NO. 82-324 INTHE SUPREllE COURT OF THE STATE OF MOPJTAPJA 1983

RITA DERENBURGER, Guardian Ad Litem of RAYMOND DEMNBURGER, a minor, Plaintiff and Respondent,

IIURBERT JOHN LUTEY, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThird Judicial District, In and forthe County of Deer Lodge, The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD: For Appellant: Lyrnan II. Eennett, 111, argued, Bozeman, P.lontana

For Respondent: Poore, Roth & Robinson, Butte, Montana Rick Anderson & Urban Roth argued, Butte

Submitted: March 24, 1983 Decided: November 17, 1983

Filed: 

## NOV11

## 7983

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Appellant Hurbert Lutey appeals a Deer Lodge County jury verdict awarding Raymond Derenberger, respondent, $110,000 in damages he suffered in an automobi-leaccident. Respondentwas ridingas apassenger inhis ownvehiclewhich the appellantwas driving. We reverseand remand. On November 5, 1979, Ray Derenberger, Hurb Lutey and their girlfriendswent to amovie inAnaconda. They drove in Ray's vehicle. Prior to and during themovie, Ray, Hurb and

one of the girls consumed approximately eighteen beers. At about 10:OO p.m., before the movie was over, Ray and Hurb left the theater to purchase more beer. Initially, Ray drove; however,upon Hurb's request,he relinquished control of the vehicle to Hurb. Therewas testimony indicating that Ray told Hurb to "see what it [the car] would do." Hurb testified that theywere going quite fast through town. The vehicle was traveling down Park Street, through a 25 m.p.h. zone, at approximately 55 to 60 miles per hour. The car crossed some railroad tracks that were laid on a grade higher than Park Street, causing the car to raise somewhat,possibly even leave the ground. Hurb lost control of the vehicle,and it struck a house on 1100 East Park. At the time of the accident, the road was drv and the record indicates that the carwas in good condition. As a result of the accident, Ray suffered a severe brain concussion which caused organic brain damage, broken facialbones, abroken arm, a broken leg and several scrapes and lacerations. Hurb pleaded guilty to driving while intoxicated andwas fined $300. At the time of the accident Raywas sixteenyersold and Hurbwasnineteen.Ray'smother brought an action for Ray ashis guardian ad litem. She alleged that Hurb's reckless, gross,willful and wanton negligence in driving the vehicle caused Ray's in juries. At trial, Ray's lawyer introduced evidence that Hurb had pleaded guilty to two separate charges of "endangering the welfare of children" by supplying themwith intoxicating beverages. Hurb's counsel made amotior in limine toprevent - admission of this evidence on the grounds of irrelevanceand prejudice. In response to themotion, Ray's counsel stated: "YourHonor,we are asking forpunitive damages in this case. The two incidents I wish to put in evidence throuqh cross-examination if he admits independently that the Defendant one month earlier had been arrested for buying intoxicating beverages for an underage girl, some 16 years of age, and in an automobile. Heplead guilty to that offense and was fined $75.00. Approximately one month after this accident, when obviously he purchased intoxicating beverages for a minor, he again was charged with, convicted and plead guilty to the same offense. 1: submit to the Court that under the criteria which relate to and the material facts which relate to the issue of punitive damages, that the actions of the Defendant on both the occasion in question and like conduct are close enough in time to show in effect a total disregard for the type of conduct he engaged in that eveninq, i.e., purchasing intoxicating beverages for a minor, is relevant on that issue as going to the amount of damages and the willfulness and wantonness of that conduct on that particular evening." Themotionwas denied and the evidencewas admitted. By special verdict the jury found that Hurb was guilty of willful or wanton misconduct. They also found that Ray

