### NO. 83-32 

### INTHE SUPRl3ME COURTOF THE STATEOF MONTANA 1984

HAROLD GEHNERT

### , Plaintiff andAppellant,-vsJOHN CULLINAN,WILLIAM CULLINAN, PAT 

### CULLINAN and ROBERT CULLINAN, Defendants and Respondents.



## ........................................ LINA 

### BRENNER,Plaintiff andAppellant,-vsELOISE CULLINAN and JOHN CULLINAN, Defendants and Respondents.

APPEAL FROM: DistrictCourt 

### of the Seventh JudicialDistrict, Inand for theCounty of Dawson, TheHonorable Leonard Langen, Judgepresiding.

COUNSELOF RECORD: ForAppellants: GeneHuntley argued,Baker, Montana For Respondents: 

### Lucas & 

### Monaghan; ThomasM. 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 The opinion was withdrawn and the case was argued before the Court en banc on June 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 properlyinstruct 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 disputeover leased property that had been leased by B.J. Brenner in 1969. Harold Gehnert is thebrother 

### 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 theproperty was susceptible to improvement, so he cleared it, fenced it, leveled it, diked it, ditched it, planted it and irrigated it. In 1974, the lastyear of hislease, he planted alfalfa and corn on thisacreage. According toB.J. Brenner, his leaseprovided 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 inApril 1974, he gave notice by letter and followed that notice up with a new lease and a check for another yearIsrent. In Julyof 1974, after the firstfiveyear period had terminated, the defendant, John Cullinan, came to 

### Mr. Brenner's home and advised him that he and his brother, William, had leased theproperty. 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 tofarm and manage thepremises. Heharvested one cropof hay and swathed the second cutting. The second crop of hay was baled and removed by the Cullinans. At trialthey admitted entering the premises, baling the hay and taking it for their own use without notice, explanation or payment toBrenner. In additiontheytook thethirdcutting thatyear. Corn on the leased property was harvested and in September, cattlebelonging totheBrenners and Gehnertwere turned ontothe property inquestionto "clean up" following the harvest. Itwas atthis 

### time, early inSeptember, that thedefendantJohn Cullinan, calledGehnert, 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 tomonitor 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 familydrove thecattlethrough fences onto the highway, scattering them for 

### a half-mile from the pasturewhere theyhad 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 sorting-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, whileLina Brenner watched from her car. They then began to

### move the cattlebut while theywere being moved, 

### sixof 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 atthis time and drove outside the perimeter of the pasture tothe same gatewhere the Cullinans had parked their car. She was concerned that the Cullinans might harm her pregnant daughter who was working the cattle. According toher story, when shegotto where the activitywas 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 tostand, John Cullinan shoved her back totheground. About that time

### Harold Gehnert startedtoward Eloise tocome toLina'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 hishorse to the ground. According to the testimony, all of this abuse of the plaintiffs took place on that part of the leased land thatwas fenced, improved and planted by B. J. 

### Brenner. The plaintiffs argue on appeal that the trial court improperly declined togrant them 

### judgment on the issue of liability when the evidence was closed, and also failed to instructthejury sothat it

### could, under thelaw, determine the matter. They allege that they offered appropriate instructions, allof which were refused.As previously noted, three issues were presented to this Court for consideration. However, inview of the fact thatthe firstissue isdispositive, wewillnot 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 injuriesmay 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. Liabilityhaving been established, itwasthejury's dutyto 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 trialcourt for new trialon the issueof damages only.

We concur: 

# 8. $i+L&,rwe-ep Chief Justice

### ~dfiorable ~ohn M. 

### McCarvel, ~i~strict Judge, sittingin place of Mr. JusticeL. C. 

### Gulbrandson.