendant objects to InstructionNo. 18which states: "You are instructed that the defendant is liable to the plaintiff for the results ofmedical treatment even where such treatment is itself negligent, so long as the plaintiff exercised reasonable care in his selection of a physician.I' This instruction is clearly a correct statement of law. See Restatement of Torts, Second, Section 457 (commenta), p.

Defendant objects to the instructionbecause the negligence of plaintiff's doctors is not an issue. However, the jury

was instructed at the start of the trial that: "You are permitted to draw from facts which you find have been provedsuch reasonable inferences as seem justified in the light of your experience." Transcript of proceedings,p. 111. 

### he jury was then told of seven unsuccessful operations and informed that the four rhizotomies resulted in a total inability of plaintiff to use his left leg. Fromthose facts, the jurymight infer negligence on the part of the doctors. 

### A reasonable question to arise from that inference is "towhat extent is the defendant liable for the results of the negligent treatment?" InstructionNo. 18 is proper under these facts. Following the jury verdict forplaintiff, defendant moved for a new trial, alleging the verdictwas marked by passion and prejudice. Defendant specifically complains of the $715,000.00 portion of the verdict awarded for pain, suffering and loss of established course of life. The record showsplaintiff's life largely consists of experiencing intractablepain. Plaintiff cannotparticipate in the outdoor activities which he loved. He can no longer be an active, productive member of his family. Nor is he able to enjoy a physical relationship with his wife. Defendant's claims investigator, William J. Burke, stated in his deposition that in his opinion,Mr. Callihan sufferedmore than any other claimantwith whom Mr. Burke had come in contact during his thirty-four year career as a claims investigator. Pain can constitute the most devastating loss suffered by an injured person; Greatest happiness is found in sharing family love, knowing and feeling the beauty of nature, and in laughter,quiet reflection, and experiencing inner peace. When pain destroys these richest of life's treasurers, the quality of life has been significantly diminished. The evidence here supports the award made.On cross-appeal, plaintiff requests we award prejudgment interest atthe rateof ten percent per annum torun from the dateof plaintiff's injury, March 25, 1978. Although 

### we

arewellaware of thepolicy reasons for an award of prejudgment interest, plaintiff's request is denied. Section 27-1-211, MCA, states inrelevant part: "27-1-211. Right tointerest. Every person who isentitled torecover damages certain or capable of being made certainby calculation and the righttorecover which isvested inhim upon a particular day is entitled alsotorecover interest thereon from that day. 

# .

# ." This statuteallows interestonly from the date of judgment, as that is the day the damages arecapable of being made certain. Ryan v. Ford Motor Co. (D.C. Mont. 1971), 334 F.Supp. 674; Wyant v. Dunn (1962), 140Mont. 181, 368 P.2d

The issues presented on appeal arenot frivolous. Plaintiff's request forRule 32 sanctions is denied. The judgment of the District Court is affirmed and plaintiff's requests denied.