No. 94-386

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Robert L. Stephens, Jr., R. L. Stephens, Ltd.,

and Terry L. Seiffert, Attorney at Law,

Billings, Montana

For Respondent:

Earl J. Hanson, Hanson, Roybal, Lee & Todd,

Billings, Montana

Filed:

Submitted on Briefs: November 16, 1995

Decided: January 10, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.

This is an appeal from a judgment based upon a jury verdict in

the Thirteenth Judicial District Court, Yellowstone County, and the

court's rulings on admission of evidence, the granting of a

directed verdict in favor of United Industry, Inc., on punitive

damages, and the denial of Brooks B. Barnes' request for post-trial

relief. We affirm.

We restate the issues as follows:

1 . Did the District Court err in not granting a new trial

for alleged improper statements in final argument where no

objection was made?

2 . Did the District Court err in granting United's motion

for a directed verdict on the issue of punitive damages?

3 . Did the District Court err in not granting a new trial

based on the refusal to admit a photograph exhibit taken nine days

after the accident occurred and a letter from Barnes' attorney to

United written four days after the accident?

4 . Did the District Court err in not granting a new trial

based on the jury's finding that Barnes suffered no future loss of

earning capacity?

5 . Did the District Court err in not granting a new trial

based on the inadvertent failure to instruct on the standard of

care of a bicyclist?

6 . Did the District Court err in denying Barnes' motion for

additur?

2
FACTS

On September 6, 1990, Barnes, then age fifteen, was riding his

bicycle along the sidewalk next to the Transwestern I building in

Billings. The Transwestern I building is an office building owned

by United and was being refurbished at the time of the accident.

Barnes rode his bicycle into a plastic pipe that had been placed on

and across the sidewalk by United's employee to allow for the

watering of the grass. Barnes hit the pipe and fell from his bike

breaking both of his wrists. There was no barricade in place at

the time of the accident.

Barnes has incurred several surgeries to his wrists, including

plastic surgery to correct a resulting deformity in both arms.

Despite his injuries, Barnes graduated with honors from high school

and received a scholarship to Marquette University where he is

pursuing a degree in journalism. He currently attends the

University's communication school and, although he types his own

papers, he is required to rest after forty minutes of typing due to

pain in his wrists. Barnes also testified that the injuries have

limited his routine everyday activities as well as his recreational

activities.

Barnes asked for both compensatory and punitive damages. The

case was tried to a twelve-person jury. At the conclusion of

Barnes' case in chief, the District Court granted a directed

verdict on the issue of punitive damages in favor of United. The

remainder of the case was submitted to the jury and the jury found

Barnes thirty percent negligent and United seventy percent

3
negligent. The jury awarded Barnes $89,641 which the court reduced

to $62.763.

At trial, Barnes offered into evidence two pictures. One was

of the accident scene the day after the accident and the other was

of the accident scene nine days later. The court admitted into

evidence the first picture but refused the second.

During closing arguments, the attorney for United admitted

liability but also referenced the action of third parties that may

have contributed to the accident--the subcontractors who apparently

removed the sidewalk barriers without notifying United.

Before the jury was dismissed, Barnes offered an instruction

on the standard of care that a bicyclist must follow. The District

Court inadvertently did not give the instruction to the jury.

Following trial, Barnes filed a motion for additur to increase

the jury verdict from anywhere between $45,000 to $75,000. The

District Court did not grant the motion for additur.

Barnes filed a motion for new trial citing the above grounds

as well as the jury's refusal to award any damages for future loss

of earning capacity. The District Court denied Barnes' requests

for a new trial.

From the court's denial of post-trial relief, grant of a

directed verdict, refusal of evidence, and the jury's verdict,

Barnes appeals.

ISSUE 1

Did the District Court err when it denied Barnes a new trial

for alleged improper statements in final argument where no

objection was made?
Barnes contends that in its final argument United admitted

liability but then argued that its employees were unaware that the

barricade had been removed. United then made an alleged improper

inference that there was third-party liability of some sort on the

part of the contractor for failing to advise United of the removal

of barricades from the sidewalk. Barnes asserts that a new trial

is warranted where improper statements are made in closing

arguments. See Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d

916. In the District Court's memorandum, Barnes' request for a new

trial was denied because Barnes

did not object to any portion of the final argument

submitted by [United's] counsel. Therefore, assuming

that some portion of [United's] counsel's argument was

improper, [Barnes] waived any objections he may have had

to the content of defense counsel's argument.

In Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204, we

held that failure to make a timely objection to alleged improper

statements of counsel in closing argument constitutes a waiver. A

party looses his right to appeal an alleged err where an objection

to that err was waived. Whiting v. State (1991), 248 Mont 207,

221, 810 P.2d 1177, 1187. The record sets forth no objection to

the content of United's final argument nor any request for

corrective action. We therefore conclude that the District Court

did not&r when it denied Barnes a new trial for alleged improper

statements in final argument where there was no objection to the

statements.

ISSUE 2

Did the District Court err in granting United's motion for a

directed verdict on the issue of punitive damages?

5
At the conclusion of Barnes' case in chief, the District Court

granted United's motion for directed verdict on the issue of

punitive damages. The District Court, however, failed to set forth

any findings as to why it did not allow punitive damages.

Nevertheless, this Court will affirm a district court's grant of a

directed verdict if the court's conclusion is correct regardless of

the reasons given. Riley v. American Honda Motor Co. (1993), 259

Mont. 128, 131, 856 P.2d 196, 198 (citing Laurie v. M. & L. Realty

Corp. (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194). We review

a directed verdict in light of the evidence most favorable to the

party against whom the verdict was directed. LaVelle v. Kenneally

(1974), 165 Mont. 418, 529 P.2d 788.

Barnes claims punitive damages should have been assessed upon

United because of United's malicious acts. Punitive damages may be

awarded when the defendant is found, by clear and convincing

evidence, to be guilty of actual malice. Section 27-l-221(1), (5),

MCA.

A defendant is guilty of actual malice if he has

knowledge of facts or intentionally disregards facts that

create a high probability of injury to the plaintiff and

. . deliberately proceeds to act with indifference to

the high probability of injury to the plaintiff.

Section 27-l-221(2), MCA. Barnes alleges United placed the pipe

over the sidewalk and left it there for a period of two weeks in

wanton and willful indifference to the hazard the pipe created for

pedestrians and bicyclists.

United contends there was no evidence presented that showed

the employee who laid the pipe across the sidewalk acted in

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conscious or blatant disregard of the high probability of injury to

Barnes, or that the employee deliberately proceeded to act in

indifference to the high probability of injury to Barnes. The

employee testified that the barricade was in place when he

initially laid the pipe on the sidewalk and every time he moved the

pipe thereafter. Barnes produced no evidence to the contrary.

In Niles v. Big Sky Eyewear (1989), 236 Mont. 455, 460, 771

P.2d 114, 117, overruled on other grounds by Sacco v. High Country

Independent Press (19951, 896 P.2d 411, 423, 52 St. Rep. 407, 416,

we held punitive damages were not appropriate where the plaintiff

had not presented a prima facie case including clear and convincing

evidence of all elements required under 5 27-l-221, MCA. In order

to render a defendant liable for exemplary damages, plaintiff must

allege and prove something more than mere negligence. Gagnier v.

Curran Const. Co. (1968), 151 Mont. 468, 480, 443 P.2d 894, 901.

In the present case, Barnes did not produce any evidence to

contradict the testimony of United's employee. Accordingly, Barnes

is not entitled to an award of punitive damages. Therefore, we

hold that the District Court did not err in granting United's

motion for a directed verdict on the issue of punitive damages.

ISSUE 3

Did the District Court err in not granting a new trial based

on the refusal to admit a photograph exhibit taken nine days after

the accident occurred and a letter from Barnes' attorney to United

written four days after the accident?

7
At trial, Barnes moved to introduce two photos into evidence.

The first photo was of the accident scene the day after the

accident and the second photo was of the same scene nine days

later. The District Court allowed the first photo into evidence

but did not allow the second because it found the second photo was

not relevant to the conditions at the time of the accident.

The District Court has broad discretion to determine the

admissibility of evidence, and we will not disturb the court's

ruling absent a manifest abuse of discretion. King v. Zimmerman

(1994), 266 Mont. 54, 65, 878 P.2d 895, 902.

In Lindberg v. Leatham Brothers, Inc. (1985), 215 Mont. 11,

24, 693 P.2d 1234, 1243, we held that a district court's exclusion

of evidence was proper where the evidence consisted of a photograph

that "does not tend to prove, disprove, or support any material

fact in the case . Iand is] irrelevant and repetitive." The

second photograph depicted an accident scene nine days after the

accident. The District Court correctly concluded that the

photograph was not relevant to the conditions existing at the time

of the accident.

Barnes also attempted to introduce the photograph as evidence

that United took no action to remove the pipe or replace the

barricade after the accident thus contending that the photograph

was relevant to the issue of punitive damages. In addition, Barnes

offered into evidence a letter his attorney wrote to United four

days after the accident. The letter generally advised United of

the accident. Barnes argued that the letter was evidence of

8
further notice to United of the accident and that United acted

maliciously in not removing the pipe or replacing the barricade

after receiving such notice. The District Court reserved ruling on

the picture and the letter's admissibility for purposes of punitive

damages until after Barnes' case in chief.

In Issue 2, we affirmed the District Court's directed verdict

on the issue of punitive damages. Once a determination is made

that punitive damages are not allowed, evidence pertaining to them

should be excluded. Ryan v. Ald, Inc. (1965), 146 Mont. 299, 303,

406 P.2d 373, 375. Therefore, the District Court properly refused

the photograph exhibit and the letter for purposes of punitive

damages as well.

The decision to grant or deny a new trial is within the sound

discretion of the trial judge and will not be disturbed absent a

showing of manifest abuse of that discretion. Baxter v. Archie

Cochrane Motors, Inc. (Mont. 1995), 895 P.2d 631, 632, 52 St. Rep.

444, 444. We conclude that the District Court properly refused the

photograph exhibit taken nine days after the accident occurred and

the letter Barnes' attorney sent to United. We therefore conclude

that the court did not abuse its discretion in not granting a new

trial.

ISSUE 4

Did the District Court err in not granting a new trial based

on the jury's finding that Barnes suffered no future loss of

earning capacity?

9
Barnes presented several expert witnesses who testified to the

effect the injury had on Barnes' future earnings. United offered

no testimony on this issue, but rather relied upon its crossexamination of Barnes' witnesses. The jury, upon instruction that

it could disregard any testimony from any expert, found Barnes'

injury would not result in future loss of earnings. Barnes claims

on appeal that there was a lack of substantial evidence to support

the jury's findings and that the District Court erred in not

granting a new trial.

W e review a jury's verdict to determine if there is

substantial credible evidence in the record to support it.

Barthule v. Karman (19941, 268 Mont. 477, 485, 886 P.2d 971, 976.

Substantial evidence is "more than a scintilla, but . less than

a preponderance, of evidence." State v. Shodair (Mont. 1995), 902

P.2d 21, 26, 52 St. Rep. 879, 882. We have held that it is not the

function of this Court to agree or disagree with a jury's verdict.

Schulke v. Gemar (1994), 264 Mont. 184, 188, 870 P.2d 1378, 1380.

If conflicting evidence exists, we do not retry a case because the

jury chose to believe one party over another. Simchuk v. Angel

Island Community Assn. (1992), 253 Mont. 221, 229, 833 P.2d 158,

163.

Barnes introduced testimony of expert witnesses as evidence of

his future earning capacity. The credibility and weight to be

given these expert witnesses is within the province of the jury and

not of this Court. See Hagen v. Dow Chemical Co. (1993), 261 Mont.

