No. 13329 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

VIRGINIA NOLL, et al., 

Plaintiffs and Appellants, 

THE CITY OF BOZEMAN, an incorporated 

municipality and WALTER L. BATES, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants: 

McKinley Anderson, Bozeman, Montana 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

Douglas Dasinger argued, Kalispell, Montana 

For Respondents : 

Brown, Pepper and Kommers, Bozeman, Montana 

Anderson, Symrnes, Forbes, Peete and Brown, Billings, 

Montana 

Richard Cebull argued, Billings, Montana 

Submitted: April 20, 1977 

Decided : JUN -2 19q 

Filed: Jkgm 8 QS?? 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Plaintiffs appeal from a jury award of damages resulting from an automobile accident. 

Plaintiffs were injured on August 17, 1973, when a 

street pavement roller operated by Bates in the scope of his 

employment by the City of Bozeman struck the back of a parked 

car in which plaintiffs were sitting. Defendants admitted 

liability. The sole issue at the trial was the amount of damages to be awarded plaintiffs. 

The jury returned a verdict of $800 for No11 and $1,100 

for Keneady. Both plaintiffs appeal, claiming the awards are 

inadequate. They both claim injuries to their back and neck. 

In addition, No11 claims aggravation of a pre-existing arthritic 

condition and Keneady claims aggravation of a neurotic condition 

in addition to damage to the car owned by her. 

Two issues are presented for review on appeal: 

(1) Was refusal of plaintiffs' offered instruction No. 

5 reversible error? 

(2) Was the evidence sufficient to support the verdict? 

Plaintiffs' offered instruction No 5 reads: 

"You are instructed that the negligence of the 

Defendant need not be the sole cause of the 

injury, it being sufficient that it was one of 

the efficient causes thereof, without which the 

injury would not have resulted; but it must appear 

that the negligence of the person sought to be 

charged was responsible for at least one of the 

causes resulting in the injury." 

For supporting authority plaintiffs cite Fletcher v. 

City of Helena, 163 Mont. 337, 344, 517 P.2d 365. They argue 

it was critically important the jury understand that if the 

accident was - one of the causes of plaintiffs' condition, then 

defendants would be liable; and that it was not necessary defendants be the sole cause. Further, they contend that an 
apportionment of damages between the prior condition and 

aggravation caused by defendants can only be made where there 

is a logical basis for such apportionment. Otherwise, where 

no basis can be found, such a division would be arbitrary and 

the only practical course would be to hold defendants liable 

for the entire loss notwithstanding the fact that other causes 

may have contributed to such loss. Kegel v. United States, 

289 F.Supp. 790 (1968). Finally, they submit the jury was 

misled by the failure of the court to allow their proposed instruction No. 5, especially in view of defendants' crossexamination tending to point to other possible causes of plaintiffs' condition. 

We disagree. The point was adequately covered by plaintiffs' offered instruction No. 6 given by the court. This instruction reads: 

"In an action for damages for personal injuries 

caused by the wrongful act or omission of another, 

the injured person is entitled to full compensation for all injuries proximately resulting from 

the defendant's act even though such injuries may 

have been aggravated by reason of her pre-existing 

physical condition and were rendered more difficult to cure by reason of her existing state of 

health, or because of a latent disease the injuries 

were rendered more serious to her than they would 

have been had she been in robust health. 

"The Defendant cannot invoke the previous condition 

of the person injured for the purpose of escaping 

the consequences of his own negligence or reducing 

the damages for which he is liable, but of course 

there can be no recovery for any elements due to 

the pre-existing condition and in no way resulting 

from the injury. The recovery in such case should 

include no damages for injuries which result purely 

from the original condition. It must be confined 

to those which are due to its enhancement and 

aggravation. The defendant must respond in damages 

for such part of the diseased condition as his negligence has caused, and if there can be no apportionment, or it cannot be said that the disease would 

have existed apart from the injury, then he is 

responsible for the diseased condition. But where 

the disease is more than a mere latent tendency the 

defendant can be held liable only to the extent 

that her negligence proximately aggravated the 

condition. " 
This instruction adequately covers the law relating to 

plaintiffs' theory of damages. Accordingly, refusal of plaintiffs' offered instruction No. 5 was not error. 

Directing our attention to the sufficiency of the evidence to support the damage awards, we note that plaintiffs 

argue their evidence is essentially uncontradicted because defendants presented no medical witnesses and that their evidence 

proves damages far in excess of the amounts awarded by the jury. 

No11 argues the evidence shows she had to resign her 

teaching position on her doctor's recommendation because of the 

pain she was suffering in areas that had never bothered her before the accident; that she had been making $12,000 per year; 

that at the time of trial she had actual wage loss of $7,200; that 

being 55 years of age she would have a future loss of wages for 

10 more working years of at least $12,000 per year; and that she 

had medical expenses of $512.87 besides pain and suffering, all 

as a result of the accident. 

Keneady argues the evidence shows that she had medical 

expenses in excess of $100; that she lost 13 weeks work totaling 

$2,067; and that property damage to her car amounted to $306.56; 

besides pain and suffering, all as a result of the accident. 

This case is very similar to Holenstein v. Andrews, 

166 Mont. 60, 530 P.2d 476, where a verdict for plaintiff of zero 

damages was affirmed under similar contentions. 

On appeal we must review the evidence in the light most 

favorable to the prevailing party in the district court. Holenstein, supra. Further, the jury may accept testimony of a witness in whole or in part or may reject it altogether. Ibid. 

The jury was so instructed by the usual omnibus instruction given 

by the court without objection: 

"In weighing the testimony of any witness you 

should take into account his interest or want of 
interest in the result of the case, his appearance 

upon the witness stand, his manner of testifying, 

his apparent candor or want of candor, and whether 

he is supported or contradicted by the facts and 

circumstances as shown by the evidence. You have 

a right to believe all the testimony of a witness 

or believe it in part and disbelieve it in part, 

or you may reject it altogether as you may find the 

evidence to be. You are to believe as jurors under 

the instructions of this Court and the evidence 

what you would believe as men and women, and there 

is no rule of law which requires you to believe as 

jurors what you would not believe as men or women." 

Defendants were able on cross-examination to deflate the 

thrust of plaintiffs' testimony and thus show plaintiffs' injuries 

attributable to the accident were perhaps minimal. The crossexamination revealed that perhaps Mrs. Noll's resignation from 

her teaching position was motivated by her marriage and resulting move to Arizona. Her medical testimony under cross-examination was equivocal concerning whether her present difficulties 

were a result of a progression of her prior condition notwithstanding the accident. 

As to plaintiff Keneady, her testimony under cross examination was similarly equivocal concerning whether her difficulties and job loss were attributable to the accident or independent emotional problems. At the time of the accident she was 

suffering from continuing emotional problems brought on by concern with her home, family and advancing age. She had suffered 

a nervous breakdown years earlier and her testimony would support 

a jury finding that her difficulties were the result of a continuing emotional condition. Also several years earlier she had 

suffered a spinal strain similar to that complained of here. 

The testimony of the driver of the pavement roller and 

of the investigating police officer was introduced tending to 

show the car had not been moved by the impact of the collision. 

Although this is in conflict with the two plaintiffs' testimony 

that the car had been jolted forward 2 or 3 feet, the evidence is 
capable of supporting the conclusion that the occupants could not 

have suffered a very severe whiplash. 

In summary the jury weighed the positive statements of 

the witnesses against the adverse circumstantial evidence and 

equivocating testimony revealed on cross-examination and found 

the damages attributable to the admitted negligence of the defendants were much less than claimed. We cannot retry factual 

determinations made at trial. Dyksterhouse v. Doornbos, 

Mont . - P.2d -- , 34 St.Rep. 415 , (decided May 25, 1977) , 

quoting Hellickson v. Barrett Mobile Home Transp., 161 Mont. 455, 

462, 507 P.2d 523. We find sufficient evidence in the record 

to support the amount of damages awarded. 

Judgment affirmed. 

Justice 

We con ur: - F /-