No. 80-477 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

MERLE DAHL and MARIE DAHL, husband and wife, Plaintiffs and Respondents,

VS. PETROLEUM GEOPHYSICAL COMPANY, a Corporation licensed todo business inMontana, Defendant and Appellant.

Appeal from: DistrictCourt of the Fifteenth Judicial District, In and for the County of Sheridan. Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Robert J. Emrnons, Great Falls, Montana For Respondents: Otto T. Habedank, Sidney, Montana Richard J.Overby, Plentywood, Montana

Submitted on briefs: June 24, 1981 Decided: ~e~tember 3, 1981 

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### 1981 Filed: -

(1, 1 r 'ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal by Petroleum Geophysical Company from a judgment awarding punitive damages in favor of Merle and Marie Dahl, based on a jury verdict rendered in the Fifteenth Judicial District, Sheridan County. Merle and Marie Dahl (Dahl)sued Petroleum Geophysical Company (PGC)fordamages claimed to have occurred to their farmlands when a seismographhole drilled and "shot"by PGC brought a continuous water flow to the farm surface,which flow PGC failed to plug. The Dahl complaintwas in two counts for actual and punitive damages. The jury, on the submitted issue of comparative (called "contributory" in the instructions) negligence, found PGC 90percent negligent, the Dahls 10 percent negligent and fixed actual damages at $16,500 and punitive damages at $8,500. Judgment was entered on October 30, 1980 against PGC for $14,850 actual damages and the punitive damage figure of $8,500. PGC has appealed only from the punitive damages award. Ithas paid the judgment against it for actual damages, and satisfaction of judgment to that extent has been entered. The six issues in appellant's brief can be stated as two: 1. Is this a contract case forwhich nopunitive damages are allowable? 2. Is the evidence sufficient to justify submission of punitive damages as an issue to the jury and to support the award? We resolve these issues in favor of Dahl and affirm the judgment of the District Court.This casepresents a novel appellate situation. Some of the fact issues upon which PGC relieswere necessarily decided by the jury in arriving at itsverdict for actual damages. Ordinarily on appeal,we review the evidence in the light most favorable to the prevailing party in the DistrictCourt. Holensteinv. Andrews (1975),166Mont. 60, 64, 530 P.2d 476, 478. In the Supreme Court,we do not retry factualdeterminationsmade at trial. No11 v. City of Bozeman (1977), 172Mont. 447, 452, 564 P.2d 1296, 1299. In this case,by satisfying the judgment for actual damages, PGC has acceded to the correctness of the judgment and accepted itsbenefits, particularly including the 10 percent reduction of the actual damages found by the jury. When a judgment ispaid, it passes beyond our review. Gallatin Trust and Savings Bank v. Henke (1969), 154Mont. 170, 177, 461 P.2d 448, 452. All questions of fact decided

or impliedlydecided by the jury underpinning the satisfied judgmentbecome moot. This Court does notpass upon moot questions. State ex rel. Miller v. Murray (1979), Mont. - 

### , 600 P.2d 1174, 1176, 36 St.Rep. 1713, 1715. Even though here, the PGC has preserved its right to review the punitive damage portion of the judgmentby filing a notice of appeal on that part of the judgment,we cannot review disputes which form the basis for the satisfied judgment. To rule otherwisemight place this Court at odds with the underlying grounds of the satisfied judgment,which the appellanthas obviously accepted. The question of whether a contract existed between Dahl and PGC for the drilling of seismographicholes on Dahl's property was submitted to the jury as an issue of fact. The jurywas instructed that every person is bound, withoutcontract, to abstain from injuring the property of another (instructionno. 6); that Merle Dahlwas the agent for his wife Marie Dahl if a contract existed with PGC (instruction

no. 12); that by virtue of a contract, if one existed, the negligence of Merle Dahlwas imputed to Marie Dahl (instruction

no. 13); that a business visitor on thepremises of another is an invitee (instructionno. 16); the essentials of a contract (instructionno. 17); the essentials of an implied contract (instructionno. 18); the necessity of consent to a contract (instructionno. 19);what constitutes acceptance

(instructionno. 20); the object of a contract (instruction

no. 21); the legality of oral contracts (instructionno. 22); and that if a contract existed between Dahl and PGC, the jury could not award punitive damages (instructionno. 27). Instructions from the court to the jury became the law of the case. Under the instructions, the jury awarded punitive damages,which impliedly necessitates the conclusion that no contract existed between Dahl and PGC. By awarding

a reduction in damages because of contributory (comparative) negligence, the jury impliedly found that a tort was involved and not a contract. Inpaying the judgment based on the juryverdict, PGC acceded towhat the jury impliedly found to reach that verdict. Under the instructions, the jury found therewas no contract. Therefore, it is beyond our power as an appellate court to determine now the first issue here,whether a contract existed between Dahl and PGC for seismographicdrilling. Obviously, if we were to reverse the punitive damages award on the ground that a contract existed here, we would be reversing the juryverdict, and negating the basis for the judgment,which has already been

-4-satisfied. We hold therefore, that PGCmay not prevail on the first issue. We look now to the second issue,whether the District Court should have submitted to the jury the issue of punitive damages. Punitive damages (referred to in our statutes as "exemplary damages")are awardable in an action for the breach of an obligation not arising out of contract where the defendant has been guilty of oppression, fraud,ormalice, actual or presumed. Section 27-1-221,MCA. The facts, in the light most favorable to the prevailing party, are that sometimeprior to the drilling,a representative of PGC called Merle Dahl and offered him $25 per hole for a seriesof four or fiveholes to be drilled on Dahl's farm property. Dahl said that he belonged to an association which had set the going price for suchdrilling at $50per hole. The representative said he would call back,which he laterdid. In the second conversation, the representative said that PGC would pay $50per seismographichole. Nothing furtherwas said, and Dahl denied in the trial, that he ever gave specific permission to PGC or any of its representatives to go upon his lands for thepurpose of drilling. Subsequently, a seismographic crew arrived at Dahl's gate with severalvehicles. They asked instructions from Dahl as to how to get across his land to another gate. With respect to drilling, Dahl testified "Iabsolutely told them not to drill down inmy meadow, get the hell out of the meadow, to stay the hell out of there." Notwithstanding this instruction, the seismograph crew drilled a hole in the lowmeadow. At a depth of 120 feet, a union broke on the rotary drill, and at this point the PGC employee noticed thatwater was flowing from thewell. He thereafter continued

-5-drilling until the depth of 200 feet was reached. Twentyfive pounds of dynamitewas inserted into the hole. The hole was "shot." The third day thereafter, a PGC representative noticed that water had started flowing in the drilled hole, but did nothing toward plugging the hole and left for other territory. However, he informed his supervisor that thewell was still flowing. Shortly after the PGC

crew left, another PGCperson came outwith some dry cement and ineffectively tried to plug the hole. Later PGC made a second attempt to stop the running water. The surroundingground was in such condition that the truck could not getwithin 100 feet of the hole. Cementwas pumped into the hole but the attempted plug was ineffectual. Forty-six acres of farmlandwere damaged. Thus, the evidence bears out a questionable permission to do the seismographic drilling, explicit directions from Dahl not to drill in the areawhere thewater commenced to flow, and a subsequent course of neglect in failing to plug thewell ormake other effective efforts to save the farmlands from damage. The District Court denied motions to remove the issue of punitive damages from the jury and submitted the issue under an instructionwhich told the jury that such damages

were awardable if Dahl suffered injuries through gross negligence,wilful orwantonmisconduct, ormalice, and the court defined malice for the purpose of suchdetermination. The jurywas instructed to consider all of the attendant circumstances, including the nature, extent and enormity of the wrong, the intent of the party committing it, the amount of actual damages, and generally all the circumstances attending the particular acts involved, including anymitigating circumstances.Withdrawal of the issue 

### of punitive damages from the jury has the effect of a directed verdict on that issue (thoughno formaldirection to the jury would have been given) and the same rules ought to apply. Thus, an issue should never be withdrawn from the jury unless the conclusions from the facts advanced by the moving party follow necessarily,

as a matter of law, that recovery cannot be had under any view which can be reasonably drawn from the factswhich the evidence tends to establish. Sistok v. Northwestern Tel. Systems, Inc. (1980),

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## , 615 P.2d 176, 178, 37 St.Rep. 1247, 1249 and Thomas v. Merriam (1959), 135Mont. 121, 126, 337 P.2d 604, 606. Any genuine issue of fact should be submitted to a jury unless the evidence is susceptible to but one constructionby reasonablemen, and that in favor of themoving party. Welch v. Nepstad (1959)

## , 135Mont. 65, 73, 337 P.2d 14, 18. We find the evidence adduced here by the plaintiff presented an issue of punitive damages, and that the issue

was properly submitted to the jury. The jury having made itsdetermination that punitive damages were in fact due Dahl, this Court has no basis in law upon which to set that portion of the verdict aside. ~ahl in this appeal asks thatwe issue an order requiring PGC under specific performance to plug the well as required by section 82-1-104,MCA, unless Dahlwaives the statutory requirement. This is an issue not tried in the District Court and not before us on the appeal. The judgment of the DistrictCourt is affirmed.

Justice 

## uWe Concur:

ChisJustice

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