No. 12060 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

RICHARD SANDERS and ANNASTELLE SANDERS, 

Plaintiffs and Respondents, 

MOUNT HAGGIN LIVESTOCK COMPANY, 

a Montana corporation, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant : 

Poore, McKenzie & Roth, Butte, Montana. 

Urban L. Roth argued, Butte, Montana. 

Donald C. Robinson argued, Butte, Montana. 

For Respondents: 

Knight, Dahood and Mackay, Anaconda, Montane. 

Wade J. Dahood argued, Anaconda, Montana. 

David M. McLean argued, Anaconda, Montana. 

McKeon & McKeon, Anaconda, Montana. 

John L. McKeon argued, Anaconda, Montana. 

Submitted: June 13, 1972 

Decided :Aid6 2 1 1972 
Nr. Justice Wesley Castles delivered the Opinion of the Court, 

This is an appeal from a judgment of the district court of 

the third judicial district, Deer Lodge County. The jury returned 

a verdict in favor of plaintiffs and awarded damages in the sum 

of $96,140. Defendant moved the trial court for a new trial and 

for judgment notwithstanding the verdict; both motions were denied 

by the trial court. Defendant appeals from the judgment. 

In early May 1969, defendant Mount Haggin Livestock Company 

owned approximately 600-850 head of Black Angus cattle which were 

pastured in a fenced pasture in the Deer Lodge Valley between 

Galen and Anaconda, Montana, in the general proximity of Montana 

Highway No, 273. This highway is also known as the Lost Creek 

Highway or the Old Galen Road, The enclosure in which the cattle 

were pastured was referred to throughout the trial as the "Peterson 

place", 

On the three days of May 8 to May 10, 1969, Mount Haggin 

divided the cattle into two groups, with no attempt being made to 

keep the cows with their respective calves, and then moved each 

group from the Peterson Place down the Lost Creek Highway, 

approximately one-half to three-quarters of a mile, to a pasture 

11 known as the Swamp Pasture" or the "Poor Farm Pasture". 

Three cowboys, James Baustadt, Jim Nolan and Donald Martz, 

who had worked for defendant during the herding operation but were 

employed elsewhere at the time of trial, testified as to the facts 

of that herding. They established the operation had taken three 

days. The first two days,May 8 and 9, each of the two halves of 

the herd were driven to the Poor Farm Pasture. On Friday, May 9, 

a "spill back" occurred, i.e., some of the cattle turned around 

at the entrance to the Poor Farm Pasture to which they were being 

moved, and they ran back up the road to the Peterson Place where 
they had been originally pastured. On Saturday, May PO, the cowboys 

returned to the area and picked up the strays which had either 

been left in the Peterson Place pasture or had "spilled back" and 

returned to that pasture. These cattle were either driven or 

hauled to the Poor Farm Pasture. 

On the evening of May 10, Rick Barkell, Jr., and Christie 

Sanders, who was seventeen years of age, planned to attend a birthday 

party in the Modesty Gulch area, They left Anaconda together with 

Norman Motland at approximately 4:00 or 5:00 p.m. Their intention 

Mas to hunt gophers before they went on to the area where the party 

was to be held, They arrived at the Modesty Gulch area at approximately 8:00 or 9:00 p.m., where the party was under way. During the 

time they were at the party they both drank some keg beer. They 

remained at the party until approximately 12:30 or 1:00 a.m. 

Returning home, Rick Barkell and Christie Sanders proceeded 

td Moatana Highway 273 on a different road than the one they had 

traveled going to the party. Suddenly Barkell, who was driving 

t:he pickup truck, noticed a cow very close to the front of his 

gehicle. The cow was a truck-length to a truck-length and a half 

in front of him, moving across the road into his lane of traffic. 

Yarkell, after attempting to swerve around the cow, hit it. At 

chis point the pickup started to roll and ended up in a borrow pit 

:o che left of the highway. Barkell found himself lying on the 

gi-uund outside the pi-ckup cab with the truck on his foot. He freed 

;~imself and looked around for Christie, who was lying behind him. 

she called his name and he told her to lie still and he then went 

sfor assistance. Barkell left the scene of the accident, ran down 

lo the Poor Farm to seek help and finding none he eventually caught 

3 ride into Anaconda. 

Highway Patrolman William Steiner investigated the accident. 

He arrived at the scene at approximately 2:30 to 3:00 a.m. and 

-3- 
discovered the body of the deceased Christie Sanders. After calling 

an ambulance, he began his investigation which continued into the 

following day. 

The cow that was struck was a mature Black Angus owned 

by the Mount Haggin Livestock Company. Plaintiffs, parents of 

Christie Sanders, contend the negligence of the Mount Haggin 

Livestock Company was the proximate cause of their daughter's death. 

Defendant presents several issueson appeal. The first 

issue contends defendant was entitled to a directed verdict or 

in the alternative for a judgment notwithstanding the verdict, for 

these reasons : 

A. Defendant owed no duty to fence in the cow which had 

wandered onto the highway; or 

B. The evidence was insufficient to support the verdict 

o~ judgment; or 

C, The jury was improperly instructed on negligent herding 

and damages, 

We cannot agree with defendant's contentions on the first 

issue, Plaintiffs established a prima facie case and the jury had 

a right and duty to examine the evidence and to hear the testimony 

%~f the witnesses. Sufficient testimony was brought before the 

jury to establish a prima facie case of negligence; consequently, 

?he trial court did not err in refusing to grant defendant's motions. 

Testimony was introduced as to whether or not the herding was done 

in a negligent manner. Conflicts in the testimony existed, but the 

iury was the ultimate finder of fact. d 

No one will dispute that Montana is an open range state, 

fhis Court has many times so ruled, But, as with every rule of law, 

fefinite exceptions do exist. The exception to the open range rule 

zxists when the animals in question are in charge of herders. This 

Court stated this exception in Jenkins v. Valley Garden Ranch Inc., 
151 Mont. 463, 465, 443 P,2d 753, citing from Montgomery v. Gehring, 

145 Mont. 278, 283, 400 P.2d 403: 

"'One releasing his livestock onto lands where he 

has a right to do so is under no duty to restrain 

them from entering another's unenclosed land. Such 

livestock owner is not responsible for damages occasioned by the entry of his livestock on such unfenced 

hand through following their natural instincts. - The 

exception to this, of course, is willful or intentional 

herding or driving livestock onto another's unfenced 

land or placing them so near that trespass is bound to 

occur. I' ( -- Emphasis supplied) 

In Estate of Bartsch, 149 Mnnt. 405, 427 P.2d 302, the 

Court plainly indicated that if an animal is willfully or intentionally driven onto the highway right-of-way a duty is created, 

 he breach of which constitutes negligence. Here, the testimony 

and evidence presented clearly indicates that Mount Haggin may 

have willfully, intentionally and deliberately driven the animals 

upon the highway right-of-way and left them there once they had 

escaped from the control of the herders. There is nothing in the 

record to indicate that action was taken to warn motorists of the 

hazard that may have been created upon the highway. In this case, 

a duty may have been violated constituting negligence, and the 

trial court was correct in allowing it to go to the jury for final 

determination. 

Defendant's second issue on appeal is whether or not the 

trial court erred in refusing to exclude the testimony of plaintiffs' witnesses whose identity had not been disclosed, despite 

interrogatories requesting their identity. We find such refusal 

was error. 

A basic physical fact of this case was that the accident 

which took the life of Christie Sanders occurred in the Deer Lodge 

Valley near the old "Poor Farmrq, and that defendant had moved a 

herd of cattle past that farm, through an adjacent gate, shortly 

before the accident. This elementary fact was known to plaintiffs' 

counsel soon after they began investigation of the case. 
Plaintiffs subsequently filed their complaint alleging 

defendant was guilty of negligently conducting a herding operation 

which caused the death of their daughter. Thereafter, discovery 

was initiated by counsel for plaintiffs and defendant. At the 

same time, plaintiffs' counsel employed a private investigator to 

interview witnesses or possible witnesses in the area where the 

accident occurred. 

About one month after the accident, this investigator 

interviewed Ethel and Doug Davis, a married couple who live at 

the old "Poor arm" and who subsequently became key witnesses for 

plaintiffs. The investigator, a police officer regularly employed 

by the city of Anaconda, interviewed Ethel and Doug Davis again 

two or three months later. They related to him the information they 

subsequently gave at the trial, 

Months after this investigative activity by plaintiffs' 

counsel, counsel for defendant propounded and submitted interrogatories to plaintiffs and their counsel which requested inter -9 alia 

the following information: 

"INTERROGATORY NO. 59: Give the name, addresses, 

places of employment, home and business telephone, 

numbers, job titles and capacities and Last known 

whereabouts of: 

I1 a, Any person known to you, your agents, 

employees or attorneys who witnessed the accident, or was in its vicinity before, at the 

time of or just after its occurrence * ik *." 

"INTERROGATORS NO. 60: What is the name and 

address of each person who has knowledge of one 

or more facts or- circumstances upon which you 

base your allegations of: 

"a. Negligence of the Defendant, but who 

did not actually see the accident; 

"c. Any other matters which relate to the 

accident or to damages or causation, I1 

"INTERROGATORY NO. 61: Have any persons made any 

statements. written or otherwise. while being interviewed or questioned by you or on your behallf, including your attorneys, insurance adjuster, agents 
or representatives of your attorneys, in connection 

with the accident complained of?" 

"INTERROGATORY NO, 62: If so, for each statement 

indicate : 

11 a. The name, address, occupation and relationship to you of the person taking it; 

"b. The date of making; 

"c. The place of making; 

"d. Whether signed or unsigned; * " , >'t 1 I 

"INTERROGATORY NO. 63: What is the name, last known 

address. present whereabouts, if known. of each person 

whom yo& br anyone acting insyour behaif, including 

attorneys, agents, insurance adjusters, or other persons, knows or believes to have any relevant knowledge 

of the conditions at the scene of the accident existing 

prior to, at, or immediately after the same. It 

The names of Ethel and Doug Davis were not listed in the 

answers given to the above quoted interrogatories. These witnesses, 

whom the investigator discovered and interviewed, fell within the 

scope of the answers to the interrogatories which plaintiffs 

subsequently submitted to defendant, in that Ethel and Doug Davis 

were : 

I. Persons who had "knowledge of one or more facts or 

upon circumstances hhich" plaintiffs base their allegations of 

"a. Negligence of the Defendant", (Interrogatory No, 60). 

2. Persons who had "knowledge of one on: more facts or 

circumstances upon which" plaintiffs base their allegations of 

' tl c. Any other matters which relate to the accident 9: * or 

causation. If (Interrogatory No. 60) 

3, Persons who had "made any statements, written or 

otherwise, while being interviewed or questioned by * * * 

agents or representatives of [plaintiffs'] attorneys ;k * *I1, 

(Interrogatory No. 61). 

4. Persons whom plaintiffs "or anyone acting in [their] 

behalf, including attorneys, agents * * * or other persons, knows 

or believes to have any relevant knowledge of the condi-tions at 
the scene of the accident existing prior to, at, or immediately 

after the same." (Interrogatory No. 63). 

The investigator was not mentioned in the answers to 

these i.nterrogatories as a person who knew, for instence, of the 

"conditions at the scene of the accident", although he interviewed 

people and took photographs, 

Then, on September 10, 1970, some 46 days before the trial 

began, defendant propounded supplementary interrogatories to the 

plaintiffs. They requested that plaintiffs list all of the witnesses they intended to call at the trial and the names of "all 

persons from whom statements have been taken by attorneys, agents, 

investigators or any other persons on behalf of the plaintiffs 

and specify whether the statement is written or oral and the name 

of the person taking such statement. " Plaintiffs, although required by Rule 33, M.R,Civ.P., to answer those interrogatories 

within 20 days,failed to respond, 

Thus, despite the foregoing account of the investigation 

and discovery procedures by counsel the identity of Ethel Davis 

was not disclosed until four days before the trial. The identity 

of her husband, Doug Davis, was not disclosed to defense counsel 

until the morning of the trial, The trial began on Monday morning, 

October 26, 1970. On Thursday before the trial, counsel for 

defendant exchanged a list of witnesses with counsel for plaintiffs. 

At that time and for the first time, the identity of Ethel Davis 

was disclosed. When defense counsel asked for the address of 

witness Ethel Davis, he was informed she lived "somewhere out in 

the (Deer Lodge) valley." Some hours prior to this disclosure, 

counsel for plaintiffs had issued a subpoena for Ethel Davis 

directing her to appear and testify as a witness for the plaintiffs. 

Yet, a few hours later, counsel for the defense was advised that 

plaintiffs' counsel did not know where she lived. 
The record shows the testimony of Ethel and Doug Davis came 

as a complete surprise to defendant, Defense counsel were forced 

to rely upon a transcript of a tape recording taken by counsel for 

plaintiffs and then, subsequently, a recording taken by two members 

of their own law firm who had no knowledge or background of the 

case. Neither Ethel or Doug Davis had been interviewed or deposed 

by counsel representing defendant prior to their actual appearance 

on the witness stand. 

This situation justified and required the exclusion of 

the witnesses' testimony. A motion to exclude and disallow any 

testimony of these witnesses was made, supported, and elaborated 

upon with a complete statement of the surrounding facts. The trial 

court was in error to refuse this sanction for failure to make 

proper and accurate responses to interrogatories that were designed 

to elicit exactly the information which was withheld. 

The interrogatories propounded to plaintiffs were continuing 

in nature and specifically stated the information requested of 

plaintiffs and their attorneys, and also extended to facts within 

the knowledge of the parties, their "agents and representatives", 

As the testimony at the trial and the affidavits submitted by 

plaintiffs' counsel clearly show, the investigator was an agent 

of the law firm of Knight, Dahood & MacKay, and conducted an 

investigation of the accident for that law firm. Mrs. Davis 

verified, in her own testimony, that she had told the investigator 

the same story she testified to at the trial. Plaintiffs' counsel 

considered her testimony most crucial to their case, and they 

argued to the jury that her testimony had a direct bearing on the 

question of whether Mount Haggin conducted negligent herding operations, 

Counsel for defendant correctly cites Smith v. Babcock, 

157 Kont. 81, 91, 482 P.2d 1014, as authority for excluding the 
Davis testimony. In Smith, this Court held that the exclusion 

of the testimony of a witness should have been required when the 

party who introduced his testimony failed to supply the name of 

the witness in answer to an interrogatory which requested "names 

and addresses of all persons who have any knowledge or information 

I I relating to the accident or its cause.. 

Counsel for plaintiffs cite Wolfe v. Northern Pac, Ry., 

147 Mont, 29, 40, 409 P.2d 528: 

"Rule 33, M.R.Civ,P., authorizing the use of 

interrogatories for purposes of pre-trial disI covery from any adverse party,' although liberally 

construed to make all relevant facts available to 

parties in advance of trial and to reduce the possibilities of surprise and unfair advantage 5: * * 

cannot become a weapon for punishment or forfeiture 

in the hands of a party, or an instrument for 

avoidance of a trial on the merits. 5: * *. l1 

The rule stated in Wolfe is valid and we agree with plaintiffs' 

interpretation; however, in Wolfe the Court also stated: 

"In interpreting these rules [Montana Rules of Civil 

Procediire] we will reverse the trial judge only when 

his judgment may materially affect the substantial 

rights of the appellant and allow a possible miscarriage of justice, I I 

Under the facts here, we believe a possible miscarriage of 

justice has substantially affected the rights of defendant. 

From the testimony given at trial, one readily discerns 

the importance of the testimony of Ethel and Doug Davis. Both 

testified they were able to observe the herding operation of the 

Mount Haggin cowboys and that it was carried on in a negligent and 

inefficient manner. Both testified that some of the cattle, as 

they were driven down the highway, refused to enter the Poor Farm 

(Swamp) pasture and either "stampeded1' or "spilled back" to the 

Peterson Place. They also testified they believed that cattle were 

present on the highway the night of the accident. Due to the 

fact that Doug Davi-s had had a series of heart attacks he was 

unable to come to the courtroom, so the trial judge ordered the jury 
to go eo the residence of Doug Davis and his testimony was taken 

in the Poor Farm building which is located immediately adjoining 

the Swamp Pasture area. 

