dissenting:
Of the ten issues discussed in the majority opinion, I disagree with conclusions reached in eight. I will address each in the same order as the majority opinion.
The District Court refused to grant a mistrial regardless of testimony at trial concerning the death of John Gurnsey’s wife. I believe that the lower court judge is in a much better position than this reviewing court to determine the impact of statements made during trial. The District Court judge did not deem the comment critical or prejudicial enough to warrant a mistrial. I would not overrule the District Court’s judgment on this issue. Also, the jury verdict does not reflect that the jury was swayed by Gurnsey’s comment about his wife. The award for compensatory damages was barely above Gurnsey’s actual crop loss.
I would also affirm the District Court on the introduction of evidence concerning insurance carried by Conklin Co. The evidence was not admitted to show the existence of insurance or to prove negligence or liability of the party. The evidence was critical only to the issue of fraudulent and deceitful sales tactics on the part of Conklin’s salesmen. As such, it was relevant and admissible.
The gran ting, of a severance of trials for the purpose of establishing liability versus bad faith placed appellants in an awkward situation at trial. Much of the evidence relevant to proving bad faith was also relevant to proving liability. The admission of a letter written by Mang to the Department of Agriculture is such a piece of evidence. The letter was properly admitted at the trial to establish Conklin’s liability, even though it may also be relevant as to the issue of bad faith at a later trial. Mang’s solicitation of help from the Department of Agriculture goes toward proving Conklin’s business practices and the resulting damages to appellants.
Admission of the deposition testimony of other farmers who had used FEAST was not reversible error. The testimony was not offered to prove FEAST’s capabilities or lack thereof. It was offered as evidence of Conklin's fraudulent representations to farmers depicting FEAST as a full fertilizer program. The testimony does not fall under hearsay, Rule 801, M.R.Evid., and was properly admitted.
I acquiesce in the holding that the special verdict form could have been better written. However, as presented to the jury, it was not *57inaccurate or misleading enough to justify a retrial. The special verdict form, read together with all jury instructions, adequately informed the jury of the applicable laws, definitions and criteria which must be met before finding Conklin liable and awarding damages.
In my opinion, the issue concerning the giving of an instruction comparing “like conduct” should also be affirmed. There is nothing in the record which suggests that either Mang or Gurnsey acted in a willfully reckless manner. If anything, appellants are guilty of being ignorant as to the capabilities of FEAST. Conklin agents knew, or should have known, enough about the product which they were selling to correctly inform the farmers. Because of this expertise as sales representatives, Conklin’s employees should be held to a higher standard of conduct than purchasers of FEAST. There is no need to compare like conduct. To do so inaccurately raises appellants’ standard of care and required degree of knowledge to that of respondents.
Given the facts of this case, the instruction given concerning emotional distress was not in error. Both Mang and Gurnsey had physical problems which were complicated and exaggerated by the conduct of Conklin’s employees. The “substantial invasion of a legally protected interest” language would be appropriate where there was no manifestation of physical harm caused by emotional distress.
As with the preceding issues, the majority would also reverse because of an alleged error by the District Court in giving an instruction on independent contractors. As with the preceding issues, I disagree with the majority.
It seems obvious from the facts that Conklin’s salesmen were much more than independent contractors, excusing Conklin from any liability for their actions except in the case of negligent hiring which caused physical harm to third parties. Giving instruction No. 48, as quoted by the majority, was not an inaccurate statement of the law under the facts of this case.
I do agree with the majority opinion that where “defendants’ net worth does not support an award of punitive damages in the amount plaintiffs seek, . . . it is up to the defendant to bring in evidence if the plaintiff does not do so.” Likewise, I agree that the videotape offered as evidence by Conklin was properly refused Gurnsey, admission by the District Court.
In careful consideration of the complete record and evidence sub*58mitted to the jury, I would affirm the verdict of the jury on all issues.
MR. JUSTICE SHEEHY concurs in the foregoing dissent.