*1 DERENBERGER, Raymond RITA ad litem of Guardian Respondent, Derenberger, minor, v. Plaintiff and LUTEY, Defendant Appellant. HURBERT JOHN No. 82-324.
Submitted March 1983. Decided Nov. 1983.
MR. CHIEF JUSTICE HASWELL delivered the *2 of the Court.
Appellant Lutey County appeals Lodge Hurbert a Deer respondent, jury awarding Raymond Derenberger, verdict damages $110,000 in he suffered in an automobile accident. Respondent riding passenger as in his own vehicle was a appellant driving. which the was We reverse and remand. Ray Derenberger, Lutey On Hurb and November They girlfriends their in Anaconda. drove went to movie Ray’s Ray, during movie, Hurb vehicle. Prior to and girls approximately eighteen and one of the consumed Ray p.m., over, At about 10:00 before the movie was beers. Initially, purchase and Hurb left the theater to more beer. request, relinquished Ray upon however, drove; he Hurb’s testimony indi- There was control of the vehicle to Hurb. cating Ray car] [the it would told Hurb to “see what through they quite going fast do.” were Hurb testified that town. through traveling Street, a 25 down Park vehicle was per
m.p.h. approximately hour. The zone, 55 to 60 miles at grade on a tracks that were laid car crossed some railroad causing higher somewhat, Street, to raise the car than Park possibly ground. of the ve- Hurb lost control even leave the time hicle, East Park. At the house on 1100 and it struck a dry indicates accident, the record the road was good condition. that the car was Ray brain accident, suffered a severe As a result of the damage, organic fa- broken brain concussion which caused scrapes leg bones, arm, several a broken a broken cial driving pleaded guilty while intox- to lacerations. Hurb Ray accident the time of the and was fined At $300. icated years nineteen. old and Hurb was was sixteen Ray guardian Ray’s brought ad an action for mother reckless, alleged litem. She willful and gross, that Hurb’s in driving Ray’s caused vehicle injuries. trial,
At Ray’s lawyer introduced evidence that Hurb had pleaded guilty separate charges to two “endangering welfare by supplying intoxicating of children” them with limine beverages. pre- Hurb’s counsel made a to motion vent admission this on of irrele- grounds evidence motion, prejudice. response vance and Ray’s coun- sel stated: Honor,
“Your we are asking case. The put two incidents I wish evidence through if independently cross-examination he admits the De- fendant month one earlier been buying had arrested for in- toxicating beverages underage years for an girl, some age, and in plead an He automobile. that offense and was $75.00. fined Approximately one month after this accident, when obviously purchased he intoxicating bever- ages minor, with, for a he again charged convicted and *3 plead guilty to the I same offense. the submit Court that under the criteria which relate to and material the facts which relate the punitive issue of damages, that the ac- tions of the Defendant the in question on both occasion like conduct are close enough time to show effect total disregard type for the engaged of conduct he that i.e., minor, evening, purchasing intoxicating beverages for a is relevant going on that issue as to the of damages amount and the willfulness and wantonness of that conduct on that particular evening.”
The motion was the defined and evidence was admitted.
By special verdict jury guilty the found that Hurb was Ray willful or They found that misconduct. also was contributorily negligent percent. in the amount However, if the court the jury instructed that Hurb’s mis- wanton, ordinary contributory conduct was or negli- willful (Instruction 14). gence Ray’s recovery would not reduce No. Thus, $100,000 jury the awarded total $10,000 in punitive damages. issues for Lutey brings appeal
Hurb this and raises two our consideration: jury
1. Was it error for the District Court to instruct the by his that should not be reduced respondent’s recovery willful appellant if the contributory negligence or wanton misconduct? the admis-
2. Was it error for District Court to allow pleas to regarding appellant’s guilty sion of evidence charges liquor to minors? supplying by in- Court erred
Lutey argues first that the District recovery could not be structing jury Derenberger’s they if found contributory negligence by reduced his own He contends Lutey willful or wanton misconduct. guilty of comparative negli- legislative enactment of the thus, rule; Derenberger’s own gence doctrine abolished recovery. Support should reduce his all-or- harshness of the for this is found the fact that comparative negli- nothing rule has been eliminated damages, Further, can recover gence. plaintiffs negligence. their own cannot be reduced distin- always has Derenberger asserts that Montana willful or wanton ordinary from guished gross negligence in the Hence, “negligence” of the word misconduct. the use legislature that the statute indicates comparative negligence plaintiff’s comparison not intend a between did plaintiff’s reduce misconduct and defendant’s willful recovery. statute does comparative negligence
We hold that ordinary negligence comparison between contemplate a misconduct. willful or wanton mandates comparative negligence statute as it recovery long so does not bar *4 However, his re- than that of the defendant. greater
is not Sec- contributory negligence. by own covery is reduced his 27-1-702, statute reads: MCA. The tion in an ac- recovery not bar “Contributory negligence shall to recover representative any legal or his person tion per- injury in death or resulting negligence for not than greater if such property negligence son or sought, recovery whom negligence person against propor- any damages but allowed shall be diminished person to the tion to the amount of attributable recovering.” 1-1-204(4), of in Section
The definition is found MCA, which reads: “ ‘Neglect’, ‘negligence’, ‘negligently’ de- ‘negligent’, probable note a or con- want the attention to the nature sequences prudent man would the act or omission that ordinarily give acting his own concerns.” hand, “willfully” On the other the term has a different 1-1-204(5), It is meaning. defined Section MCA: “ ‘Willfully’, applied when to the intent with which an act omitted, is done or purpose willingness denotes a to com- mit the act or make the omission referred to. It does not require law, another, intent injure violate the or to acquire any advantage.”
Furthermore, 27-1-701, MCA, separately Section estab- lishes negligent that one is liable for willful acts as well as acts. The statute reads:
“Everyone responsible only of his for the results willful acts but also for an occasioned to another injury his ordinary want of management care skill property person except willfully as the latter has so far or by ordinary upon want of brought injury care himself.”
The defense change clause of this statute does not our deci- sion as interpret comparison plaintiff’s we it to limit a acts only when defendant has committed acts of a similar 27-1-701, MCA, kind. accompanied When Section contribu- tory negligence, plaintiffs ordinary this Court held that a recovery injuries would not bar misconduct. Wollas- from the defendant’s willful or Burlington Northern, ton v. Inc. (Mont. 1980), P.2d *5 6
1277,
Mallory
v. Cloud
1015;
37 St.Rep.
(1975),
167 Mont.
115,
v. Butte
1270;
535 P.2d
Railway Co.,
Mihelich
Electric
et al.
(1929),
604,
Further,
Mont.
The
Supreme
Nevada
interpreted
Court
“gross
term
negligence” in Nevada’s comparative
negligence statute
Davies v.
Butler
(1979),
763,
They
Nev.
negligence and willful and wanton misconduct are different kind, rather than degree. Consequently, we find that legislature did not they compared intend that be under Montana’s negligence statute.
This Court
distinguished
has
the two terms on several oc-
casions. In Cashin v.
Railway
Northern
Co.
(1934),
Pacific
92,
862,
96 Mont.
we were to determine whether the
evidence of
provided
the case
exemplary
a basis for
dam-
ages. Finding
did,
it
we
that “. . . in
juris-
concluded
diction something more than
must
gross negligence
be
award;
is,
shown in
justify
order to
such an
that
the act
willful,
must be wanton ...
or
or
the designation
warrant
Mont,
of that act as malicious.” 96
at
Other
have come to a similar conclusion.
personal
Supreme Court held that
injury
Oregon
action the
kind,
merely degree,
misconduct
is different
from
ordinary
gross negligence.
It further concluded
liability
one
subject
wanton misconduct
greater in scope
applies
negligent per-
than that which
Falls v.
sons,
negligence is no defense.
*6
Mortensen
(1955),
207 Or.
In a
death
wrongful
against
City
action
Washington Supreme Court found that willful or wanton
misconduct does not arise out of
and thus is not
negligence
City
Adkisson v.
within
meaning
negligence.
of the term
Seattle
.“. . Negligence imply radically and willfulness different mental states. in- Negligence conveys neglect the idea of advertence, distinguished premeditation from or formed intention. An act danger into which and will- knowledge fulness enter is not negligence any degree, but is willful misconduct. long As as the remains element of inadvertence conduct, it is properly regarded willful. [sic] nature, Wanton positive misconduct while mere Pros- distinguishes ser concepts culpability. defining the two willful, conduct, states, “(t)hey and reckless he have grouped been together negligence, as an form of aggravated differing in quality degree ordinary rather than lack from care.” W. (4th 1971). Torts Sec. 34 at 184 Prosser, Ed. added.) (Emphasis authority persuasive
We find the above in and further dication that willful or wanton misconduct is different kind from negligence. negligence compara The term tive negligence or wan encompass statutes does not willful ton misconduct and an action based on such conduct comparative negligence inapplicable statute is and the plaintiffs contributory own should not reduce recovery. Comparative Negligence, Schwartz, § V. 5.3 at (1974). comparative negligence,
Prior to the enactment of Mon- clearly contributory negligence tana followed the rule that recovery injuries of the is no bar to his caused by willful or wanton misconduct of the defendant. Wollas- Burlington supra; Mallory Northern, Inc., ton v. Cloud, v. supra; Railway supra. Co., Mihelich v. Butte Electric Since comparative negligence was established to ameliorate the contributory negligence harshness defense, we believe allowing assertion of the defense under the statute prior compar- when it would be no defense to enactment of legislative purpose. ative would thwart supra, pre- Schwartz, Sec. 5.3 at 107. This same rationale plaintiffs recovery vents reduction of when the defendant’s acts are willful. wrongful Supreme Wyo-
In a
death action the
Court of
ming
plaintiff’s recovery
determined that the
would not be
reduced
his own
since the defendant’s actions
(Wyo.
were willful and wanton. Danculovich v. Brown
1979),
“The
then, is that Sec. 1-1-109 does not man-
comparative neg-
date reduction of
on the basis of
*7
ligence
of the
if defendant’s misconduct is willful
and wanton To hold otherwise would be inconsistent with
purpose
comparative negligence.
the
behind the doctrine of
designated
The doctrine is
to ameliorate the harshness of
contributory negligence
the
bar. The court decisions which
applied
contributory have not
the
bar to willful
purpose. Damages
and wanton misconduct had the same
re-
sulting from willful and wanton misconduct are not ‘dam-
ages
negligence’
for
as that term is used in Sec. 1-1-109.”
In Davies v. the Nevada Court found culpability that a defendant is so close to intentional whose the benefit of have the should not wrongdoing rule concluded that court negligence defense. The by comparative negligence. unchanged pleas to evidence of Lutey contends that the next irrelevant. of minors is delinquency to the contributing can be awarded punitive damages Derenberger asserts that acts wrongful and punish appellant to for malicious or is from a course of conduct implied malice can be Further, awarding pu- harmful unlawful. known to be or account whether may take into damages, jury nitive ato reck- Lutey’s acts were of such a nature as to amount Essentially, Lutey disregard less of others. rights activity was prior be held to criminal should know that Thus, necessary to award harmful or unlawful. the malice punitive damages implied. can be pleas prior guilty of Lutey’s
We hold the evidence (1) with that his miscon respect providing irrelevant wanton, or night duct on the the accident was willful (2) Consequently, establishing punitive damages. a basis proceedings. we reverse and the case for further remand It is admissible is well settled all relevant evidence Rule irrelevant inadmissible. evidence by Rule Mont.R.Evid. evidence is defined Relevant Mont.R.Evid. It states: any tendency having
“Relevant evidence means evidence consequence any make the existence of fact that is of prob- less probable determination of more the action able evi- than it would be the evidence. Relevant without credibility of may bearing upon dence include evidence hearsay witness or declarant.” stated adopted This Court has the test of relevance Commission on The test is: Evidence. any value,
“. . . will have whether an item of evidence proposi- by logic experience, proving determined tion used to measure for which it is offered. The standard tendency to make ‘any this acceptable probative value is probable proba- . more or less existence . . fact *8 ble than it would be without the evidence.’ This standard rejects more stringent ones which call for evidence to make proposition fact or for probable which it is oifered more than any other. It is meant to allow admissibility wide circumstantial evidence only by limited Rule 403 or other special relevancy rules in State v. Fitzpatrick Article IV.” (Mont. 1980), 1343, 1354, St.Rep. 207. (Emphasis added.)
Respondent was prove attempting appellant driving the vehicle recklessly, at a high speed, rate of that such action misconduct, was willful and wanton further, that such respondent’s misconduct was the cause of injuries. Evidence appellant’s prior activity criminal does not have the tendency to make existence of defendant’s alleged willful and wanton misconduct driving while a vehi- cle on the night 5,1979, of November probable. more or less words, other the issue was not whether appellant was supplying liquor to minors but whether his actions were willful and disregard Hence, for others. evidence re- garding the supplying defendant alcohol to minors irrelevant.
Punitive damages can be Sec- awarded accordance with tion 27-1-221, MCA. The statute reads:
“When exemplary damages allowed. In any action for a breach of obligation not from arising contract where the de- fendant has been guilty oppression, fraud, malice, ac- presumed, tual or jury, in addition to the actual dam- ages, may give damages for the example by way sake of of punishing the defendant.”
In the case at bar we appellant’s conclude that evidence of prior guilty pleas was also respect irrelevant with to estab- lishing punitive a basis for damages. The law is clear that to punitive award damages oppression, fraud or malice must Here, be complained associated with the act of. the act complained appellant’s of was operation of the vehicle reckless fashion. appellant purchased The fact that has al- coholic beverages for minors irrelevant to the act com- for establishing a basis irrelevant thereby of and plained make tendency have a It did punitive damages. less more or requisite factors probable. *9 trial. for a new remanded
Reversed and SHEA concur. and MR. WEBER JUSTICES specially dissenting and GULBRANDSON MR. JUSTICE concurring. to allow error reversible it was holding
I concur the pleas to appellant’s guilty regarding admission of evidence liquor to minors. supplying of charges respondent’s holding that I from the respectfully dissent contributory negli- be reduced recovery should not misconduct. of willful or wanton appellant if gence, 556, 551, 37 Harvey (Mont. 1980), In Lawrence v. 607 P.2d 370, 374, St.Rep. this Court stated: construction statutory of “Montana follows the rule state, it is ordina adopted from a sister where a statute is the construction borrows rily presumed legislature the the state from placed court of upon highest it binding is not borrowed, although it is such construction Ap Board Labor Co. v. Continental Oil upon this Court. of 1236, 1240, 35 (1978), 143], 582 P.2d peals Mont. [178 v. Madel (1978), Co. J. T. Miller 1153, 1156; St.Rep. [186 v. State 265; 263, 1321, 1322, St.Rep 49,] Mont. 35 1105, 1103, 34 Murphy (1977), 307], 570 P.2d Mont. [174 (1977), v. St.Rep. 1174, 1177; State ex rel. Mankin Wilson 1075, Mont., 924, 922, St.Rep. 34 195], 569 P.2d Mont. [174 1078 . . .” Wisconsin, sister Supreme the State of Court of ex-
state from legislature whom borrowed the Montana statute, has con- act language Court. precise fronted is now before issue that Schulze, Bielski v. (1962), 114 N.W.2d 16 Wis.2d 111-113, is- analyzed this Supreme Court of Wisconsin sue as follows: history
“The development gross negligence, its existing, reason concept, the content of the and the in- equitable consequences results application and its have led us to decide the doctrine of as gross negligence, we it, know should be jurisprudence interred the limbo of along side doctrine of risk in assumption cases. See McConville v. State Farm Mut. Automobile Ins. Co. 15 Wis.2d 14. N.W.2d Gross anomaly terms, an and contradiction in apparently degree considered terms of than of negli- rather kind gence in early our gradually strong cases. It waxed flesh spirit on degree such terms ‘such a rashness or care,’ wantonness which evinced a or a total want ‘will- ingness although may harm such harm been in- have tended,’ ‘rashly,’ ‘recklessly,’ ‘wantonly,’ less ‘little than an wrong,’ ‘willingness perpetrate intentional injury’ or ‘a purpose take known chances of perpetrating injury.’ an Gradually gross negligence acquired by metamorphosis *10 new lay in of Ordinary negligence the field inad- nature: — gross vertence or con- but the field of actual negligence into injure, grade structive intent and the two did not number, each drinking other. When the cases increased point we reached that the concurrence of causal ordi- law, nary intoxication, a negligence and as matter of gross negligence.