was contributorily negligent in the amount of 25 percent. However, the court instructed the jury that if Hurb's misconduct was willful or wanton, ordinary contributorynegligence would not reduce Ray's recovery (InstructionNo. 14). Thus, the jury awarded $100,000 in total damages and $10,000 inpunitive damages. Hurb Luteybrings this appealand raises two issues for our consideration: 1. Was it error for the DistrictCourt to instructthe jury that respondent's recovery should not be reduced by his contributory negligence if the appellant isguilty ofwil-lful or wanton misconduct? 2. Was i.t error for the District Court to allow the admission of evidence regarding the appel-lant'sguilty pleas to charges of supplying liquor tominors? Lutey first argues that the District Court erred by instructing the jury that Derenberger's recoverycould notbe reduced by his own contributory negligence if they found Lutey guilty of willful or wanton misconduct. He contends that the legislative enactment of the comparative negligence doctrine abolished this rule; thus, Derenberger's own contributory negligence should reduce his recovery. Support for this is found in the fact that the harshness of the all-or-nothing rule has been eliminated by comparative negligence. Further, plaintiffs can recover punitive damages, which cannot be reduced by their own negligence. Derenberger asserts that Montana has always distinguished ordinary or gross negligence from willful or wanton misconduct. Hence, the use of the word "negliqence" in the comparative negligence statute indicates that the legislature did not intend a comparison between plaintiff's negligence and defendant's willful misconduct to reduce plaintiff'srecovery.We hold that the comparative negligence statute does not contemplate a comparisonbetween ordinary negligence and. willful orwanton misconduct. The comparative negligence statute mandates that the negligence of the plaintiff does notbar recovery so long as it is not greater than that of the defendant. However,his recovery is reduced by his own contributory negligence. Section 27-1-702,MCA. The statutereads: "Contributory negligence shall not bar recovery in an actionby anyperson or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering." The definition of negligence is found in section 1-1-204(4),MCA,which reads: "'Neglect', 'negligence', 'negligent',and 'negligently' denote a want of the attention to the na.ture or probable consequences of the actor omission thata prudent man would ordinarily give in acting inhis own concerns." On the otherhand, the term "will.fully"has adifferent meaning. It is defined in section 1-1-204(5), MCA: "'Willfully', when applied to the intent with which an act is done or omitted, denotesapurpose ofwillingness to commit the act or make the omission referred to. Itdoes not require any intent to violate the law, to injure another,or to acquire any advantage." Furthermore, section 27-1-701, MCA, separately establishes that one is liable for willful acts as well as negligentacts. The statutereads: "Everyone is responsiblenot only for the results of his willful acts but also for an injury occasioned to amother by his want of ordinary care or skill in themanagement of his property or person except so far as the latterhaswillfully or by want of ordinary care brought the injuryuponhimself." The defense clause of this statute does not change our decision a-s we interpret it to limit a comparison of plaintiff's acts only when defendant has committed acts of a similar kind. When section 27-1-701, MCA, accompanied contributory negligence, this Court held that a plaintiff's ordinary contributory negligence would not bar recovery for injuries from the defends-nt

### 's willful or wanton misconduct. Wollaston

### v. BurlingtonNorthern, Inc. (Mont. 1980), 612P.2d 1277, 37 St.Rep. 1015; Mallory v. Cloud (1975), 167 Mont. 115, 535 P.2d 1270;Mihelich v. Butte Electric Railway Co., et al. (1929), 85 Mont. 604, 281 P. 540. Further, under comparative negligence, this would remain sobecause section 27-1-702,MCA,mandates a comparisonof negligence, which we find is separate and distinct from willful or wanton misconduct. The Nevada Supreme Court interpreted the term "gross negligence" in Nevada's comparative negligence statute in Davies 

### v. Butler (1979), 95 Nev. 763, 602 ~.2d 605. They found that the legislature, by including the term "gross negligence" in the comparativenegligence statute,determined that the concept of gross negligence is comparable to and subject to comparison with ordinary negligence, but left the law unchanged with regard to conduct in which defendant's culpability more closely approaches that of one who intentionally inflicts damage. Under this interpretation,

our statute which only applies to "negligence" would not encompass willful or wanton misconductas gross negligence is

amore aggrava.tedformof negligence.The above statutory construction indicates to us that mere negligence and willful and wanton misconduct are different inkind,rather thandegree. Consequently,we find that the legislature did not intend that they be compared underMontana's comparativenegligence statute. This Court has distinguished the two terms on several occasions. InCashinv. Northern PacificRailway Co. (1934), 96 Mont. 92, 28 P.2d 862,we were to determine whether the evidence of the case provided a basis for exemplary damages. Finding itdid,we concluded that

