No. 83-300 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JON ERIC ELIASON, 

Plaintiff and Respondent, 

-vsDONALD E. WALLACE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Benson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tipp, Hoven, Skjelset & Frizzell, P4issoula, Montana 

For Respondent : 

Kristine Davenport, Missoula, Montana 

Mulroney, Delaney & Dalby; P. Mars Scott, Missoula, 

Montana 

.--- 

Submitted on Briefs: January 19, 1984 

Decided: April 30, 3984 

Filed: 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the apinion of the 

Court. 

This case comes on appeal from a judgment of the 

Fourth Judicial District Court, Missoula County, finding the 

defendant liable to the plaintiff for property damage, 

medical costs, lost wages, pain and suffering, punitive 

damages and costs. We affirm. 

At approximately 10:20 p.m. on June 20, 1980, the 

plaintiff left the Cozy Court Trailer Park in Lolo, Montana 

on his 1980 Yamaha motorcycle. Plaintiff's motorcycle had 

an automatic turn-on headlight which could not be turned off 

as long as the engine was in an "on" position. 

After leaving the trailer court, the plaintiff 

proceeded north on Highway 93. At the same time, defendant 

was proceeding south on Highway 93 in a 1953 Volkswagon. As 

the vehicles approached the Circle K store in Lolo, 

defendant made a left hand turn crossing in front of 

plaintiff's path. When the plaintiff swerved to avoid 

hitting defendant's vehicle he lost control of his 

motorcycle and crashed sustaining personal and property 

damage. 

Montana Highway Patrolman James Wierson immediately 

investigated the accident and concluded that plaintiff had 

been driving within the posted speed limit. Wierson issued 

a citation to defendant for failure to make a proper left 

turn. 

On November 14, 1980, plaintiff brought an action 

against the defendant alleging defendant was negligent and 

liable for personal and property damage arising out of the 

accident. The matter was heard on January 4, 1983, before 
the court sitting without a jury and on March 8, 1983, the 

court rendered its decision. Based upon the testimony and 

exhibits of both parties the District Court found that the 

defendant's failure to yield to plaintiff constituted gross 

negligence and awarded plaintiff $4,346.51 in compensatory 

and punitive damages plus costs. The District Court also 

found that plaintiff was not negligent. 

From the order of the District Court defendant appeals 

raising four issues. 

Initially, appellant argues the District Court erred 

in its decision because the weight of evidence indicated the 

plaintiff was solely or comparatively negligent in the 

accident. 

Although there was conflicting evidence surrounding 

the facts of the accident, our function in reviewing 

findings of fact in a civil action tried by the District 

Court without a jury is not to substitute our judgment in 

place of the trier of facts but rather it is confined to 

determining whether there is substantial credible evidence 

to support the findings of fact and conclusions of law. 

i-lorning v. Estate of Lagerquist (1970), 155 Mont. 412, 473 

P.2d 541; Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 

939. As this Court stated in Cameron: 

"A1 though con£ licts may exist in the 

evidence presented, it is the duty of the 

trial judge to resolve such conflicts. 

His findings will not be disturbed on 

appeal where they are based on 

substantial though conflicting evidence, 

unless there is a clear preponderance of 

evidence against such findings." 

Cameron, supra, 179 Mont. at 227. 

In determining whether the trial court's findings were 

supported by substantial evidence we must view the evidence 
in the light most favorable to the prevailing party. 

Hellickson v. Barrett Mobile Home Transport, Inc. (1973), 

161 Mont. 455, 507 P.2d 523. Substantial evidence is 

evidence such as will convince reasonable men and on which 

such men may not reasonably differ as to whether it 

establishes the prevailing party's case, and, if all 

reasonable men must conclude that the evidence does not 

establish such case, then it is not substantial evidence. 

Staggers v. USF & G (1972), 159 Idont. 254, 496 P.2d 1161. 

