### 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 

## -219q 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 inthe scope of his employment by the City of Bozeman struck the back of a parked

car inwhich plaintiffs were sitting. Defendants admitted liability. The sole issue atthe trial

### was the amount of damages tobe awarded plaintiffs. The jury returned 

### a verdict of $800 forNo11 and $1,100 forKeneady. Both plaintiffs appeal, claiming the awards are inadequate. They both claim injuriestotheir back and neck. In addition, No11 claims aggravation of a pre-existing arthritic condition and Keneady 

### claims aggravation of a neurotic condition inaddition todamage tothe 

### car owned by her. Two issues 

### are presented for review on appeal: (1)Was refusal of plaintiffs' offered instructionNo. 5 reversible error? (2) Was the evidence sufficient to support the verdict? Plaintiffs' offered instructionNo 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 injurywould not have resulted; but it must appear that the negligence of the person sought tobe charged 

### was responsible for at

### least one of the causes resulting inthe injury." For supporting authority plaintiffs citeFletcher v. City of Helena, 163Mont. 337, 344, 517 P.2d 365. They argue it was critically important thejury 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 anapportionment of damages between the prior condition and aggravation caused by defendants can only be made where there 

### isa 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 tohold defendants liable for the entireloss 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 toallowtheir proposed instruction No. 5, especially inview of defendants' crossexamination tending topoint toother possible causes of plaintiffs' condition. We disagree. The point was adequately covered by plaintiffs' offered instructionNo. 6 given by the court. This instruction reads: "In an action for damages for personal injuries caused by the wrongful actoromission of another, the injured person 

### is entitled tofullcompensation for allinjuriesproximately resulting from the defendant's act even though such injuriesmay have been aggravated by reason of her pre-existing physical condition and 

### wererendered more difficulttocureby reason of her existing 

### stateof health, or because of a latentdisease the injuries were rendered more serious toher than they would have been had she been inrobust health. "The Defendant cannot invoke the previous condition of the person injured for the purpose of escaping the consequences of hisown negligence or reducing thedamages forwhich he 

### is liable, but of course there can be no recovery for any elements due to the pre-existing condition and inno way resulting from the injury. The recovery in such case should includeno damages for injuries which result purely from the original condition. Itmust be confined tothose which aredue toitsenhancement and aggravation. The defendant must respond indamages for such part of thediseased condition as hisnegligencehas 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 ismore than a mere latent tendency the defendant can be held liableonly tothe 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 instructionNo. 5was not error. Directing our attentiontothe sufficiency of the evidence to support the damage awards, 

### we note that plaintiffs argue their evidence 

### isessentiallyuncontradicted because defendants presented no medical witnesses and thattheir evidence proves damages far inexcess of the amounts awarded by the jury. No11 argues the evidence shows she had toresign her teaching position on her doctor's recommendation because of the pain she was suffering inareas that had never bothered her before the accident; that she had been making $12,000 per year; that atthe 

### timeof trial she had actualwage loss of $7,200; that being 55 years of age she would have 

### a future loss of wages for 10more 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 inexcess of $100; that she lost 13weeks work totaling $2,067; and that property damage toher 

### car amounted to $306.56; besides pain and suffering, 

### allas a result of the accident. This case 

### isvery similar toHolenstein v. Andrews, 166 Mont. 60, 530 P.2d 476, where a verdict for plaintiff of zero damages 

### was affirmed under 

### similarcontentions. On appeal 

### we must review the evidence inthe lightmost favorable tothe prevailing party inthe districtcourt. Holenstein, supra. Further, thejury may accept testimony of a 

### witness inwhole or inpart ormay reject it altogether. Ibid. The jury was so instructed by the usual omnibus instruction given by the court without objection: "Inweighing 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 youmay reject it altogether as youmay 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 lawwhich requiresyou to believe as jurorswhat you would not believe asmen or women." Defendants were able on cross-examination to deflate the thrust of plaintiffs' testimony and thus showplaintiffs' 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-examinationwas equivocal concerning whether her present difficulties

were a result of a progression of her prior conditionnotwithstanding 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 shewas 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 testimonywould 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 severewhiplash. In summary the jury weighed the positive statements of the witnesses against the adverse circumstantial evidence and equivocating testimony revealed on cross-examinationand found the damages attributable to the admitted negligence of the defendants were much less than claimed. We cannot retry factual determinationsmade at trial. Dyksterhousev. Doornbos, Mont

# . - P.2d 

## , 34 St.Rep.415 

## , (decidedMay 25, 

### 1977)

## , -- quoting Hellickson v. Barrett Mobile Home Transp., 161Mont. 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 /-