                                      No. 84-397
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1985



AMIE BROWN, by Darold Brown,
her next friend,
                               Plaintiff and Respondent,
     -vs-
LARRY MARKVE ,
                               Defendant and Appellant.




APPEAL FROM:       District Court of the Sixteenth Judicial District,
                   In and for the County of Fallon,
                   The Honorable Alfred B. Coate, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:

               Crowley, Haughey, Hanson, Toole        &   Dietrich, Billings,
               Montana

         For Respondent :
               Huntley     &   Eakin; Gene Huntley, Baker, Montana



                                      Submitted on Briefs:    May 9, 1985
                                                   Decided:   May 23, 1985


Filed:
          MHY ."   ,/'J&
     -
                                      Clerk
Mr.    J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n of t h e C o u r t .

        D e f e n d a n t a p p e a l s from t h e o r d e r o f t h e S i x t e e n t h J u d i -

cial     District,         Fallon     County,      granting        a      new t r i a l .         The

D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s t h a t t h e

$25,000       jury    award       t o the plaintiff            constituted           inadequate

damages.        W e reverse t h e D i s t r i c t C o u r t .

        The o n l y i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d          in

g r a n t i n g p l a i n t i f f ' s motion   f o r a new t r i a l a f t e r t h e p l a i n -

t i f f had r e c e i v e d a j u r y v e r d i c t o f $ 2 5 , 0 0 0 .

        Plaintiff        had     stopped       her vehicle         at      a   stop    light       in

B a k e r , Montana.        H e r s t o p p e d v e h i c l e was s t r u c k from t h e r e a r

by a p i c k u p t r u c k o p e r a t e d by t h e d e f e n d a n t .          Prior t o the

commencement          of      trial,      defendant         admitted           liability          for

damages p r o x i m a t e l y c a u s e d by t h e a c c i d e n t .           As a result,         a

t r i a l was h e l d on t h e i s s u e o f t h e n a t u r e and e x t e n t o f t h e

p l a i n t i f f ' s damages.      Following t h e jury t r i a l , a v e r d i c t f o r

$25,000      was     returned       for the plaintiff.                    Judgment          in   that

amount was e n t e r e d .          P l a i n t i f f moved f o r a new t r i a l and t h e

D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s o f i n a d e -

q u a t e damages       and      insufficiency of           t h e evidence t o j u s t i f y

the verdict.

        I n h o l d i n g t h a t t h e v e r d i c t g r a n t e d i n a d e q u a t e damages,

the District          Court      concluded       t h e r e was n o t s u f f i c i e n t e v i -

d e n c e upon which t o b a s e an award o f                   $25,000.           Essentially

t h i s i s no d i f f e r e n t t h a n t h e c o n c l u s i o n t h a t a n e w t r i a l was

granted       because       of    the     insufficiency           of       the    evidence         to

justify      the verdict.             The      standard      t o be        a p p l i e d upon t h e

g r a n t i n g o f a new t r i a l and t h e c o n s e q u e n t r e v e r s a l o f a j u r y

v e r d i c t i s s t a t e d i n N e l s o n v . Hartman       (Mont. 1 9 8 2 ) , 648 P.2d

1176, 1178, 3 9 St.Rep.              1409, 1412, a s f o l l o w s :

        "The D i s t r i c t C o u r t ' s s e c o n d g r o u n d f o r g r a n t i n g
        r e s p o n d e n t a new t r i a l was t h a t t h e j u r y v e r d i c t
        was c o n t r a r y t o t h e e v i d e n c e .       A t r i a l court's
        d e n i a l o f a m o t i o n f o r new t r i a l i s g r a n t e d g r e a t e r
        d e f e r e n c e t h a n a m o t i o n which h a s t h e e f f e c t o f
        nullifying a jury verdict.                          This Court w i l l n o t
        h e s i t a t e t o r e i n s t a t e t h e v e r d i c t which i s s u p p o r t -
        ed by s u b s t a n t i a l e v i d e n c e .             Beebe v.    Johnson
        (1974),          1 6 5 Mont.          96,     526 P.2d         128,     citing
        Campeau v. Lewis ( 1 9 6 5 ) , 1 4 4 Mont. 543, 398 P.2d
        960. "

The t e s t t o b e        applied i n t h e p r e s e n t c a s e i s whether t h e

verdict       of     $25,000       is    supported          by    substantial            evidence.

        I n r e v i e w i n g t h e Memo Opinion and O r d e r o f t h e D i s t r i c t

Court, w e f i n d t h a t t h e d i s t r i c t judge r e f e r r e d t o t h e f a c t

that    i n c l o s i n g argument,            defense counsel suggested t o t h e

j u r y t h a t "a f a i r v e r d i c t would b e $30,000."                   The c o u r t t h e n

c o n c l u d e d t h a t t h i s argument t o t h e j u r y had t h e l e g a l e f f e c t

of an a d m i s s i o n a g a i n s t i n t e r e s t which s e t t h e l o w e r l i m i t s

of t h e v e r d i c t a t $30,000.            No c i t a t i o n o f l e g a l a u t h o r i t y i s

cited     f o r t h a t conclusion.              I n addition,             t h e conclusion of

t h e t r i a l c o u r t c o n t r a d i c t s i t s own I n s t r u c t i o n No.        1 which

i n p a r t s t a t e d a s follows:

        " S t a t e m e n t s o f c o u n s e l a r e n o t t o b e r e g a r d e d by
        you a s e v i d e n c e and you w i l l d i s r e g a r d a n y s u c h
        s t a t e m e n t s which a r e n o t s u p p o r t e d by t h e e v i d e n c e
        r e c e i v e d upon t h i s t r i a l . "

        By h i s a r g u m e n t , t h e d e f e n s e c o u n s e l o b v i o u s l y s o u g h t t o

encourage t h e jury             t o reach a         lower v e r d i c t because o f t h e

presence       of    an    admission o f           liability          on    the    part     of    his

client.        However,         t h a t suggestion cannot be c l a s s e d a s evi-

dence o r an admission a g a i n s t i n t e r e s t which s e t a f l o o r o f

$30,000 below wh.ich t h e j u r y c o u l d n o t go.                      The j u r y remained

the    finder       of    fact     with     the     right        to    set t h e        damages    at

$25,000 o r s u c h o t h e r f i g u r e a s t h e j u r o r s m i g h t c o n c l u d e t o

be a p p r o p r i a t e under t h e evidence.

        We    have       examined        the     medical         evidence          submitted       in

behalf        of         both     the       plaintiff             and        the        defendant.

Well-qualified            medical       experts        in    the       field       of    neurology

testified          for    both    the     plaintiff         and       the    defendant.           The
e v i d e n c e r e g a r d i n g t h e e x t e n t o f t h e damages and t h e d i s a b i l -

i t y on t h e p a r t o f         the plaintiff           is sharply contradictory.

As   an      example,       the plaintiff's            doctor t e s t i f i e d     that there

were p o s i t i v e i n d i c a t i o n s o f a p y r a m i d a l t r a c t d i s t u r b a n c e i n

the plaintiff.              T h i s i s claimed t o be a response i n d i c a t i n g

involvement          of    the     great      pyramidal        motor       system       somewhere

between       the brain           and   the     spinal      cord     and     can    indicate        a

r a t h e r s e r i o u s problem.         In c o n t r a s t , t h e neurologist testi-

f y i n g f o r t h e d e f e n d a n t s t a t e d t h a t t h e r e was a b s o l u t e l y no

s i g n o f any p y r a m i d a l t r a c t d i s t u r b a n c e and t o t a l l y d i s a g r e e d

t h a t t h e r e was a p o s i t i v e B a b i n s k i       s i g n which had been ob-

served       by    the     plaintiff's         doctor.          This     type      of   conflict

appears throughout t h e medical testimony involving t h e n a t u r e

o f t h e i n j u r y t o p l a i n t i f f , and t h e e x t e n t o f h e r d i s a b i l i t y .

        Apparently          the     jury    concluded        that     i n c e r t a i n medical

aspects,       t e s t i m o n y s u b m i t t e d i n b e h a l f o f t h e d e f e n d a n t was

more b e l i e v a b l e    than      t h a t of     the plaintiff.              T h a t was t h e

function of t h e jury.                 A s we review t h i s e v i d e n c e s u b m i t t e d

i n b e h a l f o f t h e d e f e n d a n t , we c o n c l u d e t h a t it was c l e a r l y

substantial.              The     e v i d e n c e which    supports        the     v e r d i c t was

presented         by a w e l l - q u a l i f i e d   medical       doctor,       who was ade-

q u a t e l y examined and c r o s s - e x a m i n e d       t o e s t a b l i s h t h e conten-

t i o n s on t h e p a r t o f t h e d e f e n d a n t w i t h r e g a r d t o t h e n a t u r e

o f t h e i n j u r y and t h e d e g r e e o f d i s a b i l i t y .      W e conclude t h a t

there     c l e a r l y was      s u b s t a n t i a l c r e d i b l e evidence t o support

t h e v e r d i c t of t h e jury.

        We    r e v e r s e t h e D i s t r i c t C o u r t and d i r e c t t h a t t h e v e r -

d i c t s h a l l be r e i n s t a t e d and judgment             entered i n accordance

with t h e verdict.
We c o n c u r :
                   ,'
                   +




Justices
Mr. Justice John C. Sheehy, dissenting:


     I would affirm the grant of a new trial by the District
Court.
     Mr. Justice Wesley Castles, in his dissent in Beebe v.
Johnson   (1974), 165 Mont.     96, 116, 526 P.2d    1.28, 138,
complained that "what the rule may now be in this Court's
review of a trial court's order granting a new trial is
highly speculative."
     Beebe v. Johnson is the founding case upon which Nelson
v. Hartman (Mont. 1982), 648 P.2d 1176, 39 St.Rep. 1409, is
based.    Nelson v.    Hartman is the case relied on by the
majority in this case to determine that the grant of a motion
for new trial is not entitled to the deference on appeal that
traditionally is given to a denial of a motion for new trial.
     Justice Castles had reason to be concerned.     Tn Beebe,
this Court determined,that it would set aside a grant of new
trial if this Court found "there is nothing incredible about
the verdict,'' relying on Campeau v. Lewis (1965), 1-44 Mont.
543, 398 P.2d 960.     This Court came to that rule by ignoring
Tigh v. College Park Realty Company (1967), 149 Mont. 358,
427 P.2d 57 and Garrison v. Trolbridge (1947), 119 Mont. 505,
177 P.2d 464; and Brennan v. Mayo (1935), 100 Mont. 439, 50
P.2d 245, where we had established the rule that the trial
court will not be reversed on a grant of new trial except
upon - ma.nifest abuse - discretion.
     a                 of
     In Ployhar v. Board of Trustees of Missoula County High
School (involving the same counsel) (19801, 187 Mont. 363,
609 P.2d 1226, this Court reverted to its prior rule:

     "The trial court has broad discretion in granting
     or refusing to grant a new trial. Its order will
     not be disturbed on appeal      the absence - -
                                                 of a
       clear showing - - manifest abuse of discretion.
                      of a
       See Yerkich v. Opsta (1978), 176 ~ r n t . 272, 577
       P.2d 857.   This Court is especially reluctant to
       reverse a.n order granting a new trial because it
       gives both parties an equal chance to relitigate
       their positions in a second trial. Tigh v. College
       Park Realty Company (1967), 149 Mont. 358, 427 P.2d
       57. An order granting a new trial will be upheld
       if it can be sustained on any of the grounds
       contained in the order.    Tigh, supra. " 187 Mont.
       at 365. (Emphasis added.)
       In Nelson v. Hartman, in 1982, we seem to have backed
off   again to the position in Beebe, although Nelson v.
Hartman does not really contain any standard for review with
respect to a grant of a new trial.                I regret that when I
joined   in the opinion       in Nelson v.        Hartman, I did not
perceive that the opinion could be construed as suggesting a
lesser standard of review than manifest abuse of discretion
in determining the propriety of a district court's order
granting a new trial.
       In the federal court system, there is no appeal from the
order of a federal district court granting a new trial.                 The
federal theory is that since the issues will be relitigated
in    the new    trial, no    party   is aggrieved until a            final-
judgment is entered.         We do not, therefore, have from the
federal system a body of law to which we could advert to
determine   a    generally-accepted     rule      for   review   in     this
jurisdiction where an appeal is allowed from a grant of new
trial.
       In every other instance, we give deference to the orders
and decisions of a d.istrict court in the course of a trial.
Its ruling on evidence will generally be                 sustained; its
decisions as to whether jurors should be excused, where venue
should    lie,   whether     issues   will   be    tried   at    once    or
separately, are regarded with respect on appeal.             In a bench
trial, its findings of fact will not be set aside unless they
are "clearly erroneous."         There is no logical reason to say
that in this one instance, the district judge's decision must
give way if there is "substantial" evidence, an ephemeral
term at best.
        If we   are to abandon the rule of review requiring
"manifest abuse of discretion" in this type of appeal, we
should still place the burden upon the appellant to take the
laboring oar where a new trial grant is appealed.              At least
the rule should be that in an appeal from an order granting a
new trial the appellant must affirmatively establish that the
reasons stated in the order for a new trial do not justify a
new trial.      See Santanello v. Cooper (Ariz      .   1970) , 475 P. 2d
246, 248.        It offends my      view of appropriate appellate
procedure that the respondent, under the view here, must
affirmatively justify the District Court's order and not the
appellant.      That is really the effect of this decision.
      A further reason that we should determine an appropriate
standard of review in this type of case is the example we get
from this case itself.          The majority have turned themsel-ves
into fact-finders, weighing medical evidence, and, as I will
suggest, weighing it inadequately.
      As the District Court pointed out in its memorandum and
order    granting   the   new    trial, the     $25,000 verdict here
included $13,000 in special damages, which were uncontested
by   the defendant.       That means that the jury awarded the
meager    sum of    $12,000 for pain      and    suffering    (past and
future), loss of ability to lead a normal life, and possible
loss of earning capacity.
      I think the jury totally rejected the testimony of
defendant's medical witness, Dr. Smith.           Let me explain why.
      Amie called on her behalf Dr. Keilman, a chiropractor
from Glendive, Montana.           Amie had been his patient from
August   23, 1980.        She had   stiffness of the lower back,
thoracic cervical tension, nervousness and an elbow problem.
He saw her several times between 1980 and February 9, 1981.
He stated that on her last visit to him she described her
health as "fantastic" and that as far as he was concerned,
she had recovered full health in February of 1981.
     Amie's    accident occurred on February 22, 1981.                  On
February 23, 1981, she again came to his office complaining
of   severe head    pain and      tired neck.          She related those
complaints     immediately   to     the    injury      sustained   in   the
collision, where she was rammed from behind by the truck.
Dr. Keilman testified that in the nine years that he had been
practicing,    she was     probably       the   most    severely   injured
patient he had ever had in his office.                 She was hurting to
the point that she could no longer support her head with her
own muscles.    She was holding her head with her hands because
her neck was too tender and too sore.                 His x-rays revealed
that Amie had a loss of lordotic curvature, i n other words,
                                             .
her neck spine had straightened out instead of presenting the
normal curve.      His diagnosis was her neck was sprained with
constant   pain,    and   laceration      of    the    entire   "spacious"
ligaments in the area of C-1 to C-5.
     Amie's second medical witness was Dr. Richard Nelson of
Billings, a specialist in neurology.            He described neurology
as that branch of medicine that studies the normalities and
abnormalities of the nervous system, including the anatomy
and physical functions of the brain and spinal cord and their
rel-ation to all the nerves and organs of the body system.              In
his physical examination of Amie, on March                  22, 1983, 13
months following the accident, he found a Babinski response
from which eventually he determined that Amie had a cervical
sprain which affected the pyramidal motor system somewhere
between her brain and her spinal cord, and also a possible
thoracic syndrome.        To eliminate other causes, he had. CAT
scans taken, to remove the possibility of subdural hematoma
and cervical spine degeneration, and other tests to exclude
multiple sclerosis as a possible cause of her difficulty.        He
also    caused    thermograms to   be   taken which   he   testified
confirmed his diagnosis.       He further indicated that Arnie's
condition was chronic, that he could not predict at what
point in time she would find relief from her pain.         At trial,
he demonstrated a Babinski response by conducting the test on
Amie before the jury.
       Dr. Maurice Camp Smith, a Billings neurological surgeon,
testified by deposition, on behalf of the defendant.            Dr.
Smith found. no Babinski response, and ridiculed what Dr.
Nelson found, saying:
       ". . .   She told me that Dr. Nelson had said that
       she had a Babinski response.        Now this is a
       pathologic response indicating involvement of the
       great pyramidal motor system somewhere between the
       brain and. the spinal cord, and it was rather--would
       indicate a rather serious problem, so I think what
       had happened that he called this a Babinski on the
       extension of the toe but must have failed to
       continue the plantar stimulation and realize that
       the toes all flex normally and this was perfectly
       normal    . . ."
       Dr. Smith found no sensory diminution in Amie and he
reviewed the x-rays and the CAT scans of the brain and neck.
His determination was that she had symptoms of a tension
headache, that she had no abnormal neurological findings, no
x-ray findings that were abnormal, and no abnormal findings
in the CAT scan of her brain.            He felt that she had a.
flexion-extension injury a.t the time of the accident, causing
a sprained neck.         He woulc? not agree that any symptoms
existed beyond six weeks that could be attributed to the
accident.
     His cross-examination is more             revealing.     Dr. Smith
demeaned the testimony of Dr. Keilman, the chiropractor:
     "Q. Well, one of the things you said you read was
     Dr. Keilman's deposition.    A.    He is not a
     physician.
     "Q. What is he?         A.    A chiropractor.

    "Q.    All right, he's a, a--he                treats people
    medically.   A.    No, he doesn't.              He treats by
    chiropractic means.


    "A. Even if he were a physician, and even if then
    he were a specialist in a -- this particular field,
    even specialists in the same field can have
    marketedly different opinions. I would just say it
    was a difference of opinion and in this opinion it
    is a difference of opinion without the -- the
    expertise that I have."
     Dr.    Smith     further      testified   that   he    attached   no
significance to the loss of lordotic curvature found by Dr.
Keilman.     He intimated indirectly that Dr. Nelson did not
know how to conduct a Rabinski test, since Dr. Nelson was a
neurologist,    and    he,    Smith,    was    a   neurosurgeon.       He
discounted any medical authority cited to him, saying:
    "9. Well, here's another. A. Proving my point
    that you can get any article to support any point
    you want.
    "Q.    I want to ask you something about that,
    doctor.   When you go to -- to school you read
    books, don't you? A. Sure.
     "(2. And don't you rely upon them for your practice
     of medicine. A. Never.
     "Q.    You don't?            No.
     "Q. And don't your -- the people that teach you
     and your other experts, don't they write books? A.
     Sure.
    "Q. But you don't rely on them? A. Never. The
    purpose of a medical education is to learn to sort
       out the Literature so that you can rely on some
       things, you can use some things to help you, but
       your total -- what you rely on is your knowledge of
       the anatomy, the physiology, a knowledge of
       pathology, of what happens, and you don't learn
       that in books.   In fact, you don't learn medicine
       in books or articles.
       'Q.   And you don't apparently practice medicine
       from books. A. No I don't.
       "Q. There is a vast literature that has grown up
       in the medical field, don't you pursue any of that?
       A. Of course I do. I take it all into advisement,
       but I never rely solely upon any article. To do so
       would be absolutely foolhearty.
       "(2. And you don't recognize any article as being
       authoritative? A. Well, of course not.''
       Thus if the world disagreed with Dr. Smith, the world
was wrong and he was right.
       At the risk of being called a fact-finder myself, I
think the jury rejected the testimony of Dr. Smith, but I am
positive that the court rejected it.        For that reason, the
District    Court, viewing    the   remaining   testimony   of   the
medica.1 witnesses for Amie Brown and her own testimony,
determined that a $12,000 award for her pain, suffering and
other damages, past and future, was inadequate as a matter of
law.     I agree.
       Counsel for the defendant must also have agreed when he
suggested to the jury that $30,000 was a fair, proportionate
award.     Counsel for the defendant was not in the business of
giving away his client's money.
       The only effect of a district court's motion to grant a
new trial is to have another jury take a look at the case.        A
fear seems to be developing in this Court that juries are not
to be trusted in the matter of damages.         (See for example,
Weber v. Blue Cross of Montana (Mont. 1982), 643 ~ . 2 d
                                                       198, 39
St.R.ep. 245.)      I trust we are not about to revert to the

philosophy of 20 years ago expressed in the O'Brien cases, an
e r a of d e c i s i o n s t h a t b r o u g h t a b o u t s o much d i s c r e d i t t o t h i s

C o u r t among members of            t h e Bar.       O'Brien v.         Great Northern

Railway ( 1 9 6 6 ) , 148 Mont. 429, 4 2 1 P.2d 710;                    ( 1 9 6 5 ) 1 4 5 Mont.




                                                 + ;XL?              6.
                                                                  Justice


I concur i n t h e f o r e g o i n g d i s s e n t .
