No. 80-477 

IN THE 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 to do business 

in Montana, 

Defendant and Appellant. 

Appeal from: District Court 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 

S~P ; 1981 Filed: - 

(1, 1 

r 'Clerk 
Mr. 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) for damages claimed to have occurred to their 

farmlands when a seismograph hole drilled and "shot" by PGC 

brought a continuous water flow to the farm surface, which 

flow PGC failed to plug. 

The Dahl complaint was in two counts for actual and 

punitive damages. The jury, on the submitted issue of 

comparative (called "contributory" in the instructions) 

negligence, found PGC 90 percent 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. 

It has 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 for which no punitive 

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 case presents a novel appellate situation. Some 

of the fact issues upon which PGC relies were necessarily 

decided by the jury in arriving at its verdict for actual 

damages. Ordinarily on appeal, we review the evidence in 

the light most favorable to the prevailing party in the 

District Court. Holenstein v. Andrews (1975), 166 Mont. 

60, 64, 530 P.2d 476, 478. In the Supreme Court, we do not 

retry factual determinations made at trial. No11 v. City 

of Bozeman (1977), 172 Mont. 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 its benefits, particularly including the 10 

percent reduction of the actual damages found by the jury. 

When a judgment is paid, it passes beyond our review. 

Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont. 

170, 177, 461 P.2d 448, 452. All questions of fact decided 

or impliedly decided by the jury underpinning the satisfied 

judgment become moot. This Court does not pass 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 judgment by 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 otherwise might place this Court at odds 

with the underlying grounds of the satisfied judgment, which 

the appellant has obviously accepted. 

The question of whether a contract existed between Dahl 

and PGC for the drilling of seismographic holes on Dahl's 

property was submitted to the jury as an issue of fact. The 

jury was instructed that every person is bound, without 
contract, to abstain from injuring the property of another 

(instruction no. 6); that Merle Dahl was 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 Dahl was imputed to Marie Dahl (instruction 

no. 13); that a business visitor on the premises of another 

is an invitee (instruction no. 16); the essentials of a 

contract (instruction no. 17); the essentials of an implied 

contract (instruction no. 18); the necessity of consent to a 

contract (instruction no. 19); what constitutes acceptance 

(instruction no. 20); the object of a contract (instruction 

no. 21); the legality of oral contracts (instruction no. 

22); and that if a contract existed between Dahl and PGC, 

the jury could not award punitive damages (instruction no. 

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. In paying the judgment based on the 

jury verdict, PGC acceded to what the jury impliedly found 

to reach that verdict. Under the instructions, the jury 

found there was 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 

seismographic drilling. Obviously, if we were to reverse 

the punitive damages award on the ground that a contract 

existed here, we would be reversing the jury verdict, and 

negating the basis for the judgment, which has already been 

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satisfied. We hold therefore, that PGC may 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, or malice, actual or 

presumed. Section 27-1-221, MCA. 

The facts, in the light most favorable to the prevailing 

party, are that sometime prior to the drilling, a representative 

of PGC called Merle Dahl and offered him $25 per hole for a 

series of four or five holes to be drilled on Dahl's farm 

property. Dahl said that he belonged to an association 

which had set the going price for such drilling at $50 per 

hole. The representative said he would call back, which he 

later did. In the second conversation, the representative 

said that PGC would pay $50 per seismographic hole. Nothing 

further was 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 the purpose of drilling. 

Subsequently, a seismographic crew arrived at Dahl's 

gate with several vehicles. They asked instructions from 

Dahl as to how to get across his land to another gate. With 

respect to drilling, Dahl testified "I absolutely told them 

not to drill down in my 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 

low meadow. At a depth of 120 feet, a union broke on the 

rotary drill, and at this point the PGC employee noticed 

that water was flowing from the well. He thereafter continued 

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drilling until the depth of 200 feet was reached. Twentyfive pounds of dynamite was 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 the well was still flowing. Shortly after the PGC 

crew left, another PGC person came out with some dry cement 

and ineffectively tried to plug the hole. 

Later PGC made a second attempt to stop the running 

water. The surrounding ground was in such condition that 

the truck could not get within 100 feet of the hole. 

Cement was pumped into the hole but the attempted plug was 

ineffectual. Forty-six acres of farmland were damaged. 

Thus, the evidence bears out a questionable permission 

to do the seismographic drilling, explicit directions from 

Dahl not to drill in the area where the water commenced to 

flow, and a subsequent course of neglect in failing to plug 

the well or make 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 instruction which told the jury that such damages 

were awardable if Dahl suffered injuries through gross 

negligence, wilful or wanton misconduct, or malice, and the 

court defined malice for the purpose of such determination. 

The jury was 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 any mitigating 

circumstances. 
Withdrawal of the issue of punitive damages from the 

jury has the effect of a directed verdict on that issue 

(though no formal direction 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 facts which the 

evidence tends to establish. Sistok v. Northwestern Tel. 

Systems, Inc. (1980), - Mont . - , 615 P.2d 176, 178, 37 

St.Rep. 1247, 1249 and Thomas v. Merriam (1959), 135 Mont. 

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 construction by reasonable men, and that in favor 

of the moving party. Welch v. Nepstad (1959) , 135 Mont. 

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 

its determination 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 that we issue an order requiring 

PGC under specific performance to plug the well as required 

by section 82-1-104, MCA, unless Dahl waives the statutory 

requirement. This is an issue not tried in the District 

Court and not before us on the appeal. 

The judgment of the District Court is affirmed. 

Justice u 
We Concur: 

Chis Justice , " 

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