This Court agrees with defendant's contention that the 

testimony of the witnesses Davis was crucial to the plaintiffs' 

case and from the verdict returned by the jury we are compelled 

to believe this testimony was significant to the jury during its 

deliberations. Since proper discovery procedures were not followed, we find the trial court did commit error in allowing the 

testimony of Ethel and Doug Davis. 

Counsel for defendant made three formal objections during 

che course of the trial in order to obtain the quashing of the 

Davis testimony. The first objection was made immediately at 

the commencement of the trial: 

"MR. ROTH [Counsel for defendant] : Now, may it please the 

court. The Defendant will now object to the additional 

witnesses that have been listed by the Plaintiffs, and 

the use of their testimony in the trial of this case, on 

the ground and for the reason that at the pre-trial conference the names and addresses of all witnesses were 

to be exchanged between counsel for the parties at least 

ten days prior to trial, and this was agreed to by the 

parties. Now, then, your honor, the Plaintiffs had a 

duty in this case to prepare the pre-trial order, and it 

wasn't prepared within the time it was supposed to have 

been prepared, and so the names of these witnesses comes 

as a complete surprise to the Defendant, your honor, at 

this late date, for we have not had an opportunity to 

consult and investigage the testimony of Mrs. Ethel Davis, 

or the other additional witnesses named, Dick Harris, Dan 

Jancic, or Margaret Durkin. 11 

This objection was overruled. 

The second objection raised by Mr. Roth was at the time 

Mrs. Ethel Davis was about to testify: 

"MR. ROTH: May it please the court, Comes now the 

Defendant, Mount Haggin Livestock Company, in the 

cause now being tried before this court, and respectfully moves the court to quash and disallow any testimony of either of the witnesses, Ethel Davis and Doug 

Davis, upon the following grounds, and for the following 

reasons: (1) that the following interrogatories were 

propounded to the plaintiffs on November 21st, 1969, 

among which interrogatories were the following: Interrogatory Number 59: Give the names, addresses, places 
of employment, home and business telephone numbers, 

job titles, and capacities, and last known whereabouts 

of: (a) any person known to you, your agents, employees, 

or attorneys, who witnessed the accident, or was in its 

vicinity before, at the time of, or just after its 

occurrence. Interrogatory Number 60: What is the name 

and address of each person who has knowledge of one or 

more facts or circumstances upon which you base your 

allegation of: (a) negligence of the defendant, but 

who did not actually see the accident; and, further, 

(c) any other matters which relate to the accident, or 

to damages or causation. Interrogatory Number 61: Have 

any persons made any statements, written or otherwise, 

while being interviewed or questioned by you, or on your 

behalf, including your attorneys, insurance adjuster, 

agents or representatives of your attorneys, in connection with the accident complained of. Interrogatory 

Number 62: If so, for each statement, indicate: (a) 

the name, address, occupation, and relationship to you, 

of the person taking it; (b) the date of making; (c) 

whether signed or unsigned. Interrogatory Number 63: 

What is the name, last known address, present whereabouts, 

if known, of each person whom you, or anyone acting on 

your behalf, including attorneys, agents, insurance 

adjusters, or other persons, knows or believes to have 

any relevant knowledge, of the conditions at the scene 

of the accident, existing prior to, at, or immediately 

after the same, (2) that answers to these interrogatories 

were received by the defendant on January 23, 1970, but 

that nowhere in the answers to the foregoing interrogatories 

.was there any information with regard to the existence or 

whereabouts of Ethel Davis or Doug Davis. (3) that the 

identity of Ethel Davis and Doug Davis was known to the 

plaintiffs, and their attorneys, one month after the 

accident, through Mr. Daniel Jancic, an employee and agent 

of said attorneys, and again four months after the accident. (4) that counsel for the defendant have interviewed 

the said Mr. Daniel Jancic, the employee and agent of the 

attorneys for the plaintiffs, and the man who investigated the accident for Wade J. Dahood, and his firm, and 

