No. 12060 INTHE 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 JudicialDistrict, Honorable Nat Allen, Judge presiding. Counsel of Record: ForAppellant

### : 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 

### 11972Nr. JusticeWesley Castles delivered the Opinion of the Court,

This 

### isan 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 trialcourt for

### a new trial and forjudgment notwithstanding theverdict; both motions were denied by the trialcourt. Defendant appeals from thejudgment. In earlyMay 1969, defendant Mount Haggin Livestock Company owned approximately 600-850 head of Black Angus cattlewhich were pastured ina fenced pasture inthe Deer Lodge Valley between Galen and Anaconda, Montana, in the general proximity of Montana Highway No, 

### 273. This highway isalsoknown as the Lost Creek Highway or the Old Galen Road, The enclosure inwhich the cattle

were pastured was referred to throughout the trial as the "Peterson place",On the three days of May 

### 8 toMay 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, JimNolan and Donald Martz, who had worked for defendant during theherding operation but were employed elsewhere atthe time of trial, testified as to the facts of that herding. They established the operationhad 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 cattleturned around at the entrance to the Poor Farm Pasture towhich they were being moved, and they ran back up the road to the Peterson Placewherethey had been originally pastured. On Saturday, May 

### PO, the cowboys returned to the area and picked up the strayswhich had either been left inthe Peterson Place pasture or had "spilled back" and returned to that pasture. These cattlewere 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 inthe Modesty Gulch area, They leftAnaconda together with Norman Motland at approximately 4:00 or 5:00 p.m. Their intention Mas tohunt gophers before they went on to the area where the party

was tobe held, They arrived atthe Modesty Gulch area atapproximately 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 atthe 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 intohis lane of traffic. Yarkell, after attempting to swerve around the cow, hit it. At chis point the pickup started toroll and ended up ina 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 lyingbehind him. she called hisname and he told her to lie stilland he then went sfor assistance. Barkell left the scene of the accident, ran down lo the Poor Farm to seek help and findingnone he eventually caught

3 ride intoAnaconda. Highway Patrolman William Steiner investigated the accident. He arrived atthe scene atapproximately 2:30 to 3:00 a.m. and

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

an ambulance, he began his investigationwhich continued into the following day. The cow thatwas struckwas 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 toa directed verdict or in the alternative for ajudgment notwithstanding the verdict, for these reasons: A. Defendant owed no duty to fence inthe 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 agreewith defendant's contentions on the first issue, Plaintiffs established a prima facie case and thejury had

a right and duty toexamine the evidence and tohear the testimony %~f the witnesses. Sufficient testimony was brought before the jury toestablish a prima facie case of negligence; consequently, ?he trialcourt did not errinrefusing togrant defendant's motions. Testimony was introduced as towhether or not theherding was done in a negligent manner. Conflicts in the testimony existed, but the iury was the ultimate finder of fact. d No one willdispute that Montana isan open range state, fhis Court has many times so ruled, But, aswith every rule of law, fefinite exceptions do exist. The exception to the open range rule zxistswhen the animals inquestion are incharge of herders. This Court stated this exception inJenkins v. Valley Garden Ranch Inc.,

### 151Mont. 463, 465, 443 P,2d 753, citing from Montgomery v. Gehring, 

### 145 Mont. 278, 283, 400 P.2d 403: "'One releasinghis livestock onto lands where he has a right todo so isunder no duty torestrain them from entering another's unenclosed land. Such livestock owner 

### isnot responsible for damages occasioned by the entry of his livestock on such unfenced hand through following theirnatural instincts. 

# - The exception to this, of course, iswillful or intentional herding or driving livestock onto another's unfenced land or placing them so near that trespass 

### isbound to occur. I' ( 

## -- Emphasis supplied) In Estate of Bartsch, 149Mnnt. 405, 427 P.2d 302, the Court plainly indicated that ifan animal 

### iswillfully or intentionally driven onto the highway right-of-way a duty 

### iscreated, he breach of which constitutes negligence. Here, the testimony and evidence presented clearly indicates that Mount Haggin may have willfully, intentionally and deliberatelydriven the animals upon the highway right-of-way and leftthem there once they had escaped from the control of theherders. There isnothing in the record to indicate that actionwas taken towarn motorists of the hazard that may have been created upon the highway. In this case,

a duty may have been violated constitutingnegligence, and the trialcourt was correct inallowing it togo to thejury for final determination. Defendant's second issue on appeal 

### iswhether ornot the trialcourt erred inrefusing toexclude the testimony of plaintiffs' witnesses whose identityhad not been disclosed, despite interrogatoriesrequesting their identity. We find such refusal

was error. A basic physical fact of this case was that the accident which took the lifeof Christie Sanders occurred in the Deer Lodge Valley near the old "Poor Farmrq,and that defendant had moved a herd of cattlepast that farm, through an adjacent gate, shortly before the accident. This elementary factwas known toplaintiffs' counsel soon after they began investigation of the case.

### Plaintiffs subsequently filed their complaint alleging defendantwas guilty ofnegligently conducting a herding operation which caused the death of their daughter. Thereafter,discovery

was initiatedby counsel for plaintiffs and defendant. At the

same time,plaintiffs' counsel employed a private investigator to interviewwitnesses 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 couplewho live at the old "Poor 

## arm" andwho subsequently became keywitnesses 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 activityby 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 attorneyswho witnessed the accident, orwas 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- circumstancesupon which you base 

### your 

### allegations of: 

### "a. Negligence of 

### the Defendant,but who did not actually see the accident;

"c. Any othermatters 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 questionedby 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;

, >'t 

### "d. Whether signed or unsigned;

# * " 1I 

### "INTERROGATORY NO. 63: What is thename, last known address. present whereabouts, ifknown. of each person whom yo& 

## br anyone acting insyourbehaif, 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 immediatelyafter the same.It 

### Thenames of Ethel and Doug Daviswere 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 interrogatorieswhich plaintiffs subsequently submitted to defendant, in that Ethel and Doug Davis

were: 

### I. Personswho had "knowledge of one ormore facts or upon circumstanceshhich" plaintiffs base their allegations of "a. Negligence of 

### the Defendant", (Interrogatory No, 60). 

### 2. Personswho 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 

### (InterrogatoryNo. 

### 60) 3, 

### Personswho had "made any statements, written or otherwise,while being interviewed or questioned by 

# **

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

# * *I1,



### (InterrogatoryNo. 61). 

### 4. Personswhom plaintiffs "or anyone acting in [their] behalf, including attorneys,agents

# *** or other persons, knows



### or believes to have any relevant knowledge of the condi-tionsatthe scene of the accident existingprior 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 atthe 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 allof the witnesses they intended tocallatthe trialand the names of "all persons fromwhom statements have been taken by attorneys, agents, investigators or any other persons on behalf of the plaintiffs and specifywhether the statement 

### iswritten 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 torespond, 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 todefense counsel until the morning of the trial, The trialbegan 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 tothis disclosure, counsel forplaintiffs had issued a subpoena forEthel Davis directingher to appear and testify as a witness for the plaintiffs. Yet, a few hours later, counsel for the defense was advised that plaintiffs' counsel didnot know where she lived.The record shows the testimony of Ethel and Doug Davis came
as a complete surprise to defendant, Defense counselwere forced torely 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 firmwho had no knowledge orbackground of the

case. Neither Ethel or Doug Davis had been interviewed or deposed by counsel representing defendant prior to their actual appearance

on thewitness stand. This situationjustified and required the exclusion of the witnesses' testimony. A motion toexclude and disallow any testimony of these witnesseswas made, supported, and elaborated upon with a complete statement of the surrounding facts. The trial court was inerror torefuse this sanction for failure tomake 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 factswithin the knowledge of the parties, their "agents and representatives", As the testimony atthe 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, inher own testimony, that shehad told the investigator the same story she testified to atthe trial. Plaintiffs' counsel considered her testimony most crucial to their case, and they argued to the jury that her testimony had a directbearing on the question of whether Mount Haggin conducted negligent herding operations, Counsel fordefendant correctly cites Smith v. Babcock, 

### 157 Kont. 

### 81, 91, 482 P.2d 1014, as authority for excluding theDavis 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 thewitness inanswer toan interrogatory which requested "names and addresses of allpersons who have any knowledge or information

I I relating to the accident or 

### its cause.. Counsel for plaintiffs citeWolfe v. Northern Pac, Ry., 147Mont, 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 tomake allrelevant facts available to parties in advance of trialand toreduce the possibilities of surprise and unfair advantage 5: 

# ** cannot become a weapon for punishment or forfeiture inthehands of 

### a party, or an instrument for avoidance of a trial on the merits. 5: 

# **. l1 The rule stated inWolfe 

### isvalid and we agreewith plaintiffs' interpretation; however, inWolfe the Court also stated: "In interpreting these rules [Montana Rules of Civil Procediire] we 

### willreverse the trialjudge onlywhen hisjudgment may materially affect the substantial rights of the appellant and allow 

### a possible miscarriageof justice, II Under the factshere, 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 toobserve theherding operation of the Mount Haggin cowboys and that itwas carried on ina 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 theybelieved that cattlewere present on the highway thenight of the accident. Due to the fact that Doug Davi-shad had a series of heart attacks he was unable tocome to the courtroom, so the trialjudge ordered the juryto go eo the residence of Doug Davis and his testimony was taken inthe Poor Farm building which is located immediately adjoining the Swamp Pasture area. This Court agrees with defendant's contention that the testimony of thewitnesses Davis was crucial to the plaintiffs'

case and from the verdict returned by thejury we arecompelled tobelieve this testimony was significant to the jury during its deliberations. Since proper discovery procedures were not followed, we find the trialcourt did commit error inallowing the testimony of Ethel and Doug Davis. Counsel for defendant made three formal objections during che course of the trialinorder 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 willnow object to the additional witnesses that have been listedby the Plaintiffs, and the use of their testimony in the trialof this case, on the ground and for the reason that atthe pre-trial conference the names and addresses of allwitnesses were tobe exchanged between counsel for the parties atleast ten days prior to trial, and thiswas agreed toby the parties. Now, then, your honor, the Plaintiffs had a duty inthis case toprepare the pre-trial order, and it wasn't prepared within the time itwas supposed tohave been prepared, and so the names of these witnesses comes as a complete surprise to the Defendant, your honor, at this latedate, forwe 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 atthe time Mrs. Ethel Davis was about to testify: "MR. ROTH: May it please the court, Comes now the Defendant, Mount Haggin Livestock Company, inthe cause now being triedbefore this court, and respectfullymoves 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 interrogatorieswere propounded to the plaintiffs on November 21st, 1969, among which interrogatorieswere the following: Interrogatory Number 59: Give the names, addresses, placesof employment, home and business telephone numbers, job titles, and capacities, and lastknown whereabouts of: (a) any person known toyou, your agents, employees, or attorneys, who witnessed the accident, orwas inits vicinitybefore, atthe time of, orjust after 

### its occurrence. Interrogatory Number 60: What isthename 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 todamages or causation. Interrogatory Number 61: Have any persons made any statements, written or otherwise, while being interviewed or questionedby you, or on your behalf, including your attorneys, insurance adjuster, agents or representatives of your attorneys, inconnectionwith the accident complained of. Interrogatory Number 62: If so, for each statement, indicate: (a) thename, address, occupation, and relationship to you, of the person taking it; (b) the date of making; (c) whether signed orunsigned. InterrogatoryNumber 63: What is the name, lastknown address, present whereabouts, ifknown, of each person whom you, or anyone acting on your behalf, including attorneys, agents, insurance adjusters, or other persons, knows orbelieves tohave any relevant knowledge, of the conditions atthe scene of the accident, existingprior to, at, or immediately after the same, (2) that answers tothese interrogatories were received by the defendant on January 

### 23, 1970, but thatnowhere inthe 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 identityof 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 saidMr. Daniel Jancic, the employee and agent of the attorneys for the plaintiffs, and the man who investigated the accident forWade J. Dahood, and his firm, and that Mr. Jancic advised that he interviewed Mrs. Ethel Davis, and saw Doug Davis, attheir farm, approximately one month after the accident, and, again, approximately four months after the accident, and that ateach 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, ina conversation between Donald C. Robinson and David L. NcLean, Mr. Robinson asked for the address of Mrs. Ethel Davis, and was advised inresponse to that inquiry that she lived 'somewhere out inthevalley. 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 untilTuesday, October 27tI;, 1970, and, of course, up tothat 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 topersonally interview saidwitnesses,nor tocarefully interrogate thesewitnesses on the stater~ents that they had given toE4.r. McICeon; 

### (7) further, they would not have an opportunity to investigate the backgrounds of thesewitnesses to determine what animosity, if any, they held toward fdiount Haggin Livestock Company, or any of itsemployees. (8) that they would not have an opportunity toprepare 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 toWade J. Dahood ator shortly after the time he originally interviewed them. (10) that the Montana Rules of Civil Procedure, upon which the Montana Rules of Civil Procedure arepatterned, require full and complete disclosure of allinformation requested ininterrogatories 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 isa 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 ismost appropriate under these circumstances. II 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, indetermining 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 torespond 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 therewas absolutelyno excuse for their failure to name Ethel and Doug Davis inresponse to interrogatories, and that their testimony should be completely disregarded inruling on the motion for directed verdict. This third objectionwas also denied. From this record, isclear that defendant's counsel took every opportunity to object to the Davis testimony. Allthese objections, even though well taken, were denied by the trial court. Mr. Roth did allthat a counsel could do under the circumstances to exclude the Davis testimony. He correctlybelieved that any further objectionwould hinder his client's case; therefore, he decided toraise this error on 

### appeal. This Court 

### willcorrect Chis error. A new trial

### is ordered.In conclusion, we believe itnecessary tomention one other issue. Since this case isbeing remanded for a new trial, it isnot riecessary LLOfully develop the issue, however, itdoes merit some discussion. That issue isdamages. The jury returned a verdict inthe amount of $96,140. This Court finds a strong possibility exists that the amount was excessive, In the record there isno evidence that Christie Sanders would have remained inthe Anaconda area after graduation from high school; no evidence was introduced as towhat her future plans were so far asresidence or school; there

was no evidence offered that shehad ever given her family any pecuniary support or that she was motivated in that direction; and, very littleevidence was offered as to the relationshipbetween her and her parents. The paucity of evidence as to damages indicates

a strongpossibility the verdict was prompted by passion and prejudice; or, the jury was improperly instructed as to the proper criterion of damages. InWyant v. Dunn, 140 Mont. 181, 368 P.2d 917, the Court recognized the universal rule that damages inthis type of action

are firstpresented to the sound discretion of the jury, then reviewed by the trialjudge, who must set aside or modify the verdict on a motion for a new trialif the amount of the verdict is not just. Only inrare cases should a decision bereversed where the trialjudge and thejury agree that the verdict isproper. The present factual situation suggests a strongpossibility that this is such a case. InMontana in a wrongful death action, such as this, dzmages asunder allthe 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, 152Mont. 170, 448 P.2d 133.Nevertheless, though the amount of damages 

### is solelywithin the province of thejury, thejury 

### isnot given carteblanche. Some substantial evidence must existupon which the award of $96,140

can be predicated. InMiller v. Boeing Company, (D.C.Mont.1965) 245 F.Supp. 178, Judge Jameson, applyingMontana law, concluded that a verdict of $52,700 toplaintiff widow forthewrongful 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 sustainedby the statutory beneficiaries, itisonly the pecuniary, and not the sentimental, value of such losswhich may be taken into consideration inthe assessment of damages. Nothing can be recovered as a solatium forwounded feelings. (11 The court quoted further from Dickinson v. Southern Pacific Co.,

111It isnot possible tomeasure inexact terms of money the losswhich a survivinghusband, wife, or childmay have sustained through being deprived of the comfort and society of the deceased spouse or parent, For thisreason, some play 

### isallowed to the discretion of the jury by the provision of section 377 that such damages may be allowed, asunder allthe circumstances of the case may be just. But, infixing the amount, thejury isalways bound by the fundamental rule that

ecuniary damage is the limitof 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 toreview a verdict and declare a verdict excessivewhen he conscientiously believes "that the jury has exceeded thebounds of propriety. II 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 inexcess 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 inboth cases substantial evidence was introduced as to damages. In the instant casewe have a verdict of $96,140,

i almost three times the award inKrbhmer, for thewrongful 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 thejury 

### (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) itwas actuated and motivated by passion

or prejudice. The judgment isreversed and the cause remanded for a
new trial.

~ssociyte JusticeWe boncur:

t.'$ .r .'

; .*



# v------------------------------- Associate Justices



### Mr. Justice Daly and Hr. JusticeHaswell, dissenting: We dissent. Themajority grant a new trial to defendantbecause 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 ofpretrial discovery rules. It is equally clear that the names of these witnesseswere communicatedby plaintiffsfcounsel to defendant's counsel several days before trial; that thewitnesses' exact addresswas not givenbut 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 trialwhen plaintiffs called the first of suchwitnesses to testify,defendantmoved to exclude the testimony on the grounds of surprise occasionedby plaintiffs' violation

### of pretrial discovery rules and requested the court to impose sanctions for suchviolation by excluding the testimony of such witnesses. The district court denied defendant's motion in the followingmanner: "THE COURT: Well, 

### Iamnot going to invoke or impose this sanction, because 

### I feel that this is pretty important testimony from theirviewpoint. The sanction will not be imposed,and the motion willbe denied. "MR. 

### ROTH: [defendant's counsel] Ifyourhonor please, may wehave the benefit of the use of a recorded statement thatwe have of thiswitness, which has not been transcribed as yet, and wewould like the opportunity to review that testimonybeforeher testimony is given, and we must cross examine. 

### "MR. McKEON: [plaintiffs'counsel] We will haveno objection to that. "THE COURT: All right, that may be done, and this witness may be called at another time. If that is all, thenwe canreturn 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. Youmay proceed, "MR.M~KEON: Your honor, as the court knows, counsel for the defendanthave advised that they have a statement which they took this morning ofMrs. Ethel Davis, and which has not as yetbeen prepared and transcribed, and theywould like to have the advantage of this statementwhen conducting cross examination ofMrs. Davis,and sowewould be very happy to wait and call Mrs. Davis tomorrow morning, so that theywillhave 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 tomorrowmorning. "MR. 

### ROTH: Thank you,yourhonor, and thank you, again, Mr. bfcKeon.II 

### Following this colloquy, no further continuancewas requested. ~efendant'scounselreceived his request for a day's delay in the examination of these witnesses. Thesewitnesses were exhaustivelyexamined and cross-examined the following day. The casewas submitted to thejury inthis posturewithout further objection by defendant. The jury returned a verdict for plaintiffs. Defendant moved for a new trial on the basis of surprise which ordinaryprudence 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 trialjudge. Section 93-5603, R.C.M. 1947, sets forth the grounds on which a new trialmay be granted. Subsection (3) provides for

a new trialwhere the moving party was surprisedby the testimony offered atthe trial. InHill

### v, McKay, 36 Mont. 440,446, 

### 93 P. 345, this Court set down the following criteria for granting a new trialon 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 fromwhich the surprise resulted had 

### a materialbearing on the case, that the verdict or decisionresulted mainly from these facts, that the alleged condition 

### isnot the result of movant's own inattention ornegligence, that he has acted promptly and claimed relief atthe earli-est opportunity, that he has used every means reasonably available atthe time of the surprise toremedy the disaster, and that the result of a new trial

### willprobably be different. 11 These criteriawere citedwith approval recently inMorris v. Corcoran Pulpwood Co., 154 Mont. 468, 465 P.2d 827. In our view a party may not secure a one day continuance in thewitnesses' testimony toprepare for cross-examination, failtorequest a further continuance, permit the case tobe the submitted tc/jury without further objection, and afteran adverse verdict secure a new trialon the grounds of surprise. Under ~kch circumstances the party seeking a new trialhas not used every
means reasonably available atthe time of surprise toremedy the situation, one of the required criteria for securing a new trial

on this ground. This 

### isparticularly truewhere, ashere, 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