No. 13461 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

RICHARD 0. POEPPEL, 

Plaintiff and Respondent, 

-vsVIRGIL FISHER, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial 

District, 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn and Phillips, 

Kalispell, Montana 

James I. Heckathorn argued, Kalispell, Montana 

For Respondent: 

Morrison, Hedman and ~rieweiler, Whitefish, 

Montana 

Terry ~riew~iler argued, Whitefish, Montana 

- 

Submitted: September 28, 1977 

Decided: OEC 16 lgr 

Filed : r~ka: ~'3 Kt-( 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant Virgil Fisher appeals from the final judgment of 

the District Court, Flathead County, sitting with a jury. Plaintiff Richard 0. Poeppel brought this civil action against defendant 

seeking money damages for assault and battery. The jury returned 

a verdict in plaintiff's favor, awarding $5,000 damages. 

This cause of action arises out of an altercation that 

occurred on April 20, 1972, in the Central School, Whitefish, 

Montana. Plaintiff, a school teacher, alleged he was attacked 

and struck by defendant, a fellow school teacher, after plaintiff 

had physically ejected a student from his classroom. Plaintiff 

filed a timely complaint in the District Court. By stipulation 

of the parties, adjudication of plaintiff's claim was stayed 

pending final determination and appeal of the cause entitled 

Reliance Insurance Co. v. Virgil Fisher, Richard 0. Poeppel and 

Horace Mann Insurance Lo., 164 Mont. 278, 521 P.2d 193. This 

Court's decision in that cause released both insurance companies 

from any duty to defend or to pay any damages that might be 

awarded in the present action. 

Defendant subsequently filed an answer to plaintiff' s amended 

complaint and a demand for jury trial. Pursuant to Rule 16, 

M.R.Civ.P., the District Court ordered a pretrial conference and 

the preparation of pretrial orders. On February 17, 1976, the 

District Court issued its pretrial order presenting, among other 

things, these issues of fact and law to be litigated at trial: 

Issues of Fact. 1. Whether the conduct of defendant was 

provoked by. the plaintiff . 

2. Whether plaintiff was beating a child and defendant 

came to the child's rescue. 

-2- 
3. Whether the plaintiff threatened defendant and defendant 

was acting in self -defense. 

4. Whether defendant's attack was malicious and wanton. 

5. The nature and extent of plaintiff's injuries. 

Issues of Law. 1. The applicability of self-defense or 

the defense of another to the instant case. 

2. Whether punitive damages are applicable in this 

situation. 

The District Court then ordered: 

"IT IS HEREBY ORDERED that this pretrial order shall 

supersede and supplement the pleadings and govern the 

course of the trial in this cause, unless modified to 

prevent manifest injustice. 

"IT IS FURTHER ORDERED that all pleadings herein shall 

be amended to conform to this pretrial order." 

The matter was tried before the District Court on April 12, 

1976. On April 14, 1976, the jury returned its verdict finding 

in favor of plaintiff and assessing plaintiff's damages in the 

amount of $5,000. The jury found plaintiff was not entitled to 

exemplary or punitive damages. Defendant subsequently filed a 

motion for entry of judgment for defendant. Defendant based his 

motion on the contention that plaintiff was not entitled to 

recover from defendant as a matter of law since section 92-204, 

R.C.M. 1947 (subsequently amended and repealed by section 

92-204.1, R.C.M. 1947; approved March 29, 1973; Section 2, Chapter 

493, Laws 1973) provided in pertinent part: 

"* * * Further provided, that whenever such employee 

shall receive an injury while performing the duties 

of his employment and such injury or injuries, so 

received by such employee, are caused by the intentional and malicious act or omission of a servant or 

employee of his employer, then such employee, or in 

case of his death, his heirs or personal representatives, 

shall in addition to the right to receive compensation 

under the Workmen's Compensation Act, have a right to 

prosecute any cause of action he may have for damages 
against such servants or employees of his employer, 

causing such injury. In the event said employee 

shall prosecute an action for damages for or on 

account of such injuries so received, he shall not 

be deprived of his right to receive compensation 

but such compensation shall be received by him in 

addition to and independent of his right to bring 

action for such damages * * *.I' 

Plaintiff filed a memorandum in opposition to defendant's 

motion for entry of judgment contending that defendant's posttrial motion for judgment notwithstandtng the verdict,l should be 

denied since it was based upon an affirmative defense, injury 

by a fellow servant, which was never plead nor proved at trial. 

Plaintiff further filed a post-trial motion and memorandum in 

support of additur. Defendant filed objections and a motion to 

strike plaintiff' s memorandum of costs on the ground plaintiff 

was untimely in filing his memorandum of costs and disbursements. 

The District Court denied all post-trial motions and judgment 

on the verdict was filed June 22, 1976. Notice of entry of 

judgment was filed June 24, 1976. Defendant deposited a sum of 

money in the amount of judgment with the clerk of the District 

Court as supersedeas bond and the District Court entered an 

order staying execution of judgment pending appeal to this Court. 

The following issues are presented for review: 

1. Whether plaintiff may recover actual damages by jury 

verdict in a third party action against a fellow employee for 

assault and battery when the jury was not instructed on the 

provisions of section 92-204, R.C.M. 1947, and did not find the 

tortfeasor acted with malice? 