407, 494, 863 P.Zd 413, 418.

10
Barnes' orthopedic surgeon, Dr. Hansen, testified on behalf of

Barnes that Barnes' injury could inhibit full growth potential of

bones in his wrist and he would therefore be susceptible to further

injury. Dr. Hansen further testified that Barnes' had an estimated

five to fifteen percent permanent impairment of the function in his

wrists. Nevertheless, Dr. Hansen testified during cross-examination

that if surgery was successful Barnes would be physically capable

of performing the duties necessary for a career in journalism.

Barnes also called Dr. Adair, an economic analyst, as an

expert witness. Under direct examination, Dr. Adair testified that

as a result of this injury Barnes' work life will be decreased by

12.9 years, he will incur a 15 percent reduction of productivity,

and he will have to endure a substantial increase in insurance

premiums. During cross-examination, Dr. Adair conceded that Barnes

would not be affected by increased insurance premiums if Barnes is

provided health insurance through his work place. Additionally,

Dr. Adair testified that if Barnes became a successful journalist

and did not require any additional commitment of resources over and

above what any other journalist would require Barnes would not

suffer any loss of earning capacity.

Barnes argues that Brockie v. Omo Construction (1994), 268

Mont. 519, 887 P.2d 167, is controlling in this case. Brockie was

killed in an automobile accident involving a sign owned by Omo

Construction. His estate brought a survivorship action against Omo

Construction. The jury awarded zero dollars in survivorship

damages despite the fact that the evidence and stipulations

11
established funeral and medical expenses and a loss of future

earning capacity for the remainder of Brockie's life expectancy.

This Court, citing Putman v. Pollei (1969), 153 Mont. 406, 457 P.2d

776, and Rudeck v. Wright (1985), 218 Mont. 41, 709 P.2d 621,

reversed the jury verdict and remanded for a new trial on

survivorship damages, finding that the evidence establishing

survivorship damages was either stipulated to or offered without

contradiction.

Brockie, Putman, and Rudeck are clearly distinguishable from

the present case. All of those cases involved survivorship claims

brought by estates where the evidence as to survivorship damages

was uncontested. In this case, although Barnes suffered injuries

to his wrist, he was able to successfully complete high school and

attend college. There was conflicting testimony as to the effect

of this injury on his future earnings and we will not retry the

case because the jury chose to believe one party over another.

Simchuk, 833 P.2d at 163.

In reference to the experts' testimony, the jury was

instructed that it was not bound by the opinion offered and that it

should determine what weight to give the testimony. We conclude

that there was substantial credible evidence in the record to

support the jury's finding that Barnes suffered no future loss of

earning capacity.

A District Court's grant or denial of a motion for a new trial

will not be disturbed absent a showing of a manifest abuse of

discretion. Baxter, 895 P.2d at 632. In the instant case, the

12
District Court showed no abuse of discretion because there was

sufficient evidence to support the jury's verdict. We therefore

conclude that the court did not err in denying Barnes' request for

a new trial.

ISSUE 5

Did the District Court err in not granting a new trial based

on the inadvertent failure to instruct on the standard of care of

a bicyclist?

At trial, Barnes offered Plaintiff's Instruction No. 15 which

was the standard of care for a bicyclist. United did not object to

the instruction and it was accepted by the District Court. In the

recap of the instructions, however, Plaintiff's Instruction No. 15

was not referenced. One of Barnes' attorneys noticed the omission

but did not make an objection or bring the omission to the court's

attention.

Barnes moved the District Court for a new trial based on this

omission. The District Court denied Barnes' motion because Barnes

did not object nor did he request any curative actions, and

therefore, Barnes' objection was untimely. Further, the court held

that even if the objection was timely, the lack of the instruction

did not prejudice Barnes. The court pointed out that the standard

had been referred to in other instructions and that this

instruction was merely a more detailed version of the standard of

care for a bicyclist. We will not disturb a district court's

denial of a motion for new trial absent a showing of manifest abuse

of discretion. Baxter, 895 P.2d at 632.

