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

## 16lgr Filed : r~ka: 

### ~'3 

## Kt-(

### Mr. Justice Gene B. Daly delivered the Opinion of the Court. Defendant VirgilFisher appeals from the finaljudgment of the District Court, Flathead County, sittingwith 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, allegedhe was attacked and struckby 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 claimwas stayed pending finaldetermination and appeal of the cause entitled Reliance Insurance Co. v. VirgilFisher, Richard 0. Poeppel and Horace Mann Insurance Lo., 164Mont. 278, 521 P.2d 193. This Court's decision inthat cause released both insurance companies from any duty to defend or topay any damages that might be awarded in the present action. Defendant subsequently filedan answer to plaintiff'

### s amended complaint and a demand forjury trial. Pursuant toRule 

### 16, M.R.Civ.P., the District Court ordered a pretrialconference and the preparation of pretrial orders. On February 

### 17, 1976, the District Court issued itspretrial order presenting, among other things, these issues of fact and law tobe litigated attrial: Issues of Fact. 

### 1. Whether the conduct of defendant was provoked by.the plaintiff

# . 2. Whether plaintiff was beating a child and defendant

came tothe child's rescue. -2-3. Whether the plaintiff threatened defendant and defendant

was acting in self-defense. 

### 4. Whether defendant's attackwas 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 areapplicable in this situation. The District Court then ordered: "IT ISHEREBY ORDERED that this pretrial order shall supersede and supplement the pleadings and govern the course of the trialin this cause, unless modified to prevent manifest injustice. "IT IS FURTHER ORDERED that allpleadings herein shall be amended to conform to this pretrial order." The matter was triedbefore the District Court on April 12, 1976. On April 14, 1976, thejury returned 

### itsverdict 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 inpertinent part: 

# "*** Further provided, that whenever such employee shall receive an injurywhile performing the duties of his employment and such injury or injuries, so received by such employee, are caused by the intentional and malicious act oromission of a servant or employee of his employer, then such employee, or in case of his death, hisheirs orpersonal representatives, shall inaddition to the right to receive compensation under theWorkmen's Compensation Act, have a right to prosecute any cause of actionhe may have for damagesagainst such servants or employees of his employer, causing such injury. In the event said employee shallprosecute an action for damages for or on account of such injuries so received, he shallnot be deprived of his right toreceive compensation but such compensation shallbe received by him in addition to and independent of his right tobring action for such damages

# *

# * *.I' Plaintiff filed a memorandum inopposition to defendant's motion forentry of judgment contending that defendant's posttrialmotion forjudgment notwithstandtng the verdict,l should be denied since itwas based upon an affirmative defense, injury by a fellow servant, which was never plead nor proved attrial. Plaintiff further fileda 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 filinghismemorandum of costs and disbursements. The District Court denied allpost-trial motions and judgment

on the verdict was filedJune 22, 1976. Notice of entry of judgment was filedJune 24, 1976. Defendant deposited a sum of money in the amount of judgment with the clerkof 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 arepresented 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 thejury 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 substantialorreasonable grounds, thereby entitlingplaintiff torecover damages pursuant toRule 32, M.R.App.Civ.P.?In resolving the first issue, defendant contends the jury's failure toaward exemplary or punitive damages toplaintiff 

### 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, thejury's failure to award exemplary or punitive damages 

### isnot a bar to the award of actual or compensatory damages. Exemplary or punitive damages areawarded atthe discretion of the jury, even though fraud ormalice 

### is shown, and

arenot recoverable as a matter of right. The sufficiency of the plaintiff's allegationand cause of action 

### is determined independent of plaintiff's claim for exemplary orpunitive damages. Spackman

v. Ralph M. Parsons Co., 147Mont. 500, 414 P.2d 918 (1966); Gilham v. Devereaux, 67 Mont. 75, 214 P. 606 (1923), reversed in part inFauver v. Wilkoske, 123Mont. 228, 239, 211 P.2d 420 (1949); 22 

### Am Jur 2d, Damages 

### $5 240,241. Therefore, thejury's failure toaward exemplary orpunitive 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 inlaw 

### is implied where defendant's conduct 

### is unjustifiable. Fauver v. Wilkoske, 123Mont. 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, 173P. 419 (1918). The jury's finding in favor of plaintiff and assessing damages atthe sum of $5,000 is equivalent to a finding that defendant committed the alleged assault and battery, absentjustifiable excuse, privilege ordefense. Such an assault and battery 

### is an intentional, unjustified act and malice inlaw 

### is implied. Thejury's failure toaward exemplary orpunitive damages only implies that the act complained of was not found tobe in the spirit of mischief or criminal indifference to civil obligations, but an intentional, unlawful, injurious act was thebasis for thejury'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 inwhose favorjudgment 

### is rendered, and who claims his costs, must deliver to the clerk, and serveupon the adverse party, within five days after the verdict or notice of the decision of the court or referee or, if the entry of thejudgment on the verdict or decisionbe stayed, then before such entry 

### ismade, a memorandum of the items of his costs and necessary disbursements inthe action orproceeding, which memorandum must be verifiedby the oath of the party, or his attorney or agent, orby the clerk of his attorney, stating that to thebest of hisknowledge and belief the items arecorrect, and that the disbursenents have been necessarily incurred inthe action orproceeding. A party dissatisfiedwith the costs claimed may, within five days afternotice of filing of the billof costs, fileand serve a notice of a motion tohave the same taxed by the court inwhich thejudgment was rendered, orby thejudge thereof atchambers." Here, thejury verdict forplaintiff was announced and filed on April 14, 1976. On April 

### 20, 1976, defendant filed hismotion 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 allpost-trial motions. On May 6, 1976, defendant filed his objections and motion to strikememorandum of costs with supporting brief. The District Court denied defendant's motion to strikeplaintiff's memorandum of costs and disbursements

on June 21, 1976. On June 22, 1976, judgment on thejury verdict

was filed and notice of entry of judgment was filed on June 24,This Court has held that the fiveday period allowed for filingof a memorandum of costs and disbursements 

### "is computed from the day the court entersjudgment, not from the day the court orally announces 

### itsdecision." Davis v. Trobough, 139Mont. 322, 326, 363 P.2d 727 (1961). The District Court's ruling on post-trkal'motions delayed entry of judgment untilJune 24, 1976. Plaintiff filedhismemorandum of costs and disbursements prior to entry of judgment, on April 26, 1976, and such filingwas timely. Defendant's third issue 

### isplaintiff's claim for damages inaccord with Rule 32, M.R.App.Civ.P. We failto find subthat stantial evidencelthis appeal was taken without substantial or reasonable grounds or only forpurposes of delay. Therefore, damages under Rule 32, M.R.App.Civ.P., are denied. The judgment the DistrictCourt 

### isaffirmed.



### /Justice We Concur: A

Chief Justice



### I Justices.