*1 unprejudiced jury. judge, before an unbiased and Tbe district matter after this was submitted to' him felt that could have she county trial where she resided and had lived her life and therefore denied motion. we are of the same Since opinion discretion, and fail to discern abuse of the order is affirmed.
MR. JUSTICES ANGSTMAN and CASTLES concur. specially concurring: MR. ADAIR and JUSTICES BOTTOMLY In our this court’s McGillvray, decision McGraff v. 478, (2d) 135 Mont. 256, (2d) 736, 342 Pac. is here controlling. yet While we dissented in the McGraff case, we decisis, to the doctrine of bow stare and therefore on this in the foregoing concur result reached in opinion. additionally MR. specially JUSTICE BOTTOMLY concurring: specially addition foregoing concurring opinion, In I direct attention to fact this court has nullified the providing change statute for a of venue which was one of the three Fair Trial for people Laws which the fought this state years many finally, year 1903, Special in a Extraordinary Legislature, Session of the Laws 2d Ex. Sess., 2,c. obtained. DASINGER, SR.,
MATH Plaintiff and Appellant, ANDERSEN, CORA INGLIS Respondent. Defendant No. 9917. Submitted November 1959. Decided December 1959. *2 Damages, C. J. S. See § Habedank, Sidney, Cumming, & T.
Brattin, Habedank Otto orally. appellant. argued T. Habedank for Otto Cresap, Sidney, & for Cresap, respondent. Sanders Paul H. argued orally. Cresap Paul H.
MR. CHIEF JUSTICE HARRISON: brought damages by action to
Plaintiff this recover sustained crossing reason of fall. It was while was Montana, pedestrian Sidney, crosswalk, a street in on the he was negligently defendant, struck driven automobile thereby to the street. thrown prayed for general $17,- Plaintiff the amount of special damages 500 and $365.25. amount of Trial had and plain- rendered verdict for the allowing $1,000 tiff, general damages special and $365.25 damages. *3 denying plaintiff’s
From an order trial, motion for a new awarding judgment $1,365.25 and costs, plain- and appeals. tiff
Many plaintiff’s assignments of of error relate the giving dealing or refusing instructions negligence, contributory with or negligence, application a city ordinance. 93-3909,provides R.C.M. section that no shall by be reversed or affected reason of error does not which rights parties. affect the substantial of the This statute com disregarded mands that error be unless it affects substantial rights, giving an and erroneous instruction will be disre garded it Maynard where does affect the City verdict. 117 Helena, 402, 410-412, Mont. 484. Since the only instructions involved deal with affecting ques matters liability, their adoption tion of or refusal could preju not have jury since the diced found in his favor on that Therefore, issue. these instructions be will not further con sidered. an give that the court refused assigned error is also
It injuries in which set forth his by plaintiff offered instruction by refusal the complaint, and that detail as complete all jury a statement of submit failed to in the case. the issues approximately pages seven an instruction
Plaintiff offered every allegation substantially each and set forth length which of defendant’s answer. along the substance with complaint his allegation plaintiff’s instruction was proposed this Included great particularity, and sustained, drawn with injuries he pages length. Defendant’s one-half and two approximately it instruction, on the that was too objection this statement of the issues was Defendant’s sustained. lengthy, was in this instruction was the No. 1. Included Instruction given as following:
‘‘ proximate alleges a that as direct and further The alleged, plaintiff as herein negligence of defendant’s result hand, the left a severe contusion of the abrasion of an suffered knees, laceration of both and shoulder, a contusion left surgical neck head of the left fracture of impact ’’ humerus. statement insufficient place that this Plaintiff claims damages and that therefore issues as to before having a fair trial on prevented from these wrongfully he was issues. provides issues 93-4905, of fact must 1947, section
R.C.M. A is waived. “trial jury, unless tried be to, of fact all material issues be submitted jury” requires jury. Beaudry, Best v. Mont. by, the determined that a require 240. But does statement this 489, *4 pleadings given. must be Paxton the as issues defined 215, Rep. Am. Woodward, 195, 416; 78 Pac. St. 31 Mont. v. 94 Mont. Stagg, Wise the aforementioned statement being given as
In addition damages, damages were the issue the instructed on 22 and 23. Instructions Instruction 18 states: assessing
“You are that in damages plain- instructed for the tiff, you find, you if so should such assess amount as will actually compensate following: for the special damages
