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 ,I ?.Tontana 

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 1981 
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 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) 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 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 

Laumants damages does not of necessity indicate an absence 

thereof and consequently precludes 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. ~iller 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 unpursuasive. 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 automobiles; 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 consider such attendant circumstances as the malice or wantonness 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 consider 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