No. 12206 

### INTHE SUPRENE COURT OF THE STATE OF MONTANA 1972

HUGH R. KELLEHER, Plaintiff and Respondent,



### -vs

# - STATE OF 

### MONTANA & MONTANA AERONAUTICS COMMISSION, Defendants and Appellants.

Appeal from: District Court of the FirstJudicial District, Honorable Victor H. Fall, Judge presiding. Counsel of Record: For Appellant

### : Anderson, Symmes, Forbes, Peete and Brown, Billings, Montana. Weymouth D. Symmes argued, Billings, Montana. Geoffrey L. Brazier, Helena, Montana. 

### For Respondent: Small, Cumins and Hatch, Helena, Montana. Floyd 0. Small argued, Helena, Montana.

Submitted: June 16, 1972Mr, Justice Gene B. Daly delivered the Opinion of the Co~xrt,

This isa personal injury actionbrought by the manager of the Helena City-County Airport against the state of Montana and the Montana Aeronautics Commission for damages resulting from injuries received in an airplane crash, A jury in the district court of the firstjudicial district, county of Lewis and Clark, returned a verdict 

### in favor of plaintiff in the amount of $245,000. Judgment was entered thereon, After denial of their motion for a new trial, defendants appeal the ftnal judgment, Plaintiff was returning from a meeting atLewistown, Montana, which involved him inhis capacity as city-county airport manager, when 

### a Cessna 185 single engine aircraft owned by the Montana Aeronautics Commission and piloted by Charles Lynch, Executive Secretary of the Montana Aeronautics Commission, crashed, Plaintiff alongwith Henry Loble, general counsel for the Commission, was 

### a passenger at the invitation of Lynch because the plane inwhich plaintiff had flown toLewistown was not returning toHelena. Allthree men had been in attendance at a meeting of the Northern Plains AirTransportation Council inLewistown. For the purposes of this appeal, defendants have assumed, in light of the jury's verdict, that the pilot Lynch was negligent inthe operation of the aircraft. It 

### is also agreed that plaintiff was covered by and received maximum workmen's compensation benefits 

## , ashereinafter set forth in our discussion of issue No. 1, Defendants rely on three issues in support of their appeal: 1, That the court erred in striking from defendants' amended answer 

### itsdefense that plaintiff was an employee of the state of Montana, to-wit, manager of the city-county airport inLewis and Clark County. The city-county airport carried workmen's compensation insurance and plaintiff was paid andaccepted it, This was stipulated attrialand should have resulted indismissal of the action. 2. The verdict was so excessive so as to shock the conscience of an ordinarily prudent person. 

### 3, Numerous minor errorswere committed during the course of the trialwhich in themselves would not be sufficient to constituteprejudicial error, but, when combined, would be sufficient toconstitute prejudicial error. Defendants' issueNo, 1concerns their primary defense which they contend bars this action under the ~orkmen'sCompensationAct. They rely specifically on section 92-204, R.C.M, 1947, of that Act which provides inpertienent part: "Where both the employer and employee have elected tocome under this act, the provisions of this act shallbe exclusive, and such election shallbe held tobe a surrender by such employer and the servants, and employees of such employer and such employee, as among

themselves, of their right toany other method, form orkind of compensation, or determination thereof, or to any other compensation, or kind of determination thereof, or cause of action, action atlaw, suit inequity, or statutory or common-law right orremedy, or proceeding whatever, for or on account of any personal injury to or death'of such employee, except as such rights may be hereinafter specifically granted 9~

# *

# *. Provided, that whenever such employee shallreceive an injurywhile performing the duties of his employment and such injury or injuries, so received by such employee, are caused by the act or omission of some persons or corporations other than his employer, or the servants or employees of his employer, then'suchemployee, or incase of his death hisheirs or personal representatives, shall, in addition tothe right toreceive compensation under the Workmen's Compensation Act, have a right toprosecute any cause of action he may have for damages against such

8, *,I' persons or corporations, causing such injury, " (Emphasis supplied) In addition topreserving the common-law right to third party action toemployees, this section alsogives to the employer

or insurance carrier paying the compensation the right of limited subrogation and the additionalright tobring the third party action if the employee fails todo so within sixmonths of his injury. We find no necessity to citecases that interpret the

