No. 81-467
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1982
BONITA NELSON,
P l a i n t i f f and Respondent,
HARRY HARTMAN, a n i n d i v i d u a l and
DONLAN RANCH, a b u s i n e s s d o i n g b u s i n e s s
i n G a l l a t i n County,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G a l l a t i n , The H o n o r a b l e
R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Lyman H. Bennett, 111, Bozeman, Montana
F o r Respondent :
Kirwan & B a r r e t t , Bozeman, Montana
S u b m i t t e d on B r i e f s : May 6 , 1 9 8 2
Decided :
aus 5 M2
I
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
This is an appeal of the July 1, 1981, order of the
Eighteenth Judicial District Court of Montana granting
respondent's motion for a new trial. Because sufficiency of
evidence is a critical question on appeal, we hereafter
detail the trial record.
At 11:OO A.M., October 1, 1978, a pickup truck driven
by appellant, Harry Hartman, was in a collision with the
vehicle in which respondent, Bonita Nelson, was riding. The
accident occurred on United States Highway 191, approximately
seven miles south of Bozeman, Montana.
Mr. Hartman, as an employee of the Donlan Ranch, was
helping move Donlan cattle one and one-half miles south down
Highway 191. Mr. Hartman drove a pilot car leading the
cattle. Alan Atchison was a passenger in Hartman's truck.
Other ranch employees were driving a second pilot car behind
the cattle.
Mr. Hartman testified that he drove down the center
line of the highway with flashers activated in front, on top
and behind the truck. To further attract the attention of
other drivers, he manually flashed the headlights at oncoming
traffic.
The Donlan Ranch road was to Mr. Hartman's left. On
approaching that road, Hartman stated he checked the rearview
mirror. He saw the cattle and two vehicles directly behind
him, proceeding at the same slow rate of speed as he. The
second pilot car was approximately a quarter mile back.
Hartman testified he signaled and proceeded to turn
left into the ranch road, with his emergency flashers operating.
The Nelson vehicle was overtaking and passing Hartman's
truck at that same time. A collision ensued.
Alan ~tchison,the passenger in 3artman's truck, testified
for defendant. He stated that while walkinq behind the
truck, with the cattle, he had observed the truck's rear
lights flashing. Mr. Atchison was riding inside the cab
when the accident occurred. He said he checked the traffic
prior to Hartman's left turn. He testified to seeing the
cattle and two cars immediately behind the truck, moving at
approximately 15 to 20 miles per hour. He did not see the
Nelson vehicle.
Mrs. Nelson testified that she, her husband and four
grandchildren were enroute to Idaho when the accident occurred.
She checked behind their stationwagon as Mr. Nelson started
to pass. She saw no vehicles approaching from the rear,
then turned forward and saw the pickup immediately in front
of them. She did not recall seeing any cattle.
James Wayment, a north-bound motorist, testified that
he saw a left-turn signal on Nelson's vehicle, but saw no
lights whatsoever on the truck driven by Hartman. He also
observed no cattle on the road.
Up until the weekend prior to trial, Boyd Nelson was
also a plaintiff in this suit. His claim was settled for
$12,650. A motion in limine regarding contributory negligence
of Boyd Nelson, driver of the car in which respondent was
riding, was granted the first day of trial. When Nelson
took the stand, he testified only regarding his wife's
injuries and how they affected the work she did for the
family business. No other witnesses were called on the
liability issue.
On the first day of trial, counsel for plaintiff was
advised by the court that testimony regarding Mr. h art man's
bad driving record would not be admitted unless a foundation
was first laid. The foundation had to establish a clear
connection between Mr. Hartman's operating the truck as an
unlicensed, habitual offender driver and Mrs. Nelson's
injuries. No such foundation was laid and the evidence was
not admitted.
The jury returned a verdict in favor of defendants,
Harry Hartman and Donlan Ranch. Judgment was entered April
30, 1981. A motion for new trial followed. The motion was
granted for the following reasons:
(1) It was error to exclude evidence of Mr. Hartman's
past driving record. Such evidence was relevant to the
issue of Mr. Hartman's capabilities as a driver as well as
to the issue of punitive damages;
(2) The jury's verdict was contrary to the evidence
presented at trial; and
(3) Discussion by both counsel of the exercise of a
preemptory challenge as to one juror was improper and
affected the jury in its deliberations.
Defendant contends that the District Court abused its
discretion by granting the plaintiff's motion for a new
trial. We find that the District Court did abuse its discretion
on each of the three grounds and reverse the order granting
respondent a new trial.
We do not agree with the trial court that it was error
to exclude evidence of Mr. Hartman's past driving record.
The evidence was not unconditionally excluded. Rather,
counsel for respondent was told such evidence would be
admitted if a proper foundation linking appellant's driving
record with respondent's injuries was first laid. No foundation
was laid. The evidence was not allowed.
Evidence that a driver has no license and has been
designated a habitual offender for driving purposes is
highly prejudicial. Such evidence could only be relevant to
an issue of competency and could not be used to prove any
specific act of negligence here at issue. The court was
correct in originally demanding that a proper foundation be
laid prior to admitting the evidence. Further, since the
jury failed to find appellant liable, there was no error in
failing to admit appellant's driving record for punitive
damages purposes. There can be no punitive damages without
actual liability entitling Nelson to actual damages. Galiger
v. Hansen (1957), 133 Mont. 34, 319 P.2d 1051; Smith v.
Krutar (1969), 153 Mont. 325, 457 P.2d 459.
The District Court's second ground for granting respondent
a new trial was that the jury verdict was contrary to the
evidence. A trial court's denial of a motion for new trial
is granted greater deference than a motion which has the
effect of nulliying a jury verdict. This Court will not
hesitate to reinstate the verdict which is supported by
substantial evidence. Beebe v. Johnson (1974), 165 Mont.
96, 526 P.2d 128, citing Campeau v. Lewis (1965), 144 Mont.
543, 398 P.2d 960.
The evidence here presented at trial was in conflict.
When testimony at trial includes different accounts of an
event, the trial court cannot overturn a jury verdict or
grant a new trial solely because it choses to believe testimony
different than that believed by the jury. Yerkich v. Opsta
(1978), 176 Mont. 272, 577 P.2d 857. To honor this action
would create a bench supremacy and sap the vitality of jury
verdicts. There is substantial credible evidence to support
the jury's verdict and the verdict should be reinstated
unless the granting of a new trial can be premised on the
final ground stated.
The trial court's third reason for granting a new trial
was the effect on the jury of the discussion concerning a
prospective juror by both counsel in their closing arguments.
In its order, the trial court said:
"It is impossible at this juncture to assess
the impact of this type of argument upon a
jury. It impacted this judge because of be-
ing unprofessional conduct. Because I am un-
able to assess the total impact of this con-
duct upon the jury but am satisfied that the
totality of the circumstance was such that it
did affect the jury in its deliberations, this
alone is sufficient grounds for new trial."
In his closing argument, counsel for defendant stated:
"Now, in closing, ladies and gentlemen of the
jury, you recall one of the tentative members
of the jury Monday, and you notice he's not
here, who said, 'I'm going to award the plain-
tiff what I feel is fair and reasonable, as
long as there's no snow in it.'"
In response, counsel for plaintiff stated:
"I'm wondering about this snow situation with
this juror. I remember him. His name was
Dan Sanders, and he sat right down there, and
Bill Bennett [counsel for defendant] disquali-
fied him. I don't know why he disqualified
him, but I believe Bill Bennett's second or
third disqualification was given, and it was
Dan Sanders."
To this defense counsel replied:
"Mr. Bennett: 'May it please the Court,
could we correct the record on that parti-
cular matter? It was the plaintiff who
disqualified Mr. Sanders.'"
At that point, the trial judge called a recess and counsel
were admonished in chambers. Upon return to the courtroom,
the trial judge discussed at length the comments about the
prospective juror with the jury and advised the jury to
ingore them.
The test used by this Court to determine when arguments
of counsel may be the basis for granting a new trial is found
in Vogel v. Fetter Livestock Co. (1964), 144 Mont. 127,
394 P.2d 766. Improper argument requires reversal only when
p r e j u d i c e h a s r e s u l t e d which p r e v e n t s a f a i r t r i a l . The
t r i a l c o u r t d i d n o t make a s p e c i f i c f i n d i n g of p r e j u d i c e . In
f a c t , t h e t r i a l c o u r t f i r s t determined t h a t t h e j u r y admonish-
ment was s u f f i c i e n t g u a r a n t e e of a f a i r t r i a l . Counsel d i d
not object. W e f i n d no b a s i s f o r a new t r i a l .
The o r d e 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 i s r e v e r s e d .
The o r i g i n a l v e r d i c t i n f a v o r of d e f e n d a n t i s r e i n s t a t e d and
judgment s h a l l be e n t e r e d a c c o r d i n g l y .