# ".

. . in this jurisdiction something more than gross negligence must be shown in order to justify such an award; that is, the act must be wanton



# . . . or willful, or warrant the designation of that act as malicious." 96 Mont. at 111, 28 P.2d at 869. Exemplary damages were warranted on the theorv that the act was knowingly done, in reckless disregard of the rights of others. The fact that willful or wanton misconduct establishes a basis for exemplary damages indicates to us that suchmisconduct is distinct from negligence. See also, Hannigan v. Northern Pacific Rv. Co. (1963), 142 Mont. 335, 384P.2d 493. Other jurisdictions have come to a similarconclusion. In a personal injury action the Oregon Supreme Court held that wanton misconduct is different in kind, not merely degree, from ordinary or gross negligence. It further concluded that one guilty of wanton misconduct is subject to liability greater in scope than that which applies to negligent persons, and contributory negligence isno defense. Fallsv. Mortensen (1955), 207Or. 130, 295 P.2d 182. In awrongful death action against theCity of Seattle, the Washington Supreme Court found that willful or wantonmisconduct d.oesnot arise out of negligence and thus is not within the meaning of the term negligence. Adkisson v. City of Seattle (1953), 42 Wash.2d 676, 258 P.2d 461. The Washington court stated: 

# ".

. . Negligence and willfulness imply radically different mental states. Negligence conveys the idea of neglect or inadvertence, as distinguished from premeditation or formed intention. An act into which knowledge of danger and willfulness enter isnotnegligenceof any degree, but is willful misconduct. As long as the element of inadvertence remains in conduct, it is not properly rega.rdedwas willful. Wanton misconduct is positive in nature, while mere negligence is materially negative." 258 P.2d at 465. Prosser distinguishes the two concepts of culpability. In definingwillful,wanton and reckless conduct,he states, 

### "[tlhey have been grouped together as an.aggravated form of negligen.ce,differing - in 2uality rather than degree from ordinary lack of care." W. Prosser,Torts § 34 at 184 (4th 

### --- ~d. 1971). (Emphasisadded.) We find the above authority persuasive and further indication that willful or wanton misconduct isdifferent in kind from negligence. The term negligence in the comparative negligence statutes does not encompass willful or wanton misconduct and in an action based on such conduct the comparative negligence statute is inapplicable and the plaintiff's own contributorynegligence shouldnot reducehis recovery. V. Schwa.rtz,Comparative Negligence, S 5.3 at 107

Prior to the enactment of comparative negligence, Montana clearly followed the rule that contributory negligence of the plaintiff is no bar to his recovery for injuries caused by willful or wanton misconduct of thedefendant. Wollaston v. Burlington Northern, Inc., supra; Mallory v. Cloud, supra; Mihelich v. Butte Electric Railway Co., supra. Since comparative negligencewas established to ameliorate the harshness of the contributory negligence defense, we believe that allowing assertion of the defense under the statute when it would be no defense prior to enactment of comparative negligence would thwart this legislative purpose. Schwartz, supra, S 5.3 at 107. This same rationale prevents reduction of plaintiff's recovery when the defendant's acts arewillful. In awrongful death action the Supreme Court ofWyoming determined that the plaintiff'srecoverywould notbe reduced by his own negligence since the defendant's actions were willful and wanton. Danculovich v. Brown (Wyo. 1979), 593 P.2d 187. The court said: "The conclusion, then, is that S 1-1-109 does not mandate reduction of damages on the basis of comparative negligence of the plaintiff if defendant's misconduct is willful and wanton. To hold otherwise would. be inconsistent with the purpose behind the doctrine of comparative negligence. The doctrine is designed to ameliorate the harshness of the contributory negligence bar. The court decisions which have not applied the contributory negligence bar towillful and wanton misconduct had the same purpose. Damages resulting fromwil-lfuland wanton misconduct are not 

## 'damages for negligence' as that term is used in 5 1-1-109." 593 P.2d at 194. InDaviesv. Butler, supra,theNevada High Court found thata defenda.ntwhose culpability is so close to intentional wrongdoing should not have the benefit of the contributory negligence defense. The court concluded that this rule was unchanged by comparativenegligence. Lutey next contends that the evidence of guilty pleas to contributing to the delinquency of minors is irrelevant.Derenberger asserts that punitive damages can be awarded to punish the appellant for malicious or wrongful acts and malice can be implied from a course of conduct that is known to be harmful or unlawful. Further, in awarding punitive damages, the jury may take into account whether Luteylsacts were of such a nature as to amount to a reckless disregard of the rights of others. Essentially, Lutey should be held to know that his prior criminalactivity was harmful

or unlawful. Thus, the malice necessary to a-wardpunitive damages can be implied. We hold that the evidenceof Luteylsprior guilty pleas is irrelevantwith respectto (1)proving thathismisconduct

on the night of the accident was willful or wanton, and (2) establishing a basis for punitive damages. Consequently,we

reverseand remand the case for further proceedings. It is well settled that all relevant evidence is admissible and irrelevant evidence is inadmissible. Rule 402,M0nt.R.Evi.d. Relevant evidence is definedby Rule 401, Mont.R.Evid. It states: "Relevant evidence means evidence having any tendency tomake the existence of any fact that is of consequence to the determination of the action more probable or less probable than itwould be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant." This Court has adopted the test of relevance stated by the Commissionon Evidence. The test is: 

# ".



# .. whether an item of evidence will have anyvalue, asdeterminedby logic and experience, inproving theproposition for which it is offered. The standardused to measure this acceptable probativevalue is 

### 'any tendency 

### --- tomake the existenceof

### any



# ... more probable or lessprbbable 

### -- __ This it would be without 

## - the evidence.' standard rejects more stringent oneswhich call for evidence to make the fact or proposition for which it is offered more probable than a.nyother. It ismeant to allow wide admissibility of circumstantial. evidence limited only by Rule 403 or other special relevancy rules in Article IV." State v. Fi.tzpatrick (Mont. 1980), 606 P.2d 1343, 1354, 37 St.Rep. 194,207. (Emphasisadded.) Respondent was attempting to prove that appellant was d.rivingthe vehicle recklessly, at a high rate of speed,and that such action was willful and wanton misconduct, and further, that such misconduct was the cause of respondent's injuries. Evidence of appellant's prior criminal activity does not have the tendency to make the existence of defendant's alleged willful a.nd wanton misconduct while driving a vehicle on the night of November 5, 1979,more or less probable. In other words, the issue was not whether appellant was supplying liquor to minors but whether his actions were in wi1.lful and wanton disregard for others. Hence, evidence regarding the defendant supplying alcohol to minors is irrelevant. Punitive damages can be awarded in accordance with section 27-1-221,MCA. The statute reads: "When exemplary d.amagesallowed. In any action for a breach of obligation not arising from contract where the defendant ha.sbeen guilty of oppression, fraud, or malice, actual or presumed, the jury, in addition to the actual damages, may give da.magesforthe sake of exampleand byway ofpunishing thedefendant." In the case at bar we conclude that evidence of appellant's prior guilty pleas was also irrelevant with respect to establishing a basis for punitive damages. The law is clear that to award punitive damages oppression, fraud

or malice must be a.ssociatedwith the act complained of. Here, the act complained of

### was appellant's operation of thevehicle in a reckless fashion. The fact that appellant has purchased alcoholicbeverages forminors is irrelevantto the act complained of and thereby irrelevant to establishing a basis for punitive damages. It did not have a tendency to make any requisite factors forpunitive damages more or less probable. Reversed and remanded foranew trial. 

# VA~$!& ,A@ ChiefJustice

We concur:

JusticesMr. Justice L.C. Gulbrandson, dissenting and specially concurring:

I concur in the holding that it was reversible error to allow admission of evidence regarding appellant's guilty pleas to charges of supplying liquor to minors. 