that Mr. Jancic advised that he interviewed Mrs. Ethel 

Davis, and saw Doug Davis, at their farm, approximately 

one month after the accident, and, again, approximately 

four months after the accident, and that at each such 

interview, Ethel Davis told Nr. Jancic substantially the 

same things she told John L. "Luke" McKeon, and Mr. Jancic, 

on October 25, 1970, but, we submit, your honor, that the 

very first time the defendant was advised of the existence 

of Ethel Davis was on Thursday, October 22nd, 1970, at 

which time, in a conversation between Donald C. Robinson 

and David L. NcLean, Mr. Robinson asked for the address 

of Mrs. Ethel Davis, and was advised in response to that 

inquiry that she lived 'somewhere out in the valley. 1 

(5) we further submit, your honor, that recorded statements were taken from Ethel and Doug Davis, but that counsel 

for the defendant were not given a copy of these recorded 

statements until Tuesday, October 27tI;, 1970, and, of course, 

up to that time did not have an opportunity to interview 

either of these people. (6) that during the trial of 

this case, the counsel trying the case for defendant, 

Urban L. Roth, Donald C, Robinson, or, Robert J. Boyd, 

would not have time to personally interview said witnesses, 
nor to carefully interrogate these witnesses on the 

stater~ents that they had given to E4.r. McICeon; (7) 

further, they would not have an opportunity to investigate the backgrounds of these witnesses to determine what animosity, if any, they held toward 

fdiount Haggin Livestock Company, or any of its employees. (8) that they would not have an opportunity 

to prepare for an exhaustive deposition of these 

witnesses, (9) that Mr. Jancic had advised counsel 

for defendant, Urban Roth and Don Robinson, that the 

names of Ethel and Doug Davis were given to Wade J. 

Dahood at or shortly after the time he originally 

interviewed them. (10) that the Montana Rules of 

Civil Procedure, upon which the Montana Rules of Civil 

Procedure are patterned, require full and complete 

disclosure of all information requested in interrogatories propounded to one party by the other, and we 

respectfully submit to the court that certain sanctions 

may be imposed by the court where there is a violation 

of the spirit of the rules of procedure for discovery, 

and we respectfully move the court that such sanction 

be imposed upon counsel for the plaintiffs for their 

utter disregard and violation of this rule of procedure 

for discovery, and their failure to disclose this information, and based upon the information that I have 

just submitted to the court, we submit that this sanction -I 

is most appropriate under these circumstances. I I 

This second objection was also overruled. 

to 

The third objectionlthe Davis testimony was made by Mr. Roth 

in his motion for a directed verdict: 

" (9) Now, furthermore, your honor, we submit that the 

motion to quash the testimony of Ethel and Douglas Davis 

should be granted, and that the court, in determining 

the merits of Defendant's motion for a directed verdict, 

should completely disregard the testimony of Ethel and 

Douglas Davis, on the grounds previously stated in this 

record, that is, that the Plaintiffs, and their attorneys, 

failed to respond to specific interrogatories, which 

would have disclosed the names and existence of Ethel 

and Doug Davis months before the trial of the case, and 

that there was absolutely no excuse for their failure to 

name Ethel and Doug Davis in response to interrogatories, 

and that their testimony should be completely disregarded 

in ruling on the motion for directed verdict. 

This third objection was also denied. 

From this record, is clear that defendant's counsel took 

every opportunity to object to the Davis testimony. All these 

objections, even though well taken, were denied by the trial court. 

Mr. Roth did all that a counsel could do under the circumstances 

to exclude the Davis testimony. He correctly believed that any 

further objection would hinder his client's case; therefore, he 

decided to raise this error on appeal. This Court will correct 

Chis error. A new trial is ordered. 
In conclusion, we believe it necessary to mention one other 

issue. Since this case is being remanded for a new trial, it is not 

riecessary LLO fully develop the issue, however, it does merit some 

discussion. 

That issue is damages. The jury returned a verdict in the 

amount of $96,140. This Court finds a strong possibility exists 

that the amount was excessive, In the record there is no evidence 

that Christie Sanders would have remained in the Anaconda area 

after graduation from high school; no evidence was introduced as 

to what her future plans were so far as residence or school; there 

was no evidence offered that she had ever given her family any 

pecuniary support or that she was motivated in that direction; and, 

very little evidence was offered as to the relationship between her 

and her parents. The paucity of evidence as to damages indicates 

a strong possibility the verdict was prompted by passion and prejudice; or, the jury was improperly instructed as to the proper 

criterion of damages. 