The evidence may be inherently weak and still be deemed 

"substantial" and substantial evidence may conflict with 

other evidence presented. Campeau v. Lewis (1965), 144 

Mont. 543, 398 P.2d 960. Moreover, Rule 52(a), M.R.Civ.P. 

provides, in part, the "[flindings of fact shall not be set 

aside unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the 

credibility of the witnesses." 

The record before us indicates substantial evidence 

upon which the District Court based its decision. 

Next, the appellant asserts the District Court erred 

in awarding respondent punitive damages because there was no 

showing that appellant acted with malice. 

In awarding respondent punitive damages the District 

Court found that appellant's failure to yield to oncoming 

traffic constituted gross negligence and recklessness. 

Appellant has not demonstrated by a clear preponderance of 

the evidence that the District Court's finding was clearly 

erroneous. Accordingly, the award of punitive damages was 

proper. In Harrington v. Holiday Rambler Corporation 

(1978), 176 Mont. 37, 575 P.2d 578, we held that it is not 
necessary to show actual malice to recover punitive damages. 

The trier of fact may take into account whether the acts 

complained of are "of such a character as to indicate a 

reckless disregard of the rights of the plaintiff" in 

awarding punitive damages. Butcher v. Petranek (1979), 181 

?rMont. 358, 593 P.2d 743. Moreover, the District Court's 

findings meet the standa.rd for presumed malice this Court 

recently set forth in Owens v. Parker Drilling Co. (Mont. 

1984), No. 83-172. In Owens, this Court said: 

"When a person knows or has reason to 

know of facts which create a high degree 

of risk of harm to the substantial 

interests of another, and either 

deliberately proceeds to act in conscious 

disregard of or indifference to that 

risk, or recklessly proceeds in 

unreasonable disregard of or indifference 

to that risk, his conduct meets the 

standard of willful, wanton, and/or 

reckless to which the law of this State 

will allow imposition of punitive damages 

on the basis of presumed malice." 

The appellant also argues the District Court erred in 

measuring respondent's damages because the amounts awarded 

for lost wages and for pain and suffering were inconsistent 

with the evidence presented at trial. Specifically, 

appellant asserts it was an error to award respondent $463 

in lost wages because respondent testified he only made $56 

per day and only missed one day of work as a result of the 

accident. In addition, respondent maintains that the 

District Court erroneously awarded respondent $2,500 for 

pain and suffering because there was no objective evidence 

substantiating the damages. 

The record shows respondent did not miss more than one 

day from work because he had scheduled two weeks vacation 

time prior to the accident and he used that time to 
recuperate. Accordingly, the District Court's computation 

of lost wages was reasonable and supported by the record. 

Likewise, the District Court's decision to award $2,500 for 

pain and suffering was proper. Montana law requires only 

that the trier of fact exercise calm and reasonable judgment 

in determining an award of damages and the amount of the 

award rests in the sound discretion of the trier of fact. 

Jarussi v. Board of Trustees of School Dist. No. 28, Lake 

County (Mont. 1983), 664 P.2d 316, 40 St.Rep. 720. Moreover, 

in Cremer v. Cremer Rodeo Land and Livestock Co. (Mont. 

1981), 627 P.2d 1199, 38 St.Rep. 574, we said that a 

recovery of damages will not be denied, even if the 

mathematical precision of the figure is challenged, provided 

the evidence is sufficient to afford a reasonable basis for 

determining the amount awarded. Here the record afforded 

the District Court a reasonable basis for awarding 

respondent $2,500 for pain and suffering. 

Finally, appellant argues that respondent should not 

have recovered for damages that were partially paid by 

respondent's insurance companies because respondent was not 

the real party in interest and appellant would be exposed to 

multiple lawsuits. At trial, appellant had ample 

opportunity to object that all real parties in interest had 

not been joined and compel respondent under Rule 17, 

M.R.Civ.P., to join as necessary parties any insurance 

companies who were subrogated to respondent's loss. 

Moreover, appellant raises this issue for the first time on 

appeal so we cannot now consider its merits. ~fpfrmed. 

$2' 
We concur: 

Justices 

Mr. Justice Daniel J. Shea will file a special 

concurrence at a later time.