Rasmussen v. Sibert
| Decision Date | 09 July 1969 |
| Docket Number | No. 11529,11529 |
| Citation | 153 Mont. 286,456 P.2d 835 |
| Parties | Roy RASMUSSEN, Plaintiff and Appellant, v. Paul Wayne SIBERT and Victor Sibert, Defendants and Respondents. |
| Court | Montana Supreme Court |
M. G. McLatchy (argued), Missoula, Tipp, Hoven & Brault, Missoula, for appellant.
Garlington, Lohn & Robinson, Missoula, Sherman V. Lohn (argued), John R. McInnis (argued), Missoula, for respondents.
Plaintiff recovered judgment entered upon a jury verdict for $15,000 as a result of personal injuries sustained in an automobile accident. From an order of the district court granting defendant a new trial, plaintiff appeals.
The accident in question occurred about 4:30 p. m. on August 3, 1966 on a county road west of Missolua leading from the Waldorf-Hoerner plant to U. S. Highway #10. Plaintiff Ray Rasmussen, an ironworker employed by a contractor erecting a boiler building at the plant, was returning to Missoula after his day's work in his 1954 Chevrolet pickup. Plaintiff was slowing down preparatory to stopping in response to a flashing red light at the highway #10 intersection when his pickup was rear-ended by a vehicle driven by defendant Paul Sibert which was traveling in the same direction and behind plaintiff's pickup. The impact propelled plaintiff's pickup across highway #10 and into a plowed field beyond. The impact rendered plaintiff unconscious and he was taken to the emergency room of St. Patrick's hospital in Missoula where he was examined and treated by a physician.
Plaintiff's injuries can be generally characterized as concussion from a blow on the head and an injury to his lower back. The results of these injuries, according to plaintiff, have been intermittent and recurring violent headaches together with constant pain in his lower back of varying intensity. The seriousness of these injuries and their permanency is contested by defendant and the evidence thereon conflicting. The injury picture is otherwise clouded by plaintiff's congenital back condition and by a subsequent fall on the ice by plaintiff about five months after the accident in question.
Following the accident, defendant plead guilty to a charge of careless driving and paid a fine of $25.00.
In May, 1967, plaintiff filed the instant action against defendant and his father. Defendant's answer, in substance, was a general denial. The case came on for jury trial in the district court of Missoula County on May 20, 1968. During the course of trial, at plaintiff's request, defendant's father was dismissed as a party defendant.
During the course of trial plaintiff was being questioned on redirect examination by his own counsel concerning the value of his pickup. The following colloquy occurred:
Some 26 questions and answers later, a recess was taken at which time court and counsel had a discussion concerning what the witness had said about insurance and its audibility to the jury. There apparently was some question as to whether plaintiff had actually said 'their insurance' and if so, whether the jury heard it. The court reporter's notes were checked at that time which showed the plaintiff did use these words. At that time, the presiding judge was of the opinion that the jury did not hear these words.
In his instructions to the jury, the judge, in effect, directed a verdict against the defendant on the issue of liability and submitted the issues of injuries and damages to the jury. The jury returned a 10-2 verdict for plaintiff in the amount of $15,000 and judgment was entered thereon.
Subsequently, defendant moved for a new trial on grounds set forth in section 93-5603, subds. 1, 2, 5 and 7, R.C.M.1947, which can be summarized as follows: (1) Irregularity in the proceedings by which defendant was prevented from having a fair trial; (2) Misconduct of the jury; (3) Excessive damages appearing to have been given under the influence of passion and prejudice; (4) Error in law duly excepted to by defendant.
This motion was made upon the minutes of the court and upon supporting affidavits of six of the trial jurors.
The supporting affidavit of the jury foreman stated (1) that plaintiff mentioned that defendant's insurance man had communicated something to him, (2) that she mentioned during discussion in the jury room the fact that plaintiff knew there was insurance involved, (3) that some of the jurors said they heard about insurance during the trial and some said they did not, (4) that she assumed during the deliberations that defendant was insured and to that extent it affected her verdict, and (5) that she thought that all others on the jury assumed there was insurance and to that extent it affected their verdict.
The other supporting affidavit was signed by five other jurors. These jurors stated therein (1) that the jury foreman's affidavit was correct, (2) that because of the jury foreman's statement in the jury room that plaintiff mentioned something about defendant's insurance man, they assumed defendant had insurance and this materially affected their verdict.
The district court granted defendant a new trial. Although the order itself does not specify the grounds, the trial judge's memorandum attached to the order makes it clear that the basis was that the defendant was denied a fair trial in that the court at the time thought that the jurors had not heard plaintiff's reference to insurance which the subsequent affidavits of the jurors proved not to be the case. The memorandum concludes 'The court finds no merit on the other grounds of the Defendant's motion.'
Plaintiff now appeals from the order of the district court granting defendant a new trial. The issues for review upon this appeal vary in number and content depending on whether plaintiff or defendant is stating them. In our view, the single basic issue is this: Did the district court err in granting defendant a new trial? Determinative of the answer to this question are three underlying issues: (1) the insurance issue, (2) the damage issue, and (3) exclusion of defendant's testimony relating to point of impact.
The thrust of plaintiff's argument on the insurance issue is that a single, unintentional, and nonresponsive answer by plaintiff referring to insurance is not prejudicial per se requiring a new trial. Plaintiff further argues that in any event, defendant waived this error by his failure to object, ask for an admonition, move for a mistrial, or request a corrective jury instruction, preferring to take his chances with the jury; as a consequence, defendant is estopped from using this ground as a basis for a new trial after an adverse jury verdict. Finally, plaintiff contends that juror affidavits cannot be used to impeach the jury verdict in this case because no jury misconduct was involved.
On the other hand, defendant argues that the reference to insurance was injected into the case by plaintiff himself and that its prejudicial effect on the defendant and the verdict against him stands uncontradicted by the affidavits of six jurors. Defendant further contends that under the unusual circumstances involved in this case where both the court and counsel doubted that the jury had heard the reference to insurance, defendant was not required to request corrective action for to do so would not only have been a useless act but would in itself have injected the insurance issue in the minds of the jurors where none existed before. In any event, according to defendant, no manifest abuse of discretion by the trial court in granting a new trial is shown under these circumstances. Finally, defendant justifies the use of juror affidavits to prove the true facts because it was the only method available to him, it was not a frivolous or recurrent invasion of the right of the jury to deliberate in privacy uncontaminated by the threat of subsequent public exposure of their deliberations, and in any event the value of a fair and impartial trial in our judicial system outweighs the value of privacy in jury deliberations.
Initially we observe that it cannot be determined with certainty whether the district court's order granting a new trial was based on subd. 1 or subd. 2 of section 93-5603, R.C.M.1947. In our view subd. 2 authorizing a new trial in case of misconduct of the jury is clearly inapplicable in the instant case. Here there was no misconduct of the jury-plaintiff referred to 'their insurance' in his testimony at the trial, this reference was brought to the juror's attention by the foreman in the jury room, some of the jurors assumed that the defendant had insurance, and to that extent it materially affected their verdict. The jury had not been instructed or admonished to disregard this testimony, nor was there any reason for the jury to believe they should do so. On this basis the instant case is clearly distinguishable from cases involving jury misconduct (1) in considering...
To continue reading
Request your trial
-
Henricksen v. State
...a reasonable compensation for the destruction of his capacity to pursue an established course of life." Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835, 841. ¶ 77 In this case, expert medical testimony was introduced at trial which described Kristin's PTSD symptoms. The expert ......
-
Durden v. Hydro Flame Corp.
...testimony and incidents of attorney misconduct on which the court based its decision. Chief cites our decision in Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835, for the rule that, with respect to improper testimony and argument, a litigant's failure to object, move to strike or fo......
-
State ex rel. State Compensation Mut. Ins. Fund v. Berg
...the jury under § 25-11-102(2), MCA. Rieger v. Coldwell (1992), 254 Mont. 507, 512, 839 P.2d 1257, 1260 (citing Rasmussen v. Sibert (1969), 153 Mont. 286, 293, 456 P.2d 835, 839). In Rasmussen, we [J]uror affidavits are not permissible in support of a motion for new trial under subd. 1 of se......
-
Werre v. David
...pain and suffering; all that is required is that the jury exercise calm and reasonable judgment in its award. Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835, 841. Here, approximately 35 years passed between Kenneth's sexual abuse of Joann and the trial in this case, during whi......