No. 81-507
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
JAMES FORDYCE and TIIELPW FORDYCE ,
Plaintiffs and Appellants,
VS .
LEE HANSEN,
Defendant and Respondent.
Appeal from: District Court of the Tenth Judicial District,
In and for the County of Judith Basin
Honorable LeRoy L. McKinnon, Judge presiding.
Counsel of Record:
For Appellants:
B. Miles Larson, Stanford, Montana
For Respondent:
John R. Christensen, Stanford, Montana
Submitted on briefs: March 25, 1982
Decided: June 10, 1982
Filed: JUN 1 O 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiffs appeal from an order denying their motion
for a new trial following a jury trial in the District
Court, Tenth Judicial District. They base their appeal on
two issues: 1) Was there such an irregularity in the
proceedings of the court that the substantial rights of the
plaintiffs were affected? 2) Was there newly discovered
evidence material to plaintiffs' case which could not, with
reasonable diligence, have been discovered and produced by
them at trial?
Defendant Lee Hanson, on about May 1, 1980, placed a
newspaper advertisement for sale of a "barrel horse" with
"lots of spirit, $1,500."
Plaintiff James Fordyce therafter went to Hansen's
ranch to inspect the animal. After looking at it, he
expressed a concern that it might have a "navicular" disease.
Hansen assured him that the horse was sound. Hansen also
informed him that there wereseveral other prospective buyers
for the horse, but no deal was made at that time.
Later that day, Thelma Fordyce called Hansen to tell him
they would take the horse.
Two days later, James Fordyce and his three daughters
went to Hansen's ranch to pick up the horse. They paid for
the horse with a cashier's check and left with the bill of
sale and registration papers. This transaction took
approximately two hours because arrangements had been made
to have the horse shod. The Fordyce's did not attempt
to ride the horse during this time, nor had James Fordyce
ridden the horse on his initial visit to the Hansen ranch.
The Fordyces returned to Lewistown where they saddled
the horse, rode it, and took it to a nearby arena. There,
13 year old Teresa Fordyce, for whom the horse had been
purchased, attempted to run the horse through the barrels.
Despite her 3 to 4 years of experience as a barrel racer,
she was unable to make the horse perform. After 5 or 6
attempts, the effort was abandoned and they all went home.
The next day, James Fordyce took the horse back to
Hansen's ranch and demanded his money back because it was
"not a barrel racing horse." Hansen told Fordyce that he
had already advised other buyers that the horse had been
sold, so he was not anxious to have it returned. He did
offer Fordyce $1,200, which Fordyce refused, returning all
papers except the bill of sale. He also left the horse,
which remained on Hansen's ranch from that day in early May
1980, until after the trial in June 1981, when it was
returned to the Fordyces.
Plaintiffs brought this action in October 1980 to
recover the $1,500. Hansen counterclaimed for the costs of
boarding the horse, at $1.25 per day, from May 1, 1980 until
it was removed from his premises by the plaintiffs.
Trial was held on June 3, 1981. The jury found against
the plaintiffs and awarded the defendant $485 on his counter-
claim. After judgment, plaintiffs filed a motion for a new
trial, the denial of which is the basis for this appeal.
The first issue raised by the Fordyces is that they
are entitled to a new trial because, while the jury was
deliberating the cause, "at least two questions were asked
by the jury of the district judge by and through the bailiff."
The amended motion for new trial states that such questions
and answers occurred out of the presence of counsel for the
plaintiffs. The motion is supported by the affidavit
of Thelma Fordyce, but the affidavit does not specify
what the questions were.
In denying the new trial, the district judge, after
a hearing on the motion, stated in his order that the
question asked by the jury through the bailiff was "whether
all forms for verdict which had been submitted had to be
filled out, to which the bailiff was told to tell them to
use only such form as fitted their verdict."
Of course the better practice, to avoid error, would
have been to conduct the jury into court for the desired
information, pursuant to section 25-7-405, MCA. However,
because of the innocuous nature of the communication to the
jury here, we find no prejudicial error. The ultimate
inquiry is whether this irregularity affected any substantial
right of the plaintiffs. Galiger v. Hansen (1957), 133 Mont.
34, 42, 319 P.2d 1051, 1055-56, and we find none was so
affected.
The second issue presented by Thelma Fordyce's post-
trial affidavit is the implication that the district judge
knew the verdict before it was rendered because he stated
to Thelma: "What are you going to do with the horse now,
you got him back. "
Again, in the order. denying the new trial, the district
judge found that "the judge spoke to the little girl,
daughter of the plaintiffs, to ask if she got the horse back
she would be able to ride in this season [sic] races. It
is true that the plaintiff, Thelma Fordyce answered without
giving the daughter opportunity to do so; that at that time
the judge did not know what the verdict would be."
We find no error of any kind in the second issue.
Once a District Court has considered and denied
motion for new trial, this Court will not lightly disturb
that ruling absent evidence that is clear, convincing and
practically free from doubt of the trial court's error.
Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343, 420 P.2d
316, 317-18. No such showing is made here.
Appellant's third issue is derived from section 25-11-
102(4), which states as grounds for a new trial, "newly
discovered evidence material for the party making the
application which he could not, with reasonable diligence,
have discovered and produced at the trial."
The claimed newly-discovered evidence here comes from
the affidavit of Boyd Emond, D.V.M., who inspected the horse
after the Fordyces retrieved it. He found that the horse
was suffering from a navicular bone disease and suggested
that it not be ridden in the future.
The District Court, in its order denying a new trial,
stated that this evidence was available before trial and we
agree. Where additional evidence comes to light, the party
moving for a new trial must demonstrate that it was not lack
of diligence which failed to turn up the new evidence at an
earlier time. Giles v. Flint Val. Forest Products (19791,
179 Mont. 382, 385, 588 P.2d 535, 537. See ~erriganv.
Kerrigan (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535.
Here, Fordyce, on his initial inspection of the horse,
suggested that it had a navicular disease, but did not have
it inspected. Neither was it inspected at any time before
it was returned to Hansen's ranch. Furthermore, no motion
for discovery was filed during the course of the litigation.
The evidence was available at all times. It could have been
discovered and produced at trial with reasonable diligence.
Respondents contend this appeal is frivolous. It is
indeed close to the line of frivolity. We have determined
to resolve doubt in favor of appellants, and do not assess
any damages on that account.
A£ firmed.
, : Justice
F e Concur:
J
?z'b,R& (;ac,
Chief Justice