“One of main reasons for the of the doctrine of growth gross negligence of the hardships was to ameliorate contributory common law of doctrine caus- recovery one negligently barred from a tortfeasor ing, However, negli- his own slightly, injury. gross however gence degree, being defined as different in kind and not and, hence, compared could be to ordinary negligence contributory recovery. was no bar to
(( pol- “The a vehicle of social gross negligence doctrine as negligence. icy longer comparative purpose no fulfills a will found to be gross negligence Much of what constituted high ordinary negligence causing constitute a percentage Obviously, goal stressing the harm. we are the basic the loss in negligence, equitable law of distribution of causing respective relation to the contribution of the faults it.” Company v. Yellow Cab (1975), Li
In 13 Cal. of California 804, 825-26, 1226, 1241, 858, 873, Rptr. 3d 119 Cal. P.2d the issues as Supreme Court of California addressed follows:
“Finally problem there is the of the treatment of willful systém comparative negligence. misconduct under a rule, jurisdictions following the ‘all-or-nothing’ upon is no defense to claim of an action based a (see Prosser, Torts, 503; willful misconduct Rest.2d Section supra, Torts, 65, 426), p. present Section this is the (Williams v. Carr 579, rule in California. 68 Cal.2d 505.) Rptr. 68 Cal. As Dean Prosser has observed, reality comparative is in rule fault ‘[this] which is being applied, refusing up and the court to set (Prosser, Torts, supra, the lesser against greater.’ fault 426.) 65, p. Section thought that the difference be- ordinary negli- tween willful and wanton misconduct and gence degree is one of kind rather than the former order, entirely involves conduct of an different and under conception comparative it might urged well be negligence concepts application when one of should have no parties has been wanton miscon- willful and however, persuasively duct. It has been the loss argued, upon application of deterrent occur effect that would concepts and wanton miscon- fault to willful ordinary negligence slight, duct as well would be *11 comprehensive system comparative that a of damages all cases apportionment should allow for the intentional. involving being misconduct which falls short of 108.) supra, (Schwartz, 5.3, p. Section The law (See Schwartz, separate remains a consideration. 109-111.)” supra, pp. Section 5.4 Subsequent to the Supreme California Court’s decision Li v. Yellow Cab Company California, supra, the Califor- District, nia Court of Appeals, expanded upon Fifth said 717, decision in Sorenson v. Allred 112 Cal.App.3d 725-26, 441, 446, Cal.Rptr. as follows:
“In summary, we conclude that no reason defensible exists categorizing for willful and wanton misconduct as a differ- ent kind of comparison not suitable for with other kind of negligence. adoption The neg- ligence in Li separate category unnecessary rendered such a since contributory on part plaintiff longer recovery no a total bar to injury. a tortious axiom, We apply ceases, an old ‘when the need for a rule the rule ceases.’ important
“The by-product of the abolition of shades negligence of other categorizations of fault would be the streamlining of the trial of cases. The submission to the tri fact, particularly ers of juries, liability upon of issues of simply question, it, stated ‘Whose if fault was both are fault, at what degrees are the of fault of places each’ issues in a context readily more understood. The greater the elimination misconduct, of such ‘buzz’ words willful chance, last etc., clear [assumption risk], the more the focus will upon be the real issues as we have noted above. The elimination of willful misconduct as a bar to re covery justice plaintiffs offers to both and defendants in sit uations where Ewing it now is all or v. nothing. Witness Bowl, supra, [389], 398, 20 Cal.3d Cal.Rptr. Cloverleaf where beneficiary would be the of the elimination of willful misconduct as a total bar to recovery.
“For discussed, the reasons we conclude that the doctrine of comparative negligence apply party’s should where either conduct is of type traditionally described as willful and wanton. . . .” of Appeals, District, Court Southern Pac. Second
15 Co. State 116, 121, Transp. v. (1981), Cal.App.3d 115 171 Sorenson, 187, Cal.Rptr. supra: 191 concurred with Li, “The the role of willful mis second unresolved issue recently ad comparative negligence, conduct under was District, which by Appeal dressed the Court of the Fifth preclude appli concluded that willful misconduct does not (Sorenson v. All comparative-negligence cation of the rule. 441.) red 717, In Cal.App.3d Cal.Rptr. 112 169 conclusion, reaching its the court noted that the contribu tory-negligence rule rule and the willful-misconduct to gether comparative amount to a rule of fault under which the lesser fault does not bar the The court said that greater. categorizing no defensible reason willful miscon exists duct as a negligence comparable kind of not with other kind of negligence, adoption and it concluded that the of a rule of superfluous rendered the separate category of miscon negligence described as willful 725, 441.) (p. duct. 169 Cal.Rptr.
“We agree with the the Appeals’ reasoning Court of need separate for a category identified will misconduct, ful inequity which designed to alleviate the rule, of the all-or-nothing contributory negligence has dis appeared adoption comparative negli with the of a rule of gence. concept of willful misconduct remains viable only for injury justifies punitive an intentional dam ages. Unless intentionally injured plain a defendant has tiff, liability plain he is the entitled to a reduction tiff, liability he is entitled in his to a reduction plaintiff’s to the extent own has contrib uted to injury comparative negligence . . . Under dispensation, every party proportion remains liable for his fault, sim ate share of whether his conduct is described as (See Li v. Yellow ple negligence or as willful misconduct. Cab, 858, Cal.3d, 829, P.2d supra, p. Cal.Rptr. 13 119 532 Court, v. 1226; Motorcycle Superior American Association supra, 20 Cal.3d [178] p. Cal.Rptr. 578 P.2d 899.)
This Court has ruled that cannot be re- plaintiff’s contributory duced percentage negli- v. State Farm Mutual Automobile gence. Shahrokhfar (Mont. Company Insurance 1981), 653, 658-59, 1669, 1675, St.Rep. Court held: “This has previously court ruled on question punitive damages percent- whether can be reduced age plaintiff’s purpose negligence. Since the punitive damages punish the defendant not to compensate plaintiff, we such find that an award bears *13 no relationship plaintiff’s reasonable the conduct. There- fore, punitive damages by we hold that cannot be reduced the percentage plaintiff’s contributory of negligence. This Pipeline Amoco holding supported by jurisdictions. other Co. v. Montgomery (W.D.Okl. 1980), F.Supp. 1268; Tampa Engineering Electric Co. v. Stone & Corp. Webster (M.D. Fla., Div., 1973), Tampa F.Supp. 27.”
The jury in this in punitive damages case awarded the $100,000, sum of compensatory damages. addition to compensatory that holding damage may the award not be plaintiff’s reduced the percentage of appears me. If inequitable to the defendant’s conduct “wanton,” “willful” percentage plaintiffs negli- or of the gence comparison, will be to be smaller in determined much and a reduction in award be in compensatory would line principle with the negligence, leaving while an punitive damages holding award for Such intact. a would prevent negligence, from his own profiting preserve policy but would “willful” punishing “wanton” acts.
In view of majority holding and willful kind, and wanton are misconduct different rather than degree, the Montana wish legislature may to resolve problem, light planetary usage in the past this Court’s words ordinary negligence, negligence, such as willful gross negligence, misconduct, I find the Mon- would legislature tana apportionment intended the being fall short of involving cases acts of intentional. dissenting:
MR. JUSTICE SHEEHY I dissent from the decision. foregoing The majority returned this case to the District Court for further solely upon grounds trial that the District Court Lutey in admitting prior erred evidence of instances when drinks, supplied going minors with issue of adopt view a damages. majority The effect of the here is to may strict rule to the kinds of evidence that be admitted character, to show disposition malice or of a defendant and his disregard rights willful for the of others. minors,
In my opinion, Lutey’s partic- of beer to supplying ularly Ray Derenberger, part parcel of the whole Ray Der- grievous injuries transaction that led to the here, he had enberger evening question sustained. On the purchased Ray un- ply Derenberger, beer with which to doubtedly Raymond’s by this criminal senses were dulled Lutey. relevant, therefore, act of showing It is his malice and willful disregard Derenberger, for the that he rights plied liquor minors with the accident or the month before month any showing after the accident without of remorse *14 by Raymond those acts for what he had done Derenberger. damages may jury
Punitive against be awarded defendant oppression, where he has been fraud malice, example such damages to be for the sake of 27-1-221, way MCA. Section punishing the defendant. Here, limits issues this case to majority the fact Lutey driving recklessly, high whether was at a vehicle rate of and wan- speed and whether that action was willful however, ton majority ignores, misconduct. The a concomi- issue, tant Derenberger’s may fact senses have been unlawfully plied with sixteen-year-old dulled when this liquor appreciate the dan- such a manner that he did not ger certainly relevant driving Lutey. with It was most Lutey way prior this issue that had acted the same on succeeding disregard occasions to show his wanton Certainly minors that his influence. came within jury was entitled to in determining consider such evidence damages. usually
This Court has
held that
it will leave the admis-
sion of evidence
of the trial
to the sound discretion
court
Cech v.
subject
only
to review
in cases of manifest
abuse.
State
Packing
Pierce
97;
184 Mont.
Company v.
(9th
John Morrell
1980),
Cir.
I would affirm judgment of the District Court. MR. JUSTICES HARRISON and MORRISON concur.