No. 83-300 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1984

JON ERIC ELIASON, Plaintiff and Respondent,

-vsDONALD E. WALLACE, Defendantand Appellant.

APPEAL FROM: DistrictCourt of theFourth Judicial District, Inand for the County of Missoula, TheHonorableJohn S. Benson,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: 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:

ClerkMr. Justice L. C. Gulbrandson delivered the apinion of the Court.This case comes on appeal from a judgment of the FourthJudicialDistrictCourt, 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 leftthe Cozy Court Trailer Park inLolo, Montana

on his 1980 Yamaha motorcycle. Plaintiff's motorcycle had

an automaticturn-on headlightwhich could notbe turned off

aslong astheenginewas inan "on" position. After leaving the trailer court, the plaintiff proceeded north on Highway 93. Atthe same time, defendant

was proceeding southon Highway 93 ina 1953Volkswagon. 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 drivingwithin theposted speed limit. Wierson issued

a citation to defendant for failure tomake 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, beforethe court sittingwithout 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 toyield toplaintiff constituted gross negligence and awarded plaintiff $4,346.51 in compensatory and punitive damages plus costs. The District Court also found that plaintiffwas notnegligent. From the order of theDistrict Courtdefendant appeals raising four issues. Initially, appellant argues the District Court erred in itsdecisionbecause theweight 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), 155Mont. 412, 473 P.2d 541; Cameron v. Cameron (1978), 179Mont. 219, 587 P.2d 939. AsthisCourt statedinCameron: "A1though con£licts may exist in the evidencepresented, it is thedutyof 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, 179Mont. at227. Indetermining whether thetrialcourt's findingswere supportedby substantial evidencewemust view the evidencein 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 uponwhich theDistrict Courtbased itsdecision. Next, the appellant asserts the District Court erred in awarding respondent punitive damagesbecause therewas 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 notnecessary 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.rdfor presumed malice this Court recently set forth in Owens v. Parker Drilling Co. (Mont. 1984),No. 83-172. In Owens, thisCourt said: "When a person knows or has reason to know of factswhich 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 unreasonabledisregard 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 impositionofpunitive damages on thebasis of presumedmalice." 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 notmissmore thanone day from work because he had scheduled two weeks vacation time prior to the accident and he used that time torecuperate. Accordingly, the District Court's computation of lost wages was reasonable and supported by the record. Likewise, theDistrict Court's decision to award $2,500 for pain and suffering was proper. Montana law requires only that the trier of factexercise 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), 664P.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 forpain 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 realparties 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 sowe cannotnow consider itsmerits. ~fpfrmed. $2'We concur:

Justices

Mr. Justice Daniel J. Sheawill filea special concurrence at a later time.