13
The District Court's omission of the instruction was an

inadvertent act of the court and not a refusal of the instruction.

This omission was an irregularity in the proceedings of the court.

In Franck v. Hudson (1962), 140 Mont. 480, 373 P.2d 951, we stated:

A long line of cases in this state has established the

rule that when a party fails to make a timely objection

to an irregularity in the proceedings of the court . .

then the irregularity is waived.

Franck, 373 P.2d at 953-54 (citing Herren v. Hawks (1961), 139

Mont. 440, 365 P.2d 641). Barnes' counsel disclosed, in an

affidavit to the court, that he became aware of the omission during

the court's reading of the instructions. According to the record,

Barnes did not bring the omission to the court's attention.

Therefore, Barnes waived any objection to the court's omission of

the jury instruction. It follows that the District Court did not

abuse its discretion in denying a new trial.

We hold that the District Court did not err when it denied a

new trial based on the inadvertent failure to instruct on the

standard of care of a bicyclist.

ISSUE 6

Did the District Court err in denying Barnes' motion for

additur?

Barnes moved the District Court for an order granting additur

in the amount of $45,000 to $75,000. The District Court denied

Barnes' motion and stated:

[Barnes'] Motion for Additur has no merit. In Bohrer v.

Clark (1978), 180 Mont. 233, 590 P.2d 117, the Court

expressly held that the trial Court had no authority to

add to a jury's verdict. That case has not been

overruled and represents the law of this State, as of

14
this date. Therefore, this Court, even if it were

sympathetic to [Barnes] argument, could not grant

[Barnes'] Motion for Additur.

Barnes argues that this Court should overturn the rule stated in

Bohrer because it is inconsistent for a court to be allowed to

decrease a jury verdict but not to increase the same.

This Court, in Bohrer, adhered to the reasoning in State

Highway Commission v. Schmidt (19641, 143 Mont. 505, 391 P.2d 692,

where we discussed the issue of a district court's right to

increase a jury verdict. Bohrer, 590 P.2d at 121. A grossly

inadequate verdict should not be permitted to stand. In that

instance, however, both parties are entitled to a new trial whereby

L_,

a jury can properly access liability and damages. To have the

court award increased damages would effectively deny the right to

a trial by jury. In decreasing a jury verdict, the court awards an

amount within the amount awarded by the jury. Accordingly, a

court's decrease of a verdict is founded in law while a jury's

verdict is an award based on the facts. Schmidt, 391 P.2d at 695

(citing Dimick v. Schiedt (1935), 293 U.S. 474, 486, 55 S. Ct. 296,

301, 79 L. Ed. 603).

Barnes contends that since Article II, Section 26, of the

Montana Constitution permits parties to waive their rights to a

jury trial, the rationale of Schmidt is no longer valid. Barnes'

contention is unsound because a party's right to a jury trial is

secured regardless of whether the party chooses to waive that

right. See Mont. Const. art. II, 5 26. The analysis in Schmidt

remains persuasive, and therefore, we affirm the rule stated in

15
Bohrer. We conclude that the District Court correctly interpreted

that rule of law, and therefore, the court did not err in denying

Barnes' motion for additur.

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Justice v

We concur:

16
January 10, 1996

CERTIFICATE OF SERVICE

I hereby certify that the followir lg certified order was sent by United States mail,

following named:

Terry L. Seiffert

Attorney At Law

Box 31181

Billings MT 59107-1181

Robert L. Stephens, Jr.

Attorney At Law

Box 1438

Billings MT 59103-1438

Earl J. Hanson

Hanson, Roybal, Lee & Todd, P.C.

Box 7207

Billings MT 59103-7207

ED SMITH

CLERK OF ~THE SUPREME

STATE OF MONTANA

BY:YG&&Q&J l.__..-. A

prepaid, to the

COURT

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