No. 88-85 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

JANIE ANDERSON WALLS, 

Plaintiff and Appellant, 

-vsMARY RUE, 

Defendant and. Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen D. Roberts, Bozeman, Montana 

For Respondent : 

Warden, Christiansen, Johnson & Berg; Stephen C. Berg, 

Kalispell, Montana 

Submitted on Briefs: June 2, 1988 

Decided: August 11, 1988 

Filed: ~VS 11 mff 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal from the Ninth Judicial District presents a 

single issue for review: Should a new trial be ordered on 

damages under Gehnert v. Cullinan where the jury in its 

special verdict found both that plaintiff's injuries were 

caused by defendant's negligence and that plaintiff would 

incur future medical expenses for treatment of those injuries, yet failed to award plaintiff anything for future pain 

and suffering and other elements of damage? 

We decline to order a new trial and affirm. 

Appellant Walls sued respondent Rue for injuries stemming from an automobile accident which occurred on November 

14, 1985. The action went to trial before a jury on July 1, 

1987. At the end of the defendant's case, the lower court 

directed a verdict for plaintiff Walls on the issue of liability. The jury was then instructed to determine damages by 

answering questions posed through a special verdict. The 

verdict form and the jury's answers appeared as follows: 

We, the jury, answer the questions submitted 

to us in this Special Verdict as follows: 

I. Was the Plaintiff injured? 

X Yes No 

If your answer is "yes," go to the next question. If your answer is "no," then skip the remaining questions and simply sign the verdict. 

11. Was the Defendant's negligence a cause of 

injury to the Plaintiff? 

X Yes No. 

If your answer is "yes," go to the next question. If your answer is "no," then skip the remaining questions and simply sign the verdict. 
111. What is the amount of money that will compensate the Plaintiff for her injury? 

Medical Expenses to Date: $ 2000.00 

Future Medical Expenses: $ 2800.00 

Pain and Suffering to Date: $ 100.00 

Future Pain and Suffering: $ -- 

Lost Earnings to Date: $ -- 

Lost Earning Capacity: $ -- 

Loss of Enjoyment of Life to Date: $ 100.00 

Future Loss of Enjoyment of Life: $ -- 

DATED this 3rd day of July, 1987. 

s / jury foreman 

After the verdict, the District Court denied Walls's 

motion for new trial for an inadequate award, and also denied 

Walls's motion for reconsideration. 

Walls argues on appeal that the jury's failure to award 

more damages runs counter to the evidence. Walls speculates 

that the jury ignored the evidence showing her damages because some of the jurors, as revealed during voir dire, 

considered other jury awards excessive. Rue responds that 

the jury based its failure to award other damages on substantial credible evidence. We agree with Rue. 

In Maykuth v. Eaton (Mont. 19841, 687 P.2d 7261 41 

St.Rep. 1800, the District Court held insufficient as a 

matter of law a $700 award for pain and suffering. We reversed holding that: 

To permit the undoing of this verdict by affirming 

the trial court decision granting a new trial, 

would, in the language of Nelson v. Hartman (1982), 

Mont., 648 P.2d 1176, 1179, 39 St.Rep. 1409, 1412, 

"...create a bench supremacy and sap the vitality 

of jury verdicts." While the trial court, or this 

Court sitting as a jury, or another jury, may have 

awarded plaintiff more for pain and suffering in 
the year following the accident, we cannot say as a 

matter of law that substantial evidence did not 

support the jury's award. 

Maykuth, 687 P.2d at 727. 

We have also emphasized that: 

Our function in reviewing the sufficiency of 

proof of actual damages is to determine whether 

there is substantial credible evidence in the 

record to support the jury's verdict. We must view 

the evidence in a light most favorable to Lauman, 

the prevailing party below, and where the record 

presents conflicting evidence, resolved by the 

jury, this Court is precluded from disturbing the 

verdict. This rule is particularly applicable when 

the District Court has passed on the sufficiency of 

the evidence on motion for new trial and has upheld 

its sufficiency. 

Lauman v. Lee (Mont. 1981), 626 P.2d 830, 833, 41 St.Rep. 

499, 502. 

On the other hand, this Court has held that a jury's 

failure to award damages for pain and suffering constituted 

an inadequate award where: 

The evidence clearly indicates that the plaintiffs 

suffered serious and painful injury. The injury to 

Harold Gehnert's back is such that it may have been 

rebroken and there was evidence that he was permanently injured and disabled. Lina Brenner suffered 

a relapse into a severe depression and while her 

physical injuries may have been modest, they were 

accompanied by pain. Her testimony indicated hair 

had been pulled from her head. The jury found in 

this case that the Cullinans committed wrongful 

acts toward the plaintiffs, and their attack on the 

plaintiffs was the cause of the injuries sustained. 

Liability having been established, it was the 

jury's duty to award damages for pain and suffering 

for the serious injuries suffered. 
Gehnert v. Cullinan (Mont. 1964), 685 P.2d 352, 354, 41 

St.Rep. 372, 375. 

Walls contends that in this case, as in Gehnert, the 

jury failed to award damages when evidence clearly showed 

injury due to the defendant's conduct. Rue responds that the 

jury's failure to award greater damages resulted from the 

defendant's attacks on the credibility and certainty of 

evidence presented by Walls. To resolve this issue, a review 

of the medical evidence is necessary. 

The injury occurred to Walls's shoulder. X-rays taken 

shortly after the accident revealed no skeletal injuries, and 

the contusion to Walls's shoulder was described by the treating physician as not serious. 

However, medical testimony from depositions read into 

the record indicated that Walls's shoulder did not heal 

properly. One physician's impression was that Walls suffered 

from "rotator cuff tendinitis and possibly mild adhesive 

capsulitis of the left shoulder along with chronic cervical 

strain." Another's impression was "strain of the left shoulder with soft tissue tenderness and probably perifibrosis". 

Both agreed that use of the shoulder in physical therapy 

could improve the condition. One physician explained: 

Perifibrosis basically is tightness of the 

tissues around the shoulder, and I think my impression was that her complaints and her findings were 

pretty much related to her shoulder girdle, including the area between her shoulder blades as [sic] 

the shoulder itself and that the perifibrosis is a 

stiffness or lack of resiliency of the muscles and 

ligaments because it's been injured and protected 

and allowed to heal without motion or even if 

trying to move it, enough soreness was there to 

keep it from moving well, and that it was the lack 

of resiliency of the tissues, or the fibrosis of 

the tissues, that was causing a lot of the problems 

at the present time. 
A third physician provided no diagnosis for Walls stating that, "I don't have a diagnosis for her. I don't know 

why she has her symptoms." A fourth suspected "vasomotor 

reflex sympathetic dystrophy syndrome", and a fifth coined 

the condition as "chronic pain syndrome", answering queries 

from counsel as follows: 

Q. Are you comfortable with your opinion that this 

is a permanent condition? 

A. I don't think you can say any condition is 

permanent other than death, right. Hopefully her 

condition will improve and go away. But at this 

point in time, I think she has chronic pain syndrome. Hopefully it will be alleviated, but as to 

a time and a date and how long, I don't think 

anybody in the world can tell you that. 

The physician testifying in the above quote also stated 

that his office notes indicated that Walls had a separate 

injury to her back after the accident. Another physician 

testified that the severity of the injury might have resulted 

from its interaction with a preexisting condition. 

Walls and other witnesses testified that the injury 

caused loss of enjoyment and loss of past employment due to 

pain. Walls also presented evidence indicating that pain, 

loss of enjoyment, and loss of earning's capability would 

continue into the future. 

The defense presented no medical testimony of its own, 

but attacked the plaintiff's case by attempting to discredit 

Walls herself, and by pointing to the uncertainty characterizing the source, nature, and degree of the injury. For 

example, the defense contended that evidence showed: Walls 

had not properly documented her employment history after the 

accident, Walls had not properly followed physical therapy 

recommendations, and Walls engaged in activities which 
inferred that the injury was not restrictive. Rue also 

contended that the failure of one physician to diagnose a 

condition inferred the condition did not exist. 

Rue' s contentions find support from evidence in the 

record, and viewing the evidence in a light most favorable to 

Rue, we hold that the record supports the adequacy of the 

award. Thus, Walls contention that the jury ignored damages 

from a clear injury fails. 

Walls also argues that the jury's failure to award 

anything for future pain and suffering, future loss of enjoyment of way of life, and future lost earning capacity, while 

at the same time awarding damages for future medical expenses, is illogical. This inconsistency, according to Walls, 

shows that the jury ignored the instructions on damages. We 

disagree. 

Walls testified that: 

Q. So am I correct then that from the time you 

stopped therapy in Shelby which would be about 

February of '86 until January of '87 when you had 

Dr. Powell's therapy through Mr. Havens, you didn't 

[sic] not have therapy? 

A. No, I didn't. 

The lower court instructed the jury that: 

It is the duty of a person who has been injured to use reasonable diligence in caring for her 

injuries and reasonable means to prevent their 

aggravation and to accomplish healing. When one 

does not use reasonable diligence in caring for her 

injuries and they are aggravated as a result of 

such failure, the liability, if any, of another 

whose act or willing omission was a proximate cause 

of the original injuries, must be limited to the 

amount of damage that would have been suffered if 

the injured person herself had exercised the diligence required of her. 
As set out in the medical testimony summarized above, at 

least one physician held the opinion that Walls suffered from 

perifibrosis, and that perifibrosis is a stiffness or lack of 

resiliency of the muscles and ligaments because of an injury 

which has been protected and allowed to heal without motion. 

The obvious inference is that Walls should have better 

pursued therapy following the termination of her treatment in 

Shelby, and the jury's award for future medical expenses 

covers the treatment which should have been pursued earlier. 

Under these circumstances, the lack of an award for other 

future damages could have followed from the instruction set 

out above. We hold that Walls has failed to show that the 

jury ignored the instructions. 

We affirm.