II intended meaning of the terms employer" and "employee" as usedand defined in sections 92-410 and 92-411, R,C.M, 1947, of the ~orkmen's Compensation Act. It is sufficient to point out that

11 the general accepted definition of the term employed'is a person in serviceunder any appointment or contract of hire, express or implied, oral or written, and considered as "actual" employment. In addition to the general class of employer and employee contemplated originally by the Workmen's Compensation Act, as noted above, the legislatures of the various states, including Montana, have by statute extended coverage under workmen's compensation to certain specific classes of employees who are not

II

actual employees" within the original definition discussed above, that is, they have no direct contract of employment, However, this coverage isusually extended toprotect the employees of irresponsible and uninsured subcontractors or independent contractors. An equal basic purpose of the Act istomake the remedies provided exclusive under the Act and to insulate the employer, liable for compensation payment, immune from third party actions by the employee, Montana has done this in cases of statutory employers, some stateshave not, Sections 92-438, 92-604, R.C.M. 1947. 

### arson's workmen's Compensation Law, 

### V. lA, Ch. 

### 9, 

### 9 49.11, pp, 855-858, explains the rationale of this statutory extension of coverage:

I1

The purpose of this legislationwas toprotect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumable responsible principal contractor, who has it within his power, inchoosing subcontractors, topass upon their responsibility and insistupon appropriate compensation protection for their workers. This being the rationale of the rule, in the increasingly common situation displaying a hierarchy of principal contractors upon subcontractors upon sub-subcontractors, if any employee of the lowest subcontractor on the totem pole is injured, there i-sno practical reason for rezching up the hierarchy any further than the first insured contractor. 

# ** * he statute also aims to forestall evasion of the act by those who might be tempted to subdivide their regular operations among subcontractors, thus escapingdirect employment relations with the workers and relegating them for compensation protection to small contractorswho fail to carry (and, if small enough, may not even be required tocarry) compensation insurance. l1 (Emphasis supplied). It isimportant inthe analysis of this problem torecognize that the rationale of the statutory employer-employee extension by the legislature isfor thebenefit of the employee and that such a benefit conferring a liability on the employer iscoexistentwith immunity from common-law liability. In the instant case it isclear that Charles Lynch, the negligent pilot, was an actual employee of the state of Montana and itsaeronautics commission under the accepted definition heretofore discussed. It isequally clear that plaintiff under 

### a contract of employment with the city-county airport isnot an "actual" employee of the state of Montana under the accepted definitions. It does not appear that defendants contend plaintiff is an "actual" employee the same as the pilot; but, in a rather unusual multipronged approach, seem tocontend that plaintiff falls

II into the position sf a statutory employee1;of the state of Montana or the state is

### a "statutory employer'bf plaintiff, although defendants never quite get to the terminology of statutory employer or employee, Defendants seem tocontend "that the plaintiff, asmanager of the city-county airport located near Helena, was a servant of an agency created by the State of Montana carrying out itsgovernmental function. II (Emphasis supplied), In another statement defendants contend that "the Cj-tyCounty Airport Commission 

### was 

### a sub-division of the State of Montane, and as such, the State of Montana and 

### itsMontana Aeronautics Commission were the actual employers of the plaintiff 

# ** ;?. 

## " (Emphasi-s supplied), Even with the one isolated reference to "actual" employment, the totality of defendants' language

11 does not seem tourge actual employment" asused intheAct.There isno law i-n this state nor isany cited by defendants from other jurisdictions, that creates statutory employment by 

### *n act of the legislature establishing an agency or commission, such as an airport commission, nor do the statutes cited giving the StateAeronautics Commission regulatory control over airport operation, create this legal. fiction, As discussed earlier, these creations must be found within the Act and the extinguishing of the common-law rights should be strictlyconstrued. Madison v. Pierce, 156 Mont, 209, 217, 478 P.2d 860. 

### In fact, section 92-410, R.C.M. 1947, citedby defendants

It and which defines employer", specifi-callypermits thc "state and each county, city and county, city school district, irrigation district, allother districts established by law and all public corporations and quasi-public corporations and public agencies therein

# ** *I1 tobe separate employers under the Act, Lacking statutory or case authority to establish an employeeemployer relationship, defendant$position cannot be sustained. Defendants' issue No. 

### 2 questions the amount of theverdict contending that such verdict was excessive and should be set aside, a new trialgranted, or atthe very least, the verdict should be substantially reduced. Defendants maintain plaintiff had preexisting disabilities which "prevented him from doing manual labor long before the aircraft accident with which we are concerned in this case". They also argue plaintiff "has recovered from allthe injuries sufferedby him except continuing discomfort of hisback on occasions. 11 On reading the entirerecord, including the testimony of lcwo docfors, pl.aintifflscoemployees, and plaintiff, we find: Plaintiff attime of trialwas 

### 44 years of age, married with three children aged 22, 15 and 11. He had a high school education and 

### a lifeexpectancy of 28.67 years. More than 25

vears ago, at approximately age 16, plaintiff felldown an -levator shaft and injured his right leg, From that accident,he developed osteomyelitis inthe leg, had several surgical operations and was leftwith "a fair amount of residuals in the leg." The net effect of that accident was a stiff knee, his right legwas shortened approximately one inch, and he walked with a limp. However, prior to trial af this action plaintiff had been free of any symptoms of osteomyelitis for



### a period of more than 13years and had no compl.aints concerning his leg throughout that time. Plaintiff's employment record reveals he startedworking for the cityof Helena after graduation fromhigh school as a general laborer atvarious jobs including thewater department, lighting department, and street department. Such work consisted of pick and shovelwork, laying cable, and handling heavy equipment, He worked eight hours per day, sixdays per week and had

no difficultydoing the work, Idhen plaintiff went towork for the city-county airport, he worked as general maintenance man plowing runways, mowing weeds,and other things connected with the general maintenance, He was promoted tothe position of manager of the city-county airport which work was primarily administrative and management, although attimes before the accident involved here he assisted with maintenance work in heavy rush periods. Following the accident, plaintiff was treated inthe hospitalby Dr, Bossler who had been plaintiff's family doctor for thirteen years. plaintiff's injuries as listedby Dr. Bossler included: multiple bruises throughout hisbody; laceration over

one eye; injury to his right shoulder; some rib fractures; sore left ankle; injury tohisright knee; compression fracture of the transverse process of L4 and 

### a fracture of the spinous process of L4; bleeding from a cut on hishead; fracture of the bones about the face and left zygomatic arch; and an injured finger. As a result of the injuries, plaintiff was placed ina back brace whi-chhe continues towear most of the time; he has per-manent residuals of the back injury, finger injury, both legs; numbness tothe left side of hishead resulting from nerve injury tothe side of hishead; and headaches. Plaintiff regularlyreceives treatment inthe form of painkillers. Hiscondition ispermanent and is compounded by emotional trauma caused by the injuries and the need for continued treatment to alleviate pain.Dr. Trobough of Anaconda, the other examining physician, testified that the compression fracture isa disabling injury which cannot be relieved or rectifiedby surgery. He also testified plaintiff had a permanent residual inthe form of weakness inhis shoulders, tiredness inhis arms, accompanied

I1 by a tingling and numbness which 

### is just a strainpattern of the shoulders. I think itwas just 

### a strainpattern and the shoulders were strained. " Dr. Trobough gave the following testimony as to the compression fracture:

It

I thinkcompression fracture of 

### a vertebra causes considerable muscle spasm and ligamentous injury of the tissues around thisvertebra, plus there 

### is narrowing of the intervertebral space and there could be some evidence of compression injuries tothe nerves, plus generally a lot of muscle spasm. Limitation of motton of theback 

### is 

### a result of these compression fractures,It Dr. Trobough also testified that the old injury toplaintiff's right leghad been definitely aggravated by the plane accident and with reference tothe extent of plaintiff's disabilityhe testified: "MY disabilityrating

### willbe based mainly on the fracture of hisback. Anyway, I saidnow two years and three months after the accident the patient 

### is stillhaving subjective complaints as a result of his injuries on September 23, 

### 1969, They are, inmy opinion, of a permanent nature and he willcontinue torequire medical attention, care and medication. Any work that involves the use of the back, especially inthe labor field or anything that causes even average manual labor, I feelhe is 100 percent totally disabled. OR the basis of the above diagnosis, inmy opinion, he has a 

### 55 percent permanent disability,11Plaintiff's coemployees, Mr. Richard McCord and Mrs. Dorothy Moe, testified that upon returning tohisjob after the accident of September 23, 1969, plaintiff was not able toperform any physical labor; that he isquite nervous and appears tobe suffering most of the time; he cannot 

### sit forvery long; that he isshort-tempered and frequently hreaks out in

### a rash on his arms when he isnervous; and, that here are repeated tnstances of his being in pain, Defendants have raised the issue of plaintiff's condition with emphasis on his preexisting inability to engage inmanual labor prior to this accident attributed tohis fall 25 years 

### ago, Yet, defendants offeredno evidence tocontrovert plaintiff's evidence of years of manual labor following the fi.rst injurynor did they offer evidence tocontrovert his present condition. Defendants had plaintiff examined by an orthopedic surgeon, Dr, Harris Hanson of Helena, but failed to submit the results of that examination of plaintiff to thejury, As a result, the record contains some claimed inconsi-stencieselicted on medical cross-examination of plaintiff's medical witnesses but such inconsistencies do not overcome plaintiff

### 's evidence to a degree that the jury did not have before it substantial credible evidence upon which it could render itsverdict, In addition topreexisting disability, defendants base their argument ofexcessive damages primarily on the contention that a review of a1.l of the cases decided by this Court does not reveal

a 

### jury verdict of this size. They argue that this Court over the years has been confronted with hundreds of personal injury cases with in juries sllbstanti-a llymore severe than those suffered by plaintiff here, but therehave been no verdicts this large, Defendants cite to this Court for comparison of damage awards, Sheehan 

### v. DeWitt, 

### 150 Mont, 86, 430 P,2d 652, which held a county attorney struck inthe facewas not entitled to $1,500 because no treatment was required and itwas not 

### a serious injury;and Jewett v. Gleason, 104Mont. 

### 63, 65 P,2d 3, a 

# - 1937 case where 

### a $12,000 verdict on a back injury casewas reduced by

These arguments fail torecognize the criteriawhich governs the examination of damage awards by this Court, This Court and the Federal Courts inapplying Montana law recentlyhave spoken inunison in this area with clear and concise language, Smith v, Kenosha Auto Transport, 226 F,Supp, 771, 774, (D,C.Mcznt, 1964); Strong v, Williams, 154Mont, 65, 71, 460 P.2d 90; Sal-vailv. Great Northern Ry,, 156 Mont. 12, 

### 31, 473 P,2d 549, In Smith, in the contest of an $180,000 award, the Federal Court stated:

1IThe medical evidence inthis respect is largely uncontradicted, the only question raised by defendants being whether the conditionwas caused by the accident or pre-existed the accident inview of the diagnosis of a convulsive disorder in the plaintiff a year preceding the accident. The fact remains that after the previous diagnosis, the plaintiff recovered and performed well asboth a worker, and a husband and fatheruntil his injury inthe accident, In addition, there was positive medical testimony tothe effect that plaintiff's condition atthe time of trialresulted from the injuries received i.n the accident and/or the aggravation of a previous condition, which in itself was not disabling in the least. There was alsomedical testimony that plaintiff's condition 

### is permanent and progressive. II The Court in answer to the contention that the award was excessive, went on to say: "The foregoing also applies todefendants' contention that the verdict is so excessive that it must have resulted from passion and prejudice. It is only when the amount of the verdict is such as to shock the conscience of the court or tocause the court tobelieve itwas the result of sympathy, passion orprejudice, or that the jury, in fixing the amount of damages, was motivated by factors that should not have been taken intoconsideration, that the court may set aside a verdict. [Citing cases] This rule announced so often infederal courts is also the rule followed by theMontana Supreme Court. Sullivanv. City of Butte, 117 Mont, 215, 157 P.2d 479; Brown 

### v. Columbia Amusement Co,, 91Mont, 174, 6 P,2d 874; McCartan v, Park Butte Theater Co., 103Mont. 342, 62 P,2d 338; Thompson v. Yellowstone Livestock Commission, 133Mont, L03, 

### 324 P.2d 412, From the summary of the evidence and what has been said above, it isapparent that the amount of the verdict does not shock the conscience of the court, and the court does not believe the amount of theverdict was influenced by passion or prejudice, sympathy, or any other improper considerations.IlIn Strong, this Court stated:

IIIn personal injury actions there 

### isno fixed measuring stickby which todetermine the amount of damages, other than the intelligence of the jury; that thejury is allowed 

### a wide latitude and unless it appears the amount awarded isgrossly out of proportion tothe injury as to shock the conscience, this Court 

### willnot substitute 

### its judgment for that of thejury, especiallywhere, ashere, the trialcourt has approved the verdict by denying the motion for 

### a new trial," (Emphasis supplied), In Salvail, the Court entered thisrestatement: "It isidle to citecases from this or otherjurisdictions on awards by juries forcertain injuries asno two cases are alike and each case turns on its own facts. In 

### 11A.L.R,3d there are 713 pages of cases for comparison. "The amount tobe awarded as damages 

### isproperly left to thejury and this Court 

### rill not substitute its

- Judgment for that of thejury particularlywhere, as here, the trialcourt has approved the verdict b denying 

### a new trial. Strongv. Williams, 154Mo:t. 65 P.2d 

### 90. It 

### is onlywhere the amount awarded is so gr

## ,460 -0s sly out of proportion 

### tbthe injury as to shock the conscience that this Court 

### willintervene. In the instant case the verdict of $125,000 

### isnot so grossly out of proportion tothe injury as to shock our conscience nor induce a belief that itwas the product of passion or prejudice, Thprn ic: nnthin~ whatanbver in the-record to indicate

A*.-&- A" 

### ..---------- --- ---- - -

assion or prejudice; on the contrary, there 

### is a substan- !Fa1 - evidentiary 

## - basis 

## .. justifying the amount of the award." (Emphasis supplied). Here, thejury has made 

### its award forphysical damages caused to a 

### 44 year old plaintiff with a lifeexpectancy of 28,67 years, He must endure those injuries for that time, The trialcourt has refused togrant a new trial. We find nothing in the record toindica.te 

### thejury was motivated by factorswhich should not have been taken intoconsideration, such as passion, prejudice or sympathy, In light of the times and the growing

awareness within the legal processes thathas attempted toconform damage awards to the extent of the injuries sustained, the amount 

### of the verdict does not shock the conscience of the Court and

we find no error, Defendants1 issueNo. 3requires no extended discussion. They contend that a series of errors occurred during the trial

none of which, standing alone, would be sufficientlyprejudicial 7" 

## J* to authorize 

### a new trial, but the totality of which consitutedmanifest prejudice todefendants, requiring a new trial. The

errors towhich defendants direct our attention are: (1) Alleged speculative opinion evidence by expert witness Hamer that the moist condition of the sparkplugs found inthewreckage of the aircraft severalhours after the accident might have been caused by flooding resulting from a prolonged power-off glide to

### a lower altitude and a subsequent application of the throttle, (2) Testimony of expert witness Leaphart that there were a lot of places inthe vicinity of the crash sitewhere "you could touch down an airplane inthat area and come out of it reasonably unscathed." (3) Undue concernby the trialjudge for plaintiff's physical condition and comfort while testifying, Items (1) and (2) are irrelevant tothis appeal inany event, They refer only tothe issue of the pilot's negligence, Defendants concede this issue on appeal. This 

### isdemonstrated

11 by the following statement in theirbrief: However, inthe light of thejury's verdict, 

### we shallassume for the purposes of thisbrief on appeal only that [thepilot]was negligent in the operation of the aircraft,1I Item (3) likewise iswithout merit, The trialjudge simply advised plaintiff that ifhe wanted to stand up at any time while testifying todo so, and that ifhe needed a recess to say so. Defendants' attorneywas similarly solicitous of plaintiff's physical condition inlike manner, and raised no objection at the trial to the judge's remarks, Under such circumstances the claim of prejudicial error upon appeal 

### iswithout substance. The judgment of the

### Mr. Justice Wesley Castles dissenting: 

### Idissent. 

### I shall not dwell at length on the matter but will observe that the Workmen's CompensationAct, inmy vim, 

### forecloses an 

### action 

### by 

### an employee of one state agency against another state agency. Both agencies involvedhere 8r~ creatures of the Legislature,both financed by public tax monies. Additionally, on issue No. 

### 2, 

### Ic~ouldgrant 

### a new trial because the damages awarded are excessive. Here

### we have 

### an employee in 

### a managerial positionwho 

### has in fact returned to work and hns had 

### a salary increase since his return. In his position he is fully able to do the 

### job and 

### a quarter of

a 

### million dollar judgment shocksmy conscience. 

### Iwould grant 

### a new trial.

~ssoci63 \ 

### Justice.