### I respectfully dissent from the holding that respondent's recovery should not be reduced by his contributory negligence, if appellant is guilty of willful

or wantonmisconduct. InLawrencev. Harvey (Mont. 1980), 607P.2d 551,556, 37 St.Rep. 370,374, this Court stated: "Montana follows the rule of statutory construction that where a statute is adopted form a sister state, it is ordinarily presumed that the legislature borrows the construction placed upon it by the highest court of the state from which it is borrowed, although such construction is not binding upon this Court. Continental Oil Co. 

### v. Board of LaborAppeals (1978),Mont., 582 P.2d 1236, 1240, 35 St.Rep. 1153, 1156; J.T. Miller Co. v. Made1 (1978), Mont., 575P.2d 1321, 1322, 35 St.Rep. 263, 265; State v. Murphy (1977), Mont., 570 P.2d 1103, 1105, 34 St.Rep.1174, 1177; State ex rel. Mankin v. Wilson (1977), Mont., 569 P.2d 922, 924, 34 St.Rep. 1075, 1078 

## ***"
The Supreme Court of the State of Wisconsin, the sister state from whom the Montana legislature borrowed the exact language of the comparative negligence statute, has confronted the precise issue that is now before this Court. In Bielski

### v. Schulze, (1962), 16 Wis.2d 1, 114 N.W.2d 105 111-113, the Supreme Court of Wisconsin analyzed this issue

as follows: "The history of the development of gross negligence, its reason for existing, the content of the concept, andthe inequitable results and consequences of its application have led us todecide the doctrine of gross negligence, as we know it, should be interred in the limbo of jurisprudence along side the doctrine of assumption of risk in negligence cases. SeeMcConvillev. StateFarm Mut. Automobile Ins. Co. (1962), 15 Wis.2d 374, 113N.W.2d 14. Gross negligence is an anomaly and contradiction in terms, and apparently considered in terms of degree rather than kind of negligence in our early cases. It gradually waxed strong infleshand spiriton such terms as 'such a degree of rashness or wantonness which evinced a total want of care,' ora 'willingnesstoharm although such harm may not have been intended,' 'rashly,' 'recklessly,' and 'wantonly,' 'little less than an intentional wrong,

## ' 'willingness toperpetrate injury' or 'a purpose to take known chances of perpetrating an injury. Gradually, gross negligence acquired by metamorphosis a new nature:--Ordinary negligence lay in the field of inadvertence but gross negligence in the field of actual or constructive intent to injure, and the two didnot grade into each other. When the drinking cases increased in number, wereached thepoint thattheconcurrence of causal ordinary negligence and intoxication, as a matter of law, was grossnegligence. "One of the main reasons for the growth of the doctrine of gross negligence was to ameliorate the hardships of the common law doctrine of contrubutory negligence which barred recovery from a tortfeasor to one negligently causing, however slightly, his own injury. However, gross negligence being defined as different in kind and not in degree, could not be compared to ordinary negligence and, hence, contributorynegligencewas no bar torecovery.

"The doctrineof grossnegligence as a vehicle of social policy no longer fulfills a purpose in comparative negligence. Much or what constituted gross negligence .will be found to constitute a high percentage of ordinary negligence causing theharm. Obviously, we are stressing the basic goal of the law of negligence, the equitabledistribution of the loss in relation to the respective contribution of the faults causing it." In Li

### v. Yellow CabCompany of California (1975), 13 Cal.3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal.Rptr. 858, 873,the Supreme Court of California addressed the issues as follows: "Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. In jurisdictions following the 'all-or-nothing' rule, contributory negligence is no defense to an action based upon a claim of willful misconduct

(seeRest.2d Torts, Section 503; Prosser, Torts, supra, Section 65, p. 426), and this is the present rule in California. (Williams v. Carr (1968) 68 Cal.2d 

