No. 92-624
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
JOSEPH J. GEIGER,
Plaintiff and Appellant,
v.
SHERRODD, INC., a Montana Corporation:
DAVID LEE KINSEY, individually and as
agent and employee of Sherrodd, Inc.;
and LEE SMITH, individually and as
agent and employee of Sherrodd, Inc.,
nr
Defendants and Respondents.
APPE;AL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Harry J. Mehr, Attorney at Law,
Glendive, Montana
Peter T. Stanley, McNamer, Thompson,
Werner & Stanley, P.C., Billings, Montana
For Respondents:
Michael W. Tolstedt and Michael P. Heringer,
Brown, Gerbase, Cebull, Fulton,
Harman & Ross, Billings, Montana
Submitted on Briefs: November 18, I993
Decided: December 22, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Joseph J. Geiger filed this action in the District
Court for the Thirteenth Judicial District in Yellowstone County,
Montana, to recover damages for injuries sustained in a collision
with defendants. The jury returned a verdict for defendants and
the District Court denied plaintiff's motion for a new trial.
Plaintiff appeals from the denial of his motion for a new trial.
We affirm the order of the District Court.
The issues on appeal are restated as follows:
1. Did the District Court commit reversible error when it
incorrectly instructed the jury on comparative negligence?
2. Did the District Court err when it failed to properly
respond to questions asked by the jury?
3. Did the District Court err when it refused to consider
juror affidavits which set forth evidence of juror misconduct?
4. Did the District Court abuse its discretion when it
rejected plaintiff's proposed jury instruction regarding the
non-appearance of a defendant?
On December 12, 1985, plaintiff Joseph J. Geiger was driving
a semitruck and trailer for his employer on U.S. Highway 20 in
Idaho when he collided with a semitruck and trailer owned by
defendant Sherrodd, Inc.
Prior to the accident, the Geiger truck had been following two
Sherrodd trucks. The first was driven by defendant Leroy (Lee)
Smith; the second by defendant David Xinsey. The road conditions
2
varied from clear to snowpacked and visibility was poor at times
due to blowing snow. Testimony indicated that the trucks were
traveling between 40 and 55 miles per hour, depending on
visibility. At a point on the highway near the Elk Creek Conoco
Station, Kinsey testified that he heard a radio message from an
unidentified driver having trouble with his transmission, stating,
"1 missed the first exit, I s m going to the second." Assuming the
message was from Smith, the Sherrodd driver in the lead, Kinsey
fmmediate1y began gearing down to slow his speed. Ke testified
that he saw Smith's truck in the lane in front of him, either
stopped or moving slowly forward with the left turn signal
flashing. Kinsey then looked into his rearview mirror and saw
plaintiff's truck emerging from the swirling snow. Kinsey pushed
the throttle in a futile attempt ta give plaintiff space to stop,
Plaintiff testified that the Kinsey trailer was in the right
driving lane at the point of impact.
After a three-day trial, the jury returned a verdict for
defendants, finding both plaintiff and defendants negligent and
apportioning 51 percent of the fault to plaintiff.
STANDARD OF REVIEW
We have held that the decision to deny a motion for a new
trial is within the sound discretion of the trial court and will
not be overturned absent a showing of manifest abuse. Tope v. Taylor
(1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50.
I.
Did the District Court commit reversible error when it
incorrectly instructed the jury on comparative negligence?
Plaintiff correctly points out that Jury Instruction No. 17
misstated the law on comparative negligence. That instruction
stated in part that, " [p]laintiff is entitled to recover unless you
find his negligence to be 50% or areater." [Emphasis added]. On
appeal, plaintiff argues that the instruction should have stated
'(greater than 50 percent," rather than "50% or greater." See
5 27-1-702, MCA.
Plaintiff's objection to the District Court's instruction on
comparative negligence is untimely. During settlement of the
proposed jury instructions, plaintiff indicated that he had no
objection to the instruction he now claims is erroneous and
prejudicial. It has long been the rule in Montana that objections
to jury instructions not raised at trial are waived. Frederick v. Hale
f1910), 42 Mont. 153, 112 P. 70; T~ppv.Silver@keiCfi?tingCo. (1924), 70
Mont. 120, 224 P. 272; SiateHighwuy Comrnlnv. Beldon (1975), 166 Mont.
246, 531 P.2d 1324 ; Ahmann v. American Fed. Savings and Loan Assoc. ( 1988),
235 Mont. 184, 766 P.2d 853: seealso, Rule 51, M.R.Civ.P.; Greytakv.
RegOCo. (1993), 257 Mont. 147, 848 P.2d 483.
Despite his failure to object at trial, plaintiff invokes the
"plain errorw rule. That rule allows this Court to review errors
that were not objected to at trial, but result in substantial
injustice to a party by denying that party a fair trial. Rule
1O3(dj, M.R.Evid.; HalUomon v. Halfdo~son (1977), 175 Mont. 170, 573
P. 2d 169. Plaintiff argues that our decision in Stale Bank of Townsend
v. Maryannes, inc. (1983), 204 Mont. 21, 664 I?. 2d 295, controls the
outcome of this case. There, we applied the plain error doctrine
to remand a case for retrial after finding *$inherent
errorttin the
instructions and special interrogatories submitted to the jury.
State Bank of Townselad, 664 P. 2d at 301. However, the opinion also
stated that "[wle are not able to determine what the jury was
instructed to do . . . nor are we able to determine what the jury
actually did. State Bank of Townsend, 664 P.2d at 300.
In this case, although the jury instruction did misstate the
law, an accurate statement of the comparative negligence rule
appeared in the latter part of the same instruction. An accurate
statement of the rule also appeared in Question No. 4 on the
special verdict form, stating, "[i]n apportioning responsibility,
negligence on the part of the Plaintiff does not bar recovery
unless his negligence was greater than the negligence of the
Defendants." Furthermore, when the jury returned with its verdict,
the District Court asked the jurors whether they understood that
the effect of their verdict was that plaintiff would receive no
money. The jurors responded affirmatively.
In Reno v. Encksteirt (19841, 209 Mont. 36, 42, 679 P.2d 1204,
1207-08, we held that "'[pllain error' generally involves an act or
omission of a more serious nature than 'reversible error, ' and only
on rare occasion is the former doctrine invoked in civil cases."
We decline to apply the "plain errorm rule in this case. We
conclude that when plaintiff failed to object to the District
Court's instruction on comparative negligence, he waived his right
to object by post-trial motion or on appeal.
11.
Did the District Court err when it failed to properly respond
to questions asked by the jury?
During deliberations, the jury sent a written message to the
judge stating, "[tlhere appears to be a discrepancy between
Question Number 4 and Instruction Number 1 7 regarding 5 0 percent
rule. . . . If Geiger is exactlv 5 0 ~ercent negligent, is he
entitled to compensation?" The judge responded in writing, "read
Question Number 4 on the special verdict form. 50 percent is not
greater than 5 0 percent." The jury next requested to see the
deposition of an eyewitness. The judge responded that the
deposition was not available to them. Before the jury delivered
its verdict, the District Court informed counsel for both plaintiff
and defendants of the jury's questions and his responses.
In its order denying plaintiff's motion for a new trial, the
District Court relied on our opinion in Fordycev. Hansetr ( 1 9 8 2 ) , 1 9 8
Mont. 344, 646 P.2d 519. There, the jury asked, through the
bailiff, "whether all forms for verdict which had been submitted
had to be filled out . . . ." In response, the bailiff was told to
tell the jury, "only such form as fitted their verdict." Fordyce,
646 P.2d at 521. We held that although it is the better practice
to bring the jury into open court, the innocuous nature of the
communication between the judge and jury did not result in
prejudice to any party. Fordyce, 646 P.2d at 521.
Plaintiff argues that Henrichsv. Todd (1990), 245 Mont. 286, 800
P.2d 710, is more relevant to this case. There, we found
reversible error because the bailiff told the jury that the judge
would not respond to their question "until hell froze over."
Henrichs, 800 P.2d at 712.
Defendants argue that although the attorneys were not present
when the District Court responded to the jury, plaintiff did not
object when the District Court advised the attorneys of its
responses, and that this failure to object precludes plaintiff from
assigning error to the District Court's actions on appeal. We
agree. If there was a more appropriate response or procedure to be
followed, then plaintiff had an obligation to bring it to the
District Court's attention at a time when something could have been
done about it. By failing to do so, he waived his right to raise
this issue by post-trial motion or on appeal.
111.
Did the District Court err when it refused to consider juror
affidavits which set forth evidence of juror misconduct?
With his motion for new trial, plaintiff filed two affidavits
from jurors alleging that another juror had disregarded the
District Court's admonition to refrain from discussing workers'
compensation insurance. The District Court ruled that this was an
insufficient ground upon which to grant a new trial, based on
Rule 606(b), M.R.Evid., which states in part that "a juror may not
testify as to any matter or statement occurring during the course
of the jury's deliberations . . . ." Nor did the District Court
find that any of the exceptions provided in Rule 606(b) applied,
citing Hanyv. Elderkin (198l), 196 Mont. 1, 637 P.2d 809, where this
Court distinguished between external and internal influence upon a
jury. Only where the court finds external influence will there be
sufficient basis to grant a new trial. Hany, 637 P.2d at 813.
Examples of external influence include a juror's telephone call to
obtain information with regard to previous litigation involving the
plaintiff, visiting the scene of an accident and reporting findings
to fellow jurors, or bringing a newspaper article into the jury
room and showing it to jury members. Hany, 637 P.2d at 813.
Examples of internal influence which will not form the basis for a
motion for a new trial include the jury's misapprehension of
evidence or the law, or consideration of defendant's insurance.
The misconduct alleged in this case amounts to internal
influence. We conclude that the District Court did not err when it
refused to consider the affidavits for the purpose of impeaching
the jury verdict.
IV.
Did the District Court abuse its discretion when it rejected
plaintiff's proposed jury instruction regarding the non-appearance
of a defendant?
The District Court refused plaintiff's proposed Instruction
No. 37, which stated,
You are instructed that if a party has failed to
produce a witness within his power to produce, you may,
if you see fit, infer from that, if here given, the
testimony of such witness would not have been favorable
to such party. This rule is applicable, however, if and
only if you believe the situation between such party and
the witness was of a nature whereby with exercise of
reasonable diligence such party could have produced such
witness, further, that a reasonable person in the same
circumstances would have produced such witness if such
party believed the testimony of such witness would be
favorable to such party, further, that no reasonable
excuse exists for the failure of such party to produce
such witness and, further that the witness was not
equally available to the adverse party.
As support for this instruction, plaintiff cites State ex rel. Nagle
v. Naughton (1936), 103 Mont. 306, 63 P.2d 123. Plaintiff contends
that this instruction was required to counter the comments of
defense counsel during voir dire that "[defense counsel] was at
fault for not obtaining the presence of Mr. Smith because Mr. Smith
was a truck driver and could not be found." However, plaintiff
objected to that statement and his objectior; was sustained. Ke
made no request that the jury be admonished to disregard the
remark.
Defendants point out that, as a defendant, Lee Smith was not
required to be present for trial and contend that plaintiff had no
need to call Smith as a witness after plaintiff read Smith's
deposition during plaintiff's case-in-chief. Finally, they argue
that on the last day of trial, defense counsel advised the court
that Smith was available to testify and that although the Court
gave plaintiff an opportunity to reopen his case, plaintiff
declined.
There is no evidence in the record to support defendants8
version of events. However, in his reply brief, plaintiff does not
deny that this is what occurred.
This Court has held that ' [ ] is not reversible error for a
Iit
trial court to refuse an offered instruction unless such refusal
affects the substantial rights of the party proposing the
instruction, thereby prejudicing him. " Cottrell v. Burlington Northern
Railroad Co. (Mont. 1993), 50 St. Rep. 1323, 1327 (citing Payne v.
Sorenson (1979), 183 Mont. 323, 599 p.2d 362). S e e a h , Wirldenv.State
(1991), 250 Mont. 132, 818 P.2d 1190.
We do not decide whether under other circumstances, failure to
give such an instruction would be reversible error. However, based
on the record before us, we are unable to conclude that plaintiff's
substantial rights were adversely affected by the District Court's
refusal to give his proposed instruction in this case. We conclude
that the District Court did not abuse its discretion when it denied
plaintiff's motion for a new trial.
The judgment of the District Court is affirmed.
We concur:
December 22, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, t the following
o
named:
HARRY J . MEHR
Attorney at Law
112 West Towne
Glendive, MT 59330
Peter T. Stanley
McNAMER, THOMPSON, WERNER & STANELY, P.C.
P.O. Box 1980
Billings, MT 59103-1980
Michael W. TolsLedL & Michael P. Heringer
BROWN, GERBASE, CEBULL, FULTON, HARMAN & ROSS
315 North 24th St., P.O. Drawer 849
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT