NO. 87-546 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

TIM ZIMMERMAN, individually and as 

Personal Representative of the Estate 

of DAN ZIMMERMAIJ, 

Plaintiff and Appellant, 

-vsBOZEMAN PRODUCTION CREDIT ASSOCIATION, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard J. Haxby, Butte, Montana 

For Respondent: 

Michael J. Lilly; Lilly, Andriolo & Schraudner, 

Bozeman, Montana 

Submitted on Briefs: June 19, 1988 

Decided: August 8, 1988 

306 8 1988' 

~i led : 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Tim Z immerman , individually and as Personal 

Representative of the estate of Dan Zimmerman, appeals from 

the judgment of the District Court of the Eighteenth Judicial 

District, Gallatin County, entered upon a jury verdict. The 

jury found on a special verdict form that defendant Bozeman 

Production Credit Association (hereafter referred to as PCA) 

did not wrongfully convert certain farm equipment. We 

affirm. 

Appellant frames three issues for review by this Court: 

1. "Is the Jury's verdict in error in that it was not in 

conformance with the preponderance of the evidence?" 

2. "Were the improper comments during closing argument 

of the Respondent's counsel of sufficient magnitude as to be 

error, which would mandate a reversal of the verdict?'' 

3. "Was the court's giving of Respondent's instructions 

11 and 18, over the objection of the Plaintiff, error, and if 

so, was it error of sufficient magnitude that would warrant a 

reversal of the decision herein?" 

Certain facts of this case are disputed, but a summary 

of those facts important to the above issues are as follows: 

In 1981, Dan Zimmerman entered into a lease for farm 

land near Dillon, Montana, with the intention of moving to 

that area to go into the farming business. In order to 

pursue farming operations on the leased land, Dan Zimmerman 

purchased an Allis-Chalmers 7060 tractor, an Allis-Chalmers 

26-foot disc and a Rollflex 26-foot tool bar for a total. 

price of $44,000. He made a down payment of $15,000, and 

financed the remainder through PCA's Dillon office. 

In January of 1982, Dan Zimmerman was killed in an 

airplane crash. His brother, Tim Zimmerman, was appointed 
personal representative of his estate. Dan Zimmerman had 

credit life insurance through PCA that paid the balance owing 

on the farm equipment in question. However, the farm lease 

remained an obligation of the estate. The Zimmerman family 

contacted Jerry Ryan, a friend of the deceased who lived in 

the Dillon area, about taking over the farm lease. He 

agreed, but informed the Zimmermans that in order to farm the 

additional land, he would need more equipment. The 

Zimmermans agreed to allow Ryan to use the equipment 

purchased by Dan Zimmerman to farm the leased land, which he 

did for the 1982 season. 

During January of 1983, Ryan contacted PCA' s Dillon 

office about renewing his operating loan for the 1983 farming 

season. On his application forms for the loan, and later on 

the loan financing statement, Ryan listed the Allis-Chalmers 

tractor and 26-foot disc as collateral. The purpose of 

placing this equipment on the forms was disputed at trial. 

PCA asserts Ryan represented to their employee that he 

had arranged to purchase the equipment from the Zimmermans, 

giving an $8,000 down payment with the balance to be paid in 

November of 1983. Tim Zimmerman (hereafter referred to a 

Zimmerman), on the other hand, argues that the equipment was 

listed in the application documents at the behest of the PCA 

employee, even though Ryan told him that he was only using 

the equipment and would not purchase it until November. 

In the fall of 1983, Ryan defaulted on his loan from 

PCA . PCA took possession of all the items listed as 

collateral in the financing statement, including the tractor 

and disc at issue here. Zimmerman sought the return of the 

equipment, which PCA refused. On July 18, 1985, Zimmerman 

filed a complaint seeking possession of the equipment, as 

well as actual and punitive damages. The verdict was 
returned in favor of PCA and judgment entered, and this 

appeal ensued. 

I. 

Zimmerman first asserts that the jury's verdict was in 

error in that it did not conform with the preponderance of 

the evidence. The rule in this Court is that a jury's 

verdict will not be overturned if there is substantial 

evidence in the record to support the jury's finding. Lane 

v. Dunkle (Mont. 1988), 753 P.2d 321, 45 St.Rep. 686, and 

cases cited therein. 

The record in this case supports the jury's verdict. 

PCA's Exhibit C introduced a trial is a security agreement 

dated February 11, 1983, between Jerry and Colleen Ryan and 

PCA. The agreement lists collateral pledged by the Ryans to 

secure an $87,609.00 loan. Included in that list is an 

Allis-Chalmers 7060 tractor and 26-foot disc, subject to a 

lien held by "B. Zimmerman." PCA's Exhibit H is a financial 

statement signed by the Ryans, which lists $23,500 as being 

owed to "Zimmerman" for the tractor and disc. 

Peter Moe, the PCA employee who negotiated the Ryans' 

loan, testified at trial regarding PCA's Exhibit H. He 

stated the information was entered on the financial statement 

as the result of Ryan telling Moe that he had arranged the 

purchase of the equipment at issue from Zimmerman on the 

terms stated above. Moe testified that the money owed on the 

equipment was entered on the form as a liability for use in 

calculating Ryan's ability to repay the PCA loan. 

PCA also offered testimony by its employees Bruce Parker 

and Boyd Hanson concerning telephone conversations they had 

with Bob Zimmerman, another brother of the deceased, after 

PCA took possession of the equipment at issue. In those 

conversations, Bob Zimmerman confirmed that a sale of the 

equipment to Ryan had taken place. The testimony of these 
employees was buttressed by PCA's Exhibit GI a letter from 

Hanson to Bob Zimmerman confirming the contents of their 

telephone conversation. The letter asked for a written 

response if any of the information was incorrect, but no 

response was received. 

While Zimmerman presented evidence supporting his 

version of the facts at issue, our function is not to agree 

or disagree with the verdict rendered by the jury. We simply 

review the record to search for sufficient evidence upon 

which the verdict could be based. Kleinsasser v. Superior 

Derrick Service, Inc. (Mont. 1985), 708 P.2d 568, 42 St.Rep. 

1662. The record contains probative facts sufficient to 

support the jury's verdict that PCA did not wrongfully 

convert the equipment. 

11. 

Zimmerman next asserts that PCA's attorney made improper 

comments to the jury during closing argument that were 

sufficiently prejudicial to require reversal of the jury's 

verdict. The record shows, however, that Zimmerman's counsel 

did not object to the allegedly prejudicial comments at 

trial, and in fact responded to them in his own closing 

argument. 

Generally, under Rule 103, M. R.Evid. , failure to object 

waives a claim of error unless a substantial right of the 

party is affected. Clark v. Norris (Mont. 1987), 734 P.2d 

182, 44 St.Rep. 444. However, Zimmerman draws our attention 

to subsection "d" of Rule 103, which states that a trial or 

appellate court is not precluded from "taking notice of plain 

errors affecting substantial rights although they were not 

brought to the attention of the court." Rule 103(d), 

M.R.Evid. 

The "plain error doctrine" is used only in exceptional 

cases. Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 
1204. The comment complained of by Zimmerman was an instance 

of "wondering aloud" by PCA's counsel as to why Ryan's wife 

was not called as a witness, because she was present when 

Ryan allegedly told Moe he had purchased the equipment at 

issue. While Zimmerman does not set forth the particular 

right this comment is to have affected, it appears from his 

brief that he is asserting his right to a fair trial. 

However, we do not see evidence in the record of this case to 

indicate that Zimmerman's right to a fair trial was affected. 

We decline to apply the plain error doctrine, and instead 

rest on the general rule stated above that Zimmerman's 

failure to interpose timely objection to the comment 

precludes him from raising this alleged error on appeal. 

Zimmerman's final assertion is that the District Court 

committed reversible error in giving PCA's jury instructions 

11 and 18. Zimmerman's brief on this point concludes, "The 

contentions of the Appellant in this case are that the 

instructions given were so erroneous and conflicting that the 

jury could not, without broad legal experience and expertise, 

separate one from the other to come up with what is a correct 

statement of the law as a whole ... " 

At trial, Zimmerman's counsel objected to the 

instructions on grounds other than those argued to this 

Court. The objection to instruction 11 was that it did not 

fit the facts as presented at trial and might therefore 

mislead the jury. The objection to instruction 18 was that 

it referred to a creditor's right to possession of collateral 

without specifying that such collateral had to be "lawfully 

obtained." At no point did counsel state that the two 

instructions conflicted. 

In Reno, 679 P.2d at 1209, we stated, "Plaintiffs will 

not be heard to challenge on appeal an instruction for 
reasons not raised before the trial court. Rule 51., 

M.R.Civ.P. requires that the grounds for objection to jury 

instructions must be stated with particularity." The ruling 

in Reno is dispositive of this issue. Zimmerman will not be 

allowed to raise an objection to the instructions in this 

Court that was not presented to the District Court. 

We affirm the judgment of the District Court. 

We concur: /// 

- ) / ChMf Justice /' 

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