### 579, 583, 68Cal.Rptr. 305, 440 P.2d 505.) As Dean Prosser has observed, 

## '[this] is in reality a rule of comparative faultwhich is being applied, and the court is refusing to set up the lesser fault against the greater.' (Prosser, Torts, supra, Section 65,p. 426.) The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order, and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct. It has been persuasively argued, however, that the loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct aswell as ordinary negligence would be slight,and that a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. (Schwartz, supra, Section 5.3, p. 108.) The law of punitive damages remains a separate consideration. (See Schwartz, supra, Section 5.4 pp. 109-111.)" Subsequent to the California Supreme Court's decision in Li v. Yellow Cab Company of California, supra, the California Court of Appeals, Fifth District, expanded uponsaid decision in Sorensonv. Allred (1980), 112 Cal.App.3d 717, 725-26, 169Cal.Rptr. 441, 446,as follows: "In summary, we conclude that no defensible reason exists for categorizing willful and wanton misconduct as a different kind of negligence not suitable for comparison with any other kind of negligence. The adoption of comparative negligence inLi rendered such a separate category unnecessary since contibutory negligence on the part of the plaintiff was no longer a total bar to recovery for a tortious injury. We apply an old axiom, 'when the need for a rule ceases, the rule ceases.'

"The important by-product of the abolition of shades of negligence or other categorizations of fault would be the streamlining of the trial of cases. The submission to the triers of fact, particularly juries, of issues of liability upon the simply stated question, 'Whose fault was it, and if both are at fault, what are the degrees of fault of each' places the issues in a context more readily understood. The greater the elimination of such 'buzz' words as willful misconduct, last clear chance, [assumption of the risk], etc., themore the focuswill be upon the real issues as we have noted above. The elimination of willful misconduct as a bar to recovery offers justice to both plaintiffs and defendants in situations where it now is all or nothing. Witness Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d 398, 143 Ca1.Rptr. 13, 572 P.2d 1155, where plaintiff would be the beneficiary of the elimination ofwillful misconduct asa totalbar to recovery. "For the reasons discussed, we conclude that the doctrine of comparitive negligence should apply where either party's conduct is of the type traditionally described as willful and wanton. 

## * ** " The Court of Appeals, Second District, in Southern Pac. Transp. Co. 

### v. State (1981), 115 Cal.App.3d 116, 121, 171Cal.Rptr. 187, 191concurred with Sorenson,supra:"The second unresolved issue in Li, the 

### - role of willful misconduct under comparative negligence, was recently addressed by the Court of Appeal in the Fifth District, which concluded that willful misconduct does not preclude application of the comparative-negligence rule. (Sorenson v. Allred (1980) 112 Cal.App.3d 717, 169 Cal.Rptr. 441.) In reaching its conclusion, the court noted that the contributory-negligence rule and the willful-misconduct rule together amount to a rule of comparative fault under which the lesser fault doesnot bar the greater. The court said that no defensible reason exists for categorizing willful misconduct as a kind of negligence not comparable with any other kind of negligence, and it concluded that the adoption of a rule of comparative negligence rendered superfluous the separate category of negligence described as willful misconduct. (p. 725, 169 Cal.Rptr. 441.) "We agree with the Court of Appeal's reasoning that the need for a separate category of negligence identified as willful misconduct, which was designed to alleviate the inequity of the all-or-nothing contributory negligence rule, has disappeared with the adoption of a rule of comparativenegligence. The concept of willful misconduct remains viable only for an intentional injury which justifies punitive damages. Unless a defendant has intentionally injured a plaintiff, he is entitled to a reduction in his liability to the plaintiff to the extent plaintiff's own negligence has contributed to the injury

# . ...Under the comparative negligence dispensation, every party remains liable for his proportionate shareof fault,whether his conduct is described as simple negligence or as willful misconduct. (See Li v. Yellow Cab, supra,13Cal.3d, p. 829, 119 Cal.Rptr. 858, 532 P.2d 1226; American Motorcycle Association v. Superior Court, supra, 20 Cal.3d p. 588, 146 Cal.Rptr. 182, 578P.2d 899.) This Court has ruled that punitive damages cannot be reduced by the percentage of plaintiff's contributory negligence. In Shahrokhfarv. State Farm Mutual Automobile Insurance Company (Mont. 1981), 634 P.2d 653, 658-59, 38St.Rep. 1669,1675, this Courtheld:

"Thiscourthas not previously ruled on the question of whether punitive damages can be reduced by the percentage of plaintiff's contributory negligence. Since the purpose of punitive damages is to punish the defendant and not to compensate the plaintiff, we find that such an award bears no reasonable relationship to the plaintiff's conduct. Therefore, we hold that punitive damages cannot be reduced by the percentage of plaintiff's contributory negligence. This holding is supported by other jurisdictions. Amoco Pipeline Co. v. Montgomery (W.D.Ok1. 1980), 487 F.Supp. 1268; Tampa Electric Co. v. Stone & Webster Engineering Corp. (M.D. Fla., Tampa Div., 1973), 367F.Supp. 27." The jury in this case awarded punitive damages in the sum of $100,000, in addition to compensatory damages. The holding that the compensatorydamage award may not be reduced by the percentage of plaintiff's negligence appears inequitable to me. If the defendant's conduct is "willful" or "wanton," the percentage of plaintiffs negligence will be determined to be much smaller in comparison, and a reduction in the compensatory award would be in line with the principle of comparative negligence, while leaving an award for punitive damages intact. Such a holding would prevent the plaintiff from profiting by his own negligence, but would preserve the policy of punishing "willful" or "wanton"acts. In view of the majority holding that negligence and willful and wanton misconduct are different in kind, rather than degree, the Montana legislature may wish to resolve this problem, in the light of this Court's past planetary usage of words such as ordinary negligence, gross negligence, willful negligence, wanton misconduct, reckless,heedless andmaliciousnegligence. I would findthattheMontana legislatureintended the apportionment of damages in cases involving acts of negligencewhich fallshortof being intentiona5. ..,'/ _I'Mr. JusticeJohn C. Sheehy,dissenting:

Idissent from the foregoingdecision. The majority returned this case to the District Court for further trial solely upon the grounds that the District Court erred in admitting evidence of prior instances when Lutey supplied minors with drinks, going to the issue of punitive damages. The effect of themajority view here is to adopt a strict rule as to the kinds of evidence that may be admitted to show the character, malice or disposition of a defendantand hiswillfuldisregard for the rights of others. In my opinion, Luteyl s supplying of beer to minors, particularly to Ray Derenberger, was part a-ndparcel of the whole transaction that led to the grievous injuries that Ray Derenberger sustained. On the evening in question here, he had purchased beer with which to ply Ray Derenberger, and undoubtedly Raymond's senses were dulled by this criminal act of Lutey. It is relevant, therefore, in showing his malice and willful disregard for the rights of Derenberger, that he plied minors with liquor a month before the accident or the month after the accident without any showing of remorse by those acts forwhat he had done to Raymond Derenberger. Punitive damagesmay be awarded by the jury against the defendant where he has been quilty of oppression, fraud or malice, suchdamages tobe for the sakeof example and by way of punishing the defendant. Section 27-1-221, MCA. Here, the majority limits the fact issues in this case to whether Lutey was driving the vehicle recklessly, at a high rate of speed and whether that action was willful and wanton misconduct. The majority ignores, however, a concomitant fact issue, that Derenbergerlssenses may have been dulledwhen this sixteen-year-old was unlawfully plied with liquor in such a manner that he did not appreciate the danger of driving with Lutey. Itwas most certainly relevant to this issue that Lutey had acted in the same way on prior and succeeding occasions to show his wanton disregard for any minors that came within his influence. Certainly the jury

was entitled to consider such evidence in determining the punitivedamages. This Court has usua.llyheld that it will leave the admission of evidence to the sound discretion of the trial court subject to review only in cases of manifest abuse. Cech v. State (1979), 183 Mont. 75, 604 P.2d 97; Pierce Packing Company v. John Morrell (9th cir. 1980), 633 F.2d 1362.Iwould affirm the judgment of theDistrictCourt.

c A'



### /

Iconcur with Justice Sheehy's dissent.