2. Whether plaintiff must claim his costs within five 

days of a jury verdict? 

3. Whether defendant brought this appeal without substantial or reasonable grounds, thereby entitling plaintiff to recover 

damages pursuant to Rule 32, M.R.App.Civ.P.? 
In resolving the first issue, defendant contends the jury's 

failure to award exemplary or punitive damages to plaintiff is a 

bar to plaintiff's recovery of actual damages since section 92-204, 

R.C.M. 1947, provided plaintiff could recover damass from a 

coemployee causing injury to plaintiff only when such injuries 

were caused by the intentional and malicious act of the coemployee. 

In the instant case, the jury's failure to award exemplary or 

punitive damages is not a bar to the award of actual or compensatory damages. Exemplary or punitive damages are awarded at the 

discretion of the jury, even though fraud or malice is shown, and 

are not recoverable as a matter of right. The sufficiency of the 

plaintiff's allegation and cause of action is determined independent 

of plaintiff's claim for exemplary or punitive damages. Spackman 

v. Ralph M. Parsons Co., 147 Mont. 500, 414 P.2d 918 (1966); 

Gilham v. Devereaux, 67 Mont. 75, 214 P. 606 (1923), reversed in 

part in Fauver v. Wilkoske, 123 Mont. 228, 239, 211 P.2d 420 (1949); 

22 Am Jur 2d, Damages $5 240,241. Therefore, the jury's failure 

to award exemplary or punitive damages in the instant case is 

not equivalent to a finding of no malice. 

Furthermore, it is a well accepted proposition of law 

that malice in law is implied where defendant's conduct is 

unjustifiable. Fauver v. Wilkoske, 123 Mont. 228, 211 P.2d 420 

(1949); Cashin v. Northern Pac. R.Co., 96 Mont. 92, 28 P.2d 862 

(1934); Moelleur v. Moelleur, 55 Mont. 30, 173 P. 419 (1918). 

The jury's finding in favor of plaintiff and assessing damages 

at the sum of $5,000 is equivalent to a finding that defendant 

committed the alleged assault and battery, absent justifiable 

excuse, privilege or defense. Such an assault and battery is an 

intentional, unjustified act and malice in law is implied. The 
jury's failure to award exemplary or punitive damages only 

implies that the act complained of was not found to be in 

the spirit of mischief or criminal indifference to civil 

obligations, but an intentional, unlawful, injurious act was 

the basis for the jury's award of actual or compensatory damages 

plaintiff's favor. 

Defendant's second issue concerns the timeliness of 

plaintiff's submission of a memorandum of costs and disbursements. Section 93-8619, R.C.M. 1947, is controlling: 

"The party in whose favor judgment is rendered, 

and who claims his costs, must deliver to the clerk, 

and serve upon the adverse party, within five days 

after the verdict or notice of the decision of the 

court or referee or, if the entry of the judgment on 

the verdict or decision be stayed, then before such 

entry is made, a memorandum of the items of his costs 

and necessary disbursements in the action or proceeding, 

which memorandum must be verified by the oath of the 

party, or his attorney or agent, or by the clerk of 

his attorney, stating that to the best of his knowledge 

and belief the items are correct, and that the disbursenents have been necessarily incurred in the action 

or proceeding. A party dissatisfied with the costs 

claimed may, within five days after notice of filing of 

the bill of costs, file and serve a notice of a motion 

to have the same taxed by the court in which the judgment 

was rendered, or by the judge thereof at chambers." 

Here, the jury verdict for plaintiff was announced and 

filed on April 14, 1976. On April 20, 1976, defendant filed 

his motion for entry of judgment for defendant. Plaintiff filed 

his memorandum of costs and disbursements, and other post-trial 

motions on April 26, 1976. On May 4, 1976, the District Court 

issued its order denying all post-trial motions. On May 6, 1976, 

defendant filed his objections and motion to strike memorandum 

of costs with supporting brief. The District Court denied defendant's 

motion to strike plaintiff's memorandum of costs and disbursements 

on June 21, 1976. On June 22, 1976, judgment on the jury verdict 

was filed and notice of entry of judgment was filed on June 24, 
This Court has held that the five day period allowed for 

filing of a memorandum of costs and disbursements "is computed 

from the day the court enters judgment, not from the day the 

court orally announces its decision." Davis v. Trobough, 139 Mont. 

322, 326, 363 P.2d 727 (1961). The District Court's ruling on 

post-trkal'motions delayed entry of judgment until June 24, 1976. 

Plaintiff filed his memorandum of costs and disbursements prior 

to entry of judgment, on April 26, 1976, and such filing was 

timely. 

Defendant's third issue is plaintiff's claim for damages 

in accord with Rule 32, M.R.App.Civ.P. We fail to find subthat 

stantial evidencelthis appeal was taken without substantial or 

reasonable grounds or only for purposes of delay. Therefore, 

damages under Rule 32, M.R.App.Civ.P., are denied. 

The j udgmen t the District Court is affirmed. 

/ Justice 

We Concur: 

A 

Chief Justice 

I 

Justices.