“1. expenses For for reasonable doctors, expenses hospitals, and other in connection therewith to this exceeding date sum not Sixty-five Three Hundred ($365.25). Dollars 25/100
“2. general damages For sustained includ- ing pain, suffering, temporary permanent injuries and dis- ability exceeding not the sum of Seventeen Thousand Five Hun- ($17,500.00).” dred Dollars
Instruction states: every “You are instructed that person who detriment suffers from the unlawful act or amission of may another recover from person involved, a compensation therefor money, which is called damages. Detriment loss is a harm per- or suffered in property. son or For the breach of obligation an arising contract, damages measure is amount which will compensate the detriment proximately thereby, caused whether it could have been anticipated or not.” 23 states:
Instruction you “You are instructed that if plaintiff, find for the Math Sr., Dasinger, determining then in damages, any, you if are injuries, give personal any, him for his if he received as set complaint, you take out must into consideration that these damages their are in nature somewhat uncertain estimate, imposes upon duty but the law of endeavoring truly fairly determine what amount money will com- injured pensate person and it necessary expressed shall witness have as to the amount. assessing any, if damages, personal “In for such injuries, any, you may award him if in such sum in *5 reasonably compensate for tbe fairly and
your judgment will you determining and the injuries has received he injuries, permanency the the of such may consider extent to abilities, if physical any; impairment plaintiff’s of the if the injuries, any. if suffering by such pain and caused any, and the plaintiff present that direct require “The does not the law reasonably money the amount of which would show evidence to injuries personal plaintiff the has received. compensate for the necessary jury extent of show the the the All that is to to is they injuries, any, proximately and were caused the 'if that jury then defendant, is for the to determine negligence of the it ought plaintiff the of which to be awarded there- amount prayed for in that for, exceeding the behalf.” amount complained of and of the injuries the Evidence of jury. think was before the We that resulting disabilities plaintiff’s extent given, instruction the issue of the under the resulting therefrom was before the injuries the disabilities and deprived jury of a trial thereof. jury plaintiff that was and disposed the specification of error be of raises The last denying plaintiff’s erred in mo- question of whether the trial that the evidence does not for a new on tion in- verdict, words, in other was or, award sustain the adequate. years
Here, plaintiff age at the the evidence is accident, years. had been retired for about three time and retained interest salary, partnership but He received no laundry his cleaning business with three of sons. He stated and enjoyed doing shop, his retirement certain work since he suits, being and measurement for and since he retired alterations he work he did was he liked to do and not what had inability estimated business loss reason to do. He of his $1,000, things he had theretofore done to be to do occasional being fourth, profits it amount loss interest one would to a his personally $250. As a result of the accident he received injuries resulting pain stated and suf- as hereinbefore fering, though spent he days hospital but three and made approximately physician sixteen office calls his for treatment.
While contends given by jury the award is inadequate,it must be remembered that judge the district had the hearing benefit observing and other witnesses and we cannot substitute our that of the unless appears it that the grossly award so out of proportion injury received as to shock the con *6 here, science. The award under the fact situation existing, does not “shock the conscience.”
For the reasons judgment stated the is affirmed.
MR. JUSTICES ADAIR and CASTLES concur. MR. JUSTICE ANGSTMAN concurring specially:
I concur in think foregoing said in the opinion, but I to be consistent the court should the majority overrule Byers, Seibel v. Mont. necessarily
There is implied holding in the Seibel ease that a is not divisible so that this may consider question liability in a separate tort action apart question damages. I think wrong the court was case, pointed as I out my dissenting opinion therein. It seems to me now that the court is considering the separately two issues they may and as if be di- separate vided for consideration, contrary majority opin- ion in the Seibel case. MONTANA,
STATE OF on Rel. Executive Committee Negotiating INTERNA Joint Committee WORKERS, MINE, TIONAL OF MILL UNION & SMELTER unincorporated association, Salvas, irm Ernest Cha Barney Ray an, Powers, Secretary, Maurice Rask, Graham, Mike Tursich Dickson, Tom members there