Putro v. Baker, 10976

• Decision Date: 02 February 1966
• Docket Number: No. 10976,10976
• Citation: 410 P.2d 717,147 Mont. 139,23 St.Rep. 125
• Parties: Judith Grace PUTRO, Plaintiff and Respondent, v. Eugene Eddy BAKER and Mannix Electric, Inc., a Montana Corporation, Defendants and Appellants.
• Court: Montana Supreme Court

Page 717

410 P.2d 717

147 Mont. 139

Judith Grace PUTRO, Plaintiff and Respondent, v. Eugene Eddy BAKER and Mannix Electric, Inc., a Montana Corporation, Defendants and Appellants.

No. 10976.

Supreme Court of Montana.

Feb. 2, 1966.

As amended Feb. 10, 1966.

Small & Cummins, Helena, Smith & Emmons, Great Falls, Michael J. O'Connell, Bozeman, Floyd O. Small (argued), Helena, for appellants.

DeKalb, Mondale & Johnson, Lewistown, Robert L. Johnson (argued), Lewistown, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal from an award to plaintiff, Judith Grace Putro, of $75,000 compensation for personal injuries she suffered in an automobile-truck collision, by a ten to two jury verdict in the Cascade County District Court of the Eighth Judicial District.

The plaintiff-respondent was a passenger in an automobile driven by her brother; the truck was owned by defendant, Mannix Electric, Inc., and was driven by its employee, defendant Eugene Eddy Baker. Prior to the jury being given the case to consider the evidence, defendants asked for a mistrial due to an unnoteworthy and untimely news item appearing in the 'Great Falls, Tribune' to which the jurors had been exposed. The article contained a reference to a guilty plea by defendant, Eugene Eddy Baker, to a manslaughter charge for two deaths arising out of the same collision (Miss Putro's aunt and uncle, Armilda and Travis Jaynes, the owners of the automobile involved). By pretrial order, on stipulation of the parties, any reference to the criminal matter had been barred from the civil suit. The presiding judge, the Honorable Paul Hatfield, reserved a ruling on the motion, taking it under advisement pending return of the verdict and of a polling of the jurors to ascertain what influence, if any, the article played in their deliberations. After satisfying himself that defendants' rights had not been prejudicially affected, Judge Hatfiedl entered judgment on the verdict, denying defendants' motions both for a mistrial and for a new trial. Due to the fact that it is our decision that the motion for mistrial should have been granted, consequently we will limit our review to that single specification of error in the proceedings below.

The collision, out of which this action arose, occurred on a hill about three miles west of Stanford, Montana, at about 8:50 A.M., on December 19, 1961. The morning was cold, it was snowing lightly, and the hill was snowpacked and slick. No sanding had yet been done at that early morning hour. Plaintiff alleged that defendant, Baker, negligently drove the truck over the center line into the lane of oncoming traffic and that her injuries were proximately caused from his negligence. Defendants pleaded that due to the road conditions, Baker lost control of the truck and could do nothing to avoid the accident. Plaintiff and her brother Kenneth, who was driving, were seriously injured. Their aunt and uncle, Mr. and Mrs. Jaynes, were killed.

A charge of manslaughter for the death of Mrs. Jaynes was filed against defendant, Eugene Eddy Baker, in the Judith Basin County District Court to which he entered a plea of guilty and was given a suspended sentence. As will hereafter appear the matter of this criminal charge and plea had been dismissed at a pre-trial conference. During the cross-examination of Mr. Baker in the presentation of the defendants' case, Mr. Johnson asked, 'Was your conduct in getting into this collision in any way wrongful?' Mr. Baker replied, 'Not that I recall.' Mr. Johnson then queried, 'Would you say you are entirely innocent?' Mr. Baker answered, 'Yes.'

After the defendants had closed their case, the court called for rebuttal. Mr. Johnson asked that Mr. Baker be recalled for questioning alleging that his testimony denying any wrongful conduct in the collision and in asserting his innocence came as a 'surprise' to the plaintiff and was not as plaintiff 'expected it to be.' The court sustained defendants' objection to the move. Mr. Johnson then asked that he be allowed to make an offer of proof. The court excused the jury and heard the matter in the open courtroom. The offer of proof was an attempt to introduce as an admission against interest, Baker's guilty plea to the manslaughter charge. Mr. Johnson justified his action by asserting that Mr. Baker 'said he was innocent of any wrongdoing. I didn't expect any lie.' The court barred and reference to the criminal matter from the trial and the record in this connection reads:

'The Court: And we were assured at that time [pretrial conference] you were not going to use this. Now, we pre-trialed this case all summer, and I told you at least fifteen to twenty times that the purpose of the pre-trial is to get the issues joined. That we do have disclosure, that we do not play games, that the purpose of this trial is to elicit the truth, all of it. And you were aware that this particular thing was very important to your case and you have been, ever since you obtained the case or the guilty plea was entered. Now, you come in here and play games with this Court. I will not allow it, and I can think of about six reasons why you are wrong from a legal standpoint at this time, and just to show you I meant what I said I'm going to not allow you now to use this conviction.

'Mr. Johnson: So I may completely understand the ruling of the Court, Your Honor, I wish to apologize if I misunderstood the import of your earlier remarks, and I do wish to say parenthetically that had defendant Baker said 'yes,' I think I was worng', we would never bring in a prior inconsistent statement. Now, the offer of proof I make is this: That we offer to prove merely a prior inconsistent statement, not a conviction of a felony. We have no intention at this time or any other time of introducing a record of a conviction of a felony, and I wish to inquire of the Court whether I can call other witnesses on rebuttal to prove this inconsistent statement.

'The Court: In my mind, Mr. Johnson, it isn't inconsistent. He answered your question, he has a right to do that. You had a duty to prove your case, you do not do that by cross-examination, except where it might happen to come in, and I, personally, being a lawyer, as well as a Judge have wondered why you were proceeding this way, and I can only assume, Mr. Johnson, that you were playing games with the Court, and with Mr. Small. Now, this is a very serious matter, and I don't want to jeopardize your client for what you did, and I sometimes lose my temper and I may be doing that here now, and I think I'm going to take a little recess and I think all counsel will come to Chambers, and we will discuss this further there.'

Even though the jury were not present to hear this lengthy and torrid discussion of the matter, a reporter from the Great Falls Tribune newspaper was. The following morning, the day on which the case was to be given to the jury, there appeared the following news item in that paper:

'DAMAGE SUIT TESTIMONY COMPLETED

'Members of a District Court jury this morning are scheduled to hear final arguments and receive instructions in a $407,534 damage action.

'Presentation of testimony was completed Thursday afternoon in the trial of the action brought by Judith Putro Wells against Eugene Eddy Baker, driver of a truck which was involved in collision December 19, 1961, with one in which the plaintiff was riding, and Mannix Electric Co.

'The plaintiff rested at noon and the defense with testimony by Baker, his employer, Cornelius Mannix, and Dr. Thomas Power, rested in mid-afternoon.

'Then Robert Johnson, Lewistown, one of the attorneys for the plaintiff attempted to recall Baker as a rebuttal witness. The move was resisted by Marvin J. Smith and Floyd Small, defense attorneys.

'Arguments after the jury was excused brought out that Baker and pleaded guilty to manslaughter at Stanford in connection with auto deaths of Mr. and Mrs. Travis Jaynes, aunt and uncle of the plaintiff. The recall of the witness was related to the subject and both Judge Paul G. Hatfield and defense recalled that Johnson said during pre-trial that he would not introduce this into the case. The Court denied the rebuttal attempt.

'On the witness stand, Baker contended that when his car collided with the car driven by Kenneth Putro, brother of the plaintiff, he skidded on the icy highway.'

On the day this article appeared and after the court was called into session but before the trial resumed, defendants' counsel moved for a mistrial upon the assumption that the article must have been read by some of the jurors before they appeared in court that morning. The court took the motion under advisement, deciding to hear the verdict of the jury first and then to poll each juror to ascertain how many may have read the article and whether it had influenced their verdict in any way. In conducting the poll it was soon brought to light that all the jurors had been exposed to the article before the verdict was announced because one of them had clipped it from the paper and had carried it in her handbag to the jury room. The record reveals the following history of the article in the jury room:

'The Court: Did you have a newspaper in the jury room?

'Mr. Lazure: This lady had a piece cut out.

'Mrs. Prinzing: In my handbag.

'The Court: The piece out of the paper was in the jury room?

'Mrs. Prinzing: In my handbag, yes, this morning.

'The Court: Well, after you retired to the jury room----

'Mrs. Prinzing: Then afterwards I got it out and we all read it. We talked about it and wondered.

'The Court: All right. Now, the next question to ask you, just so the record is clear here--when did Mrs. Prinzing present the article out of the Tribune?

'Mrs. Lodge: It was presented before an opinion was reached, but I and some of the others refused to read it before we reached a verdict.

'The Court: I will ask the foreman, Mr. Lazure, did part of the discussion there in reaching...