NO. 83-32 

IN THE SUPRl3ME COURT OF THE STATE OF MONTANA 

1984 

HAROLD GEHNERT , 

Plaintiff and Appellant, 

-vsJOHN CULLINAN, WILLIAM CULLINAN, 

PAT CULLINAN and ROBERT CULLINAN, 

Defendants and Respondents. ........................................ 

LINA BRENNER, 

Plaintiff and Appellant, 

-vsELOISE CULLINAN and JOHN CULLINAN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Gene Huntley argued, Baker, Montana 

For Respondents : 

Lucas & Monaghan; Thomas M. Monaghan argued, Miles 

City, Montana 

Submitted: June 7, 1984 

Decided: ~ugust 9, 1984 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a judgment of the District 

Court of the Seventh Judicial District of the State of 

Montana, in and for the County of Dawson, involving Harold 

Gehnert and Lina Brenner. Each of the plaintiffs/appellants 

sued the defendants, and their lawsuits were combined for 

trial. Nearly eight years after the incidents which gave 

rise to the lawsuits, a jury rendered its verdict in favor 

of the plaintiffs, nine in favor and three against, awarding 

the plaintiffs their medical expenses in the amount of 

$614.32 and each was awarded an additional $18,000 in 

punitive damages. An appeal was taken by the plaintiffs, 

briefs were filed and this Court ordered a rebriefing by 

both parties. 

An opinion in this case was issued on March 2, 1984. 

A petition for rehearing was filed by appellant Gehnert and 

this Court granted a rehearing. The opinion was withdrawn 

and the case was argued before the Court en banc on June 7, 

1984. Having heard the arguments of counsel, we reissue our 

opinion of March 2, 1984. 

Three issues are presented for this Court's 

consideration: 

(1) whether the jury's failure to award damages for 

pain and suffering and award only special damages, 

constitutes an inadequate recovery for compensatory damages; 

(2) whether an award for punitive damages can properly 

be considered in determining the adequacy of the 

compensatory damages award; and 

(3) whether the trial court's failure to properly 
instruct the jury on the issue of liability is a factor to 

be considered in determining whether the damages are 

inadequate. 

The plaintiffs were neighbors of the defendants and 

became involved in a land dispute over leased property that 

had been leased by B.J. Brenner in 1969. Harold Gehnert is 

the brother of Lina Brenner, B.J. Brenner's wife. The lease 

was for five years, terminating on June 23, 1974. At the 

time the land was leased, according to Brenner, it was 

unimproved and about ten or twelve acres of the property was 

susceptible to improvement, so he cleared it, fenced it, 

leveled it, diked it, ditched it, planted it and irrigated 

it. In 1974, the last year of his lease, he planted alfalfa 

and corn on this acreage. 

According to B.J. Brenner, his lease provided that if 

he gave the lessor thirty days notice in writing he would 

have the right to renew the lease for an additional five 

years. He testified that in April 1974, he gave notice by 

letter and followed that notice up with a new lease and a 

check for another year Is rent. 

In July of 1974, after the first five year period had 

terminated, the defendant, John Cullinan, came to Mr. 

Brenner's home and advised him that he and his brother, 

William, had leased the property. Plaintiff Brenner advised 

Cullinan that his own lease was superior to that of the 

Cullinans because he had an option to renew the original 

lease which option had been exercised. Thereafter Brenner 

continued to farm and manage the premises. He harvested one 

crop of hay and swathed the second cutting. The second crop 

of hay was baled and removed by the Cullinans. At trial 
they admitted entering the premises, baling the hay and 

taking it for their own use without notice, explanation or 

payment to Brenner. In addition they took the third cutting 

that year. 

Corn on the leased property was harvested and in 

September, cattle belonging to the Brenners and Gehnert were 

turned onto the property in question to "clean up" following 

the harvest. It was at this time, early in September, that 

the defendant John Cullinan, called Gehnert, and told him to 

move the cows off the leased property or he, Cullinan, would 

move them. Gehnert told Cullinan that his brother-in-law 

Brenner had the lease and that he and Brenner were cleaning 

up some corn on the property. Thereafter he called the 

sheriff for assistance, and the sheriff came out to monitor 

this dispute. On September 12th, Gehnert and John and 

William Cullinan arrived at the property. Disregarding 

Gehnertls demands that the cattle be left alone, the 

Cullinans broke down the fences and with the aid of other 

members of their family drove the cattle through fences onto 

the highway, scattering them for a half-mile from the 

pasture where they had been grazing. 

Needless to say this caused a certain amount of 

unfriendliness with the neighbors. After the cattle had 

been gathered, they were trailed from the Brenner land 

across the leased land and put in corrals adjacent to the 

leased land for sor ting-out purposes. The following day 

Gehnert and Midge Brilz, Lina Brennerls pregnant daughter, 

went to the corrals, mounted two horses and sorted the 

cattle. Gehnertls and Srennerls cattle were separated, 

while Lina Brenner watched from her car. They then began to 
move the cattle but while they were being moved, six of the 

Cullinans arrived on the leased land. According to the 

plaintiffs, the Cullinans spread out through the cattle 

trying to scatter and disorganize them and then tried to 

drive the cattle out on to the road again. The plaintiffs 

tried to keep the cattle from being driven from the pasture 

by the Cullinans. 

Lina Brenner became frightened at this time and drove 

outside the perimeter of the pasture to the same gate where 

the Cullinans had parked their car. She was concerned that 

the Cullinans might harm her pregnant daughter who was 

working the cattle. According to her story, when she got to 

where the activity was going on she stopped the car. Eloise 

Cullinan then entered her car from the passenger side, 

grabbed her by the hair, pulled her from the car and pinned 

her on the ground. When Eloise got off of her and Lina 

tried to stand, John Cullinan shoved her back to the ground. 

About that time Harold Gehnert started toward Eloise to come 

to Lina's aid. He was mounted on a horse, and four of the 

Cullinan men surrounded his horse, slapped and punched him 

and either knocked him or pulled him from his horse to the 

ground. According to the testimony, all of this abuse of 

the plaintiffs took place on that part of the leased land 

that was fenced, improved and planted by B. J. Brenner. 

The plaintiffs argue on appeal that the trial court 

improperly declined to grant them judgment on the issue of 

liability when the evidence was closed, and also failed to 

instruct the jury so that it could, under the law, determine 

the matter. They allege that they offered appropriate 

instructions, all of which were refused. 
As previously noted, three issues were presented to 

this Court for consideration. However, in view of the fact 

that the first issue is dispositive, we will not discuss the 

other issues. 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. See, Allers v. Willis (Mont. 1982), 643 

P.2d 592, 39 St.Rep. 745; Ankeny v. Grunstead (1976), 170 

Mont. 128, 551 P.2d 1027; Holenstein v. Andrews (1975), 166 

Mont. 60, 530 P.2d 476; and Walker v. Alaska Road Commission 

(Alaska 1964), 388 P.2d 406. 

The judgment is vacated and the case is remanded to 

the trial court for new trial on the issue of damages only. 

We concur: 

8. $i+L&,rwe-ep 

Chief Justice 
~dfiorable ~ohn M. McCarvel, 

~i~strict Judge, sitting in 

place of Mr. Justice L. C. 

Gulbrandson.