In Wyant v. Dunn, 140 Mont. 181, 368 P.2d 917, the Court 

recognized the universal rule that damages in this type of action 

are first presented to the sound discretion of the jury, then 

reviewed by the trial judge, who must set aside or modify the verdict on a motion for a new trial if the amount of the verdict is 

not just. Only in rare cases should a decision be reversed where 

the trial judge and the jury agree that the verdict is proper. 

The present factual situation suggests a strong possibility that 

this is such a case. 

In Montana in a wrongful death action, such as this, 

dzmages as under all the circumstances of the case may be just 

may be recovered; but, a verdict for damages must be based upon 

admissible evidence. Krohmer v. Dahl, 145 Mont. 491, 402 P.2d 979; 

Davis v. Smith, 152 Mont. 170, 448 P.2d 133. 
Nevertheless, though the amount of damages is solely within 

the province of the jury, the jury is not given carte blanche. Some 

substantial evidence must exist upon which the award of $96,140 

can be predicated. In Miller v. Boeing Company, (D.C.Mont.1965) 

245 F.Supp. 178, Judge Jameson, applying Montana law, concluded 

that a verdict of $52,700 to plaintiff widow for the wrongful death 

of her husband was excessive. The verdict was reduced to $37,500. 

involved 

The court noted that the Montana statutelwas adopted from California 

and quoted from Ure v. Maggio Bros. Co., 24 Cal.App.2d 490, 75 P.2d 

"'~ut while loss of society, comfort, and protection 

may be an element of the injury sustained by the statutory 

beneficiaries, it is only the pecuniary, and not the 

sentimental, value of such loss which may be taken into 

consideration in the assessment of damages. Nothing can 

be recovered as a solatium for wounded feelings. (11 

The court quoted further from Dickinson v. Southern Pacific Co., 

11 1 It is not possible to measure in exact terms of 

money the loss which a surviving husband, wife, or 

child may have sustained through being deprived of the 

comfort and society of the deceased spouse or parent, 

For this reason, some play is allowed to the discretion 

of the jury by the provision of section 377 that such 

damages may be allowed, as under all the circumstances 

of the case may be just. But, in fixing the amount, 

the jury is always bound by the fundamental rule that 

ecuniary damage is the limit of recovery, and the 

:mount allowed must bear some reasonable relation to the 

ecuniary loss shown by the evidence ."' :Emphasis supplied') . gee also: Section 93-2810, R.C.M. 1947. 

The court further commented upon the duty of a judge to review a 

verdict and declare a verdict excessive when he conscientiously 

believes "that the jury has exceeded the bounds of propriety. I I 

Dellaripa v. New York, New Haven & Hartford R..Co., 257 F.2d 733, 

735. After noting that the evidence as to the pecuniary value of 

loss of society, comfort, protection and companionship was inadequate, 

the court concluded that any recovery in excess of $37,500 was just 

not justified. 
In two recent cases this Court considered verdicts for 

wrongful deaths of minors, Davis ---$4,000, ~rohmer---$35,000, 

but in both cases substantial evidence was introduced as to 

damages. In the instant case we have a verdict of $96,140, i 

almost three times the award in Krbhmer, for the wrongful death 

of a minor unsupported by any evidence of earning capacity, 

support to the parents, or any damage other than loss of comfort, 

society, companionship, etc. The amount of the award can be 

accounted for only upon the basis the jury (1) was not properly 

instructed, (2) was given an improper standard in oral argument 

upon which to compute pecuniary value of loss of comfort, society 

and companionship, or (3) it was actuated and motivated by passion 

or prejudice. 

The judgment is reversed and the cause remanded for a 

new trial. 

~ssociyte Justice 
We boncur: t. 

'$ .r 

.' 

; .* 

v-----------------

Associate Justices 

Mr. Justice Daly and Hr. Justice Haswell, dissenting: 

We dissent. 

The majority grant a new trial to defendant because of 

failure of plaintiffs to list the names and addresses of two 

witnesses in response to defendant's pretrial interrogatories. 

It is clear that this failure constituted a violation of pretrial 

discovery rules. It is equally clear that the names of these 

witnesses were communicated by plaintiffsf counsel to defendant's 

counsel several days before trial; that the witnesses' exact 

address was not given but only that they lived somewhere in the 

valley; and that plaintiffs' counsel furnished defendant's counsel 

with a tape of the witnesses! statements and defendant's counsel 

interviewed them and had a transcript of the statements of such 

witnesses prior to their examination at the trial. 

During the course of trial when plaintiffs called the first 

of such witnesses to testify, defendant moved to exclude the testimony on the grounds of surprise occasioned by plaintiffs' violation 
of pretrial discovery rules and requested the court to impose 

sanctions for such violation by excluding the testimony of such 

witnesses. The district court denied defendant's motion in the 

following manner: 

"THE COURT: Well, I am not going to invoke or impose 

this sanction, because I feel that this is pretty important testimony from their viewpoint. The sanction 

will not be imposed, and the motion will be denied. 

"MR. ROTH: [defendant's counsel] If your honor please, 

may we have the benefit of the use of a recorded 

statement that we have of this witness, which has not 

been transcribed as yet, and we would like the opportunity to review that testimony before her testimony 

is given, and we must cross examine. 

"MR. McKEON: [plaintiffs' counsel] We will have no 

objection to that. 

"THE COURT: All right, that may be done, and this 

witness may be called at another time. If that is all, 

then we can return to the courtroom. 

"THE COURT: All right, the record may show that the 

court is again in session, and in the presence of the 

jury. You may proceed, 

"MR.M~KEON: Your honor, as the court knows, counsel 

for the defendant have advised that they have a statement which they took this morning of Mrs. Ethel Davis, 

and which has not as yet been prepared and transcribed, 

and they would like to have the advantage of this 

statement when conducting cross examination of Mrs. 

Davis, and so we would be very happy to wait and call 

Mrs. Davis tomorrow morning, so that they will have 

the advantage of that particular statement at that time, 

"MR. ROTH: Yes, that is our position in this matter, 

if the court please. 

"THE COURT: Very well, that may be done, and the 

witness may be called tomorrow morning. 

"MR. ROTH: Thank you, your honor, and thank you, again, 

Mr. bfcKeon. I I 

Following this colloquy, no further continuance was requested. 

~efendant's counsel received his request for a day's delay in the 

examination of these witnesses. These witnesses were exhaustively 
examined and cross-examined the following day. The case was submitted to the jury in this posture without further objection by 

defendant. The jury returned a verdict for plaintiffs. 

Defendant moved for a new trial on the basis of surprise 

which ordinary prudence could not have guarded against. The district 

court denied defendant's motion for a new trial, The majority 

of this Court has reversed this ruling of the trial judge. 

Section 93-5603, R.C.M. 1947, sets forth the grounds on 

which a new trial may be granted. Subsection (3) provides for 

a new trial where the moving party was surprised by the testimony 

offered at the trial. In Hill v, McKay, 36 Mont. 440,446, 93 P. 

345, this Court set down the following criteria for granting a new 

trial on this ground: 

''iv * it is the general rule that a new trial will 

be granted'on the ground of surprise, only when it is 

clearly shown that the movant was actually surprised, 

that the facts from which the surprise resulted had a 

material bearing on the case, that the verdict or 

decision resulted mainly from these facts, that the 

alleged condition is not the result of movant's own 

inattention or negligence, that he has acted promptly 

and claimed relief at the earli-est opportunity, that 

he has used every means reasonably available at the 

time of the surprise to remedy the disaster, and that 

the result of a new trial will probably be different. 11 

These criteria were cited with approval recently in Morris v. 

Corcoran Pulpwood Co., 154 Mont. 468, 465 P. 2d 827. 

In our view a party may not secure a one day continuance 

in the witnesses' testimony to prepare for cross-examination, 

fail to request a further continuance, permit the case to be 

the 

submitted tc/jury without further objection, and after an adverse 

verdict secure a new trial on the grounds of surprise. Under ~kch 

circumstances the party seeking a new trial has not used every 

means reasonably available at the time of surprise to remedy the 

situation, one of the required criteria for securing a new trial 

on this ground. This is particularly true where, as here, the 
trial judge has denied movant a new trial under these circumstances. 

Additionally, the refusal of the trial judge to impose the 

sanction of exclusion is not an abuse of discretion here nor is 

it an independent ground for granting a 

Associate Justices