No. 90-222
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
DARRELL D. HENRICHS,
Plaintiff and Respondent,
-vs-
DONNA E. TODD,
Defendant and Appellant.
APPEAL FROM: District Court of the ~hirteenthJudicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Calvin J. Stacey, Keefer, Roybal, Hanson, Stacey &
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Walen, Billing, Montana
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-.. For Respondent:
R. Russell Plath, Halverson, Sheehy & Plath, P.C.,
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Submitted: August 9, 1990
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Decided: November 8, 1990
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Donna E. Todd appeals from the order of the District Court,
Thirteenth Judicial District, Yellowstone County, granting a new
trial to Darrell Henrichs, plaintiff, for irregularities in
communications between the bailiff and the jury. We affirm.
The issues presented on appeal are:
1. Did the bailiff improperly communicate with the jury?
2. Did the irregularity affect the substantial rights of the
respondent?
3. Did the communication deny the respondent's right to a
fair trial?
4. Was the grant of a new trial a manifest abuse of
discretion on the part of the trial court?
On January 25, 1990, the jury returned a verdict in favor of
the defendant by special interrogatory. On February 5, 1990,
plaintiff Henrichs filed his motion for a new trial pursuant to
Rule 59, M.R.Civ.P., and 9 9 25-11-101through -104, MCA. Henrichs
alleged an irregularity in the proceedings which prevented him from
receiving a fair trial. The irregularity alleged was that during
the course of the deliberations, the jury had a question regarding
the application of the comparative negligence statute and the
payment of damages to the plaintiff. The jury wanted to know if
damages would still be paid to Henrichs if it found that the
defendant was 50 percent negligent and the plaintiff was 50 percent
negligent. The jury notified the bailiff that it wanted to ask the
question; the bailiff stated that he could not answer it and that
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all of the attorneys and court personnel would have to be called
back into court to properly respond. When the foreperson asked how
long all this would take, the bailiff responded that it would take
about as long as it takes "for hell to freeze over.Ig Other jurors
overheard the remark and decided to resolve the issue on their own.
The jury found for the defendant and the plaintiff timely
filed a motion for new trial. After oral argument, the District
Court found that the bailiff's conduct had prevented the plaintiff
from receiving the benefit of a statutory procedure designed to
insure a fair trial and that such conduct materially affected the
substantial right of the plaintiff to have the jurors' question
presented to the court.
The conduct of the bailiff in this case is governed by 5 25-
7-403 and 5 25-7-405, MCA. These statutes require that the bailiff
is not to have any communication with the jury except by order of
the court; and that if the jury has a question on testimony or on
a point of law, it may require the bailiff to bring them into
court. Section 25-7-403, MCA, provides in part:
When the case is finally submitted to the jury, it may
decide in court or retire for deliberation. If the
jurors retire, they must be kept together in some
convenient place, under charge of an officer, until at
least two-thirds of them agree upon a verdict or are
discharged by the court. Unless by order of the court,
the officer havincr them under his charse must not suffer
anv communication to be made to them or make any himself,
except to ask them if they or two-thirds of them are
agreed upon a verdict; and he must not, before their
verdict is rendered, communicate to any person the state
of their deliberations or the verdict agreed upon.
(Emphasis added.)
Section 25-7-405, MCA, provides in pertinent part:
After the jury has retired for deliberation, if there be
a disagreement among the jurors as to any part of the
testimony or if they desire to be informed of any point
of law arising in the cause, they may require the officer
to conduct them into court.
The conduct of the bailiff in this case was clearly in violation
of 5 25-7-403 and 5 25-7-405, MCA. He did communicate to the jury
and he did not conduct it into court for resolution of their
question.
Appellant contends that the communication between the bailiff
and the jurors, although improper, was immaterial and did not have
a prejudicial effect on the jury. Section 25-11-102, MCA, governs
grounds for a new trial:
The former verdict or other decision may be vacated and
a new trial granted on the application of the party
aggrieved for any of the following causes materially
affecting the substantial rights of such party: (1)
irregularity in the proceedings of the court, jury, or
adverse party or any order of the court or abuse of
discretion by which either party was prevented from
having a fair trial;
Appellant relies on this Court's decision in Ahmann v.
American Federal Savings and Loan Association, 235 Mont. 184, 766
P.2d 853 (1988), for authority to conclude that the bailiff's
behavior did not materially affect plaintiff's rights. In Ahmann,
a juror testified that when she asked the bailiff whether the
jurors could talk to the judge about their questions, she was
informed that they could only communicate with the court in
writing. The juror further testified that the bailiff told her
that the judge probably would not consider the jury's questions
until the next day or until after the trial was completed. This
Court concluded that the bailiff's communication did not prevent
the jurors from asking questions of the judge, and therefore did
not materially affect the plaintiff's rights.
The facts of Ahmann are not analogous to the facts before us.
The bailiff did not merely state a reasonable time in which the
jurors could expect a response, as in Ahmann; here he communicated
that it was almost impossible to get a response at all. By so
doing, he effectively prevented the jury from clarifying a crucial
point of law.
Appellant's next argument that the jury was instructed on the
issue of comparative negligence and therefore did not need to ask
the question is equally without merit. It is not that the jury was
without instruction that is at issue; it is that they were
prevented from asking a question which they had a right to ask.
Section 25-7-405, MCA. Further, the bailiff prevented the Judge
from ever having the opportunity to decide whether to answer the
jury's inquiry. It is also beside the point that, as appellant
notes, the communication was "done in a joking fashion and in no
way was an attempt on his part to discourage the members of the
jury from asking their question.I1 The effect of the remark was to
prevent the jurors from attempting to contact the court materially
affecting the substantial right of the respondent to have the jury
fully informed. Clarification of the issue of comparative
negligence was especially important in this case. Without the
clarification, the possibility existed that some of the jurors were
operating under the mistaken belief that the defendant's negligence
had to be greater than the negligence of the plaintiff before a
verdict for the plaintiff could be given.
Appellant also maintains that the statements of the jurors
that they were not influenced through the conduct of bailiff Marcum
are determinative of whether or not respondent was denied the right
to a fair trial. Appellant submits eight affidavits from the
jurors stating that their decision in the matter was not affected
by the bailiff's conduct. Although the jurors' statements are not
to be taken lightly, it remains pure speculation on their part
whether or not the process may have gone differently with
additional instruction from the court. The affidavits fail as
proof of a fair trial when weighed against the bailiff's actions.
IV.
Appellant contends that the trial court's grant of a new trial
to the respondent is not supported by substantial evidence and is
clearly erroneous, and constitutes a manifest or obvious abuse of
discretion. This Court recently set out the standard of review for
decisions to grant a new trial:
It is essential to our determination in this case for us
to set forth a clear and concise statement of the scope
of our review regarding the grant of a new trial. The
decision to grant a new trial is within the sound
discretion of the trialjudge and will not be overturned
absent a showing of manifest abuse of discretion.
Stanhope v. Lawrence, 787 P.2d 1226, 1228, 47 St.Rep. 438, 440
(Mont. 1990). In the case before us, appellant has the burden of
showing that the judge abused his discretion by granting the new
trial. Because there was no dispute that the bailiff had
substantial communication with the jury, and failed to report the
jury's questions to the court, we conclude that no showing was made
that the trial judge manifestly abused his discretion.
Affirmed.
Justices
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