No. 81-467 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

BONITA NELSON, 

Plaintiff and Respondent, 

HARRY HARTMAN, an individual and 

DONLAN RANCH, a business doing business 

in Gallatin County, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, The Honorable 

Robert M. Holter, Judge presiding. 

Counsel of Record: 

For Appellant: 

Lyman H. Bennett, 111, Bozeman, Montana 

For Respondent : 

Kirwan & Barrett, Bozeman, Montana 

Submitted on Briefs: May 6, 1982 

Decided : 

aus 5 MI2 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

This is an appeal of the July 1, 1981, order of the 

Eighteenth Judicial District Court of Montana granting 

respondent's motion for a new trial. Because sufficiency of 

evidence is a critical question on appeal, we hereafter 

detail the trial record. 

At 11:OO A.M., October 1, 1978, a pickup truck driven 

by appellant, Harry Hartman, was in a collision with the 

vehicle in which respondent, Bonita Nelson, was riding. The 

accident occurred on United States Highway 191, approximately 

seven miles south of Bozeman, Montana. 

Mr. Hartman, as an employee of the Donlan Ranch, was 

helping move Donlan cattle one and one-half miles south down 

Highway 191. Mr. Hartman drove a pilot car leading the 

cattle. Alan Atchison was a passenger in Hartman's truck. 

Other ranch employees were driving a second pilot car behind 

the cattle. 

Mr. Hartman testified that he drove down the center 

line of the highway with flashers activated in front, on top 

and behind the truck. To further attract the attention of 

other drivers, he manually flashed the headlights at oncoming 

traffic. 

The Donlan Ranch road was to Mr. Hartman's left. On 

approaching that road, Hartman stated he checked the rearview 

mirror. He saw the cattle and two vehicles directly behind 

him, proceeding at the same slow rate of speed as he. The 

second pilot car was approximately a quarter mile back. 

Hartman testified he signaled and proceeded to turn 

left into the ranch road, with his emergency flashers operating. 

The Nelson vehicle was overtaking and passing Hartman's 

truck at that same time. A collision ensued. 
Alan ~tchison, the passenger in 3artman's truck, testified 

for defendant. He stated that while walkinq behind the 

truck, with the cattle, he had observed the truck's rear 

lights flashing. Mr. Atchison was riding inside the cab 

when the accident occurred. He said he checked the traffic 

prior to Hartman's left turn. He testified to seeing the 

cattle and two cars immediately behind the truck, moving at 

approximately 15 to 20 miles per hour. He did not see the 

Nelson vehicle. 

Mrs. Nelson testified that she, her husband and four 

grandchildren were enroute to Idaho when the accident occurred. 

She checked behind their stationwagon as Mr. Nelson started 

to pass. She saw no vehicles approaching from the rear, 

then turned forward and saw the pickup immediately in front 

of them. She did not recall seeing any cattle. 

James Wayment, a north-bound motorist, testified that 

he saw a left-turn signal on Nelson's vehicle, but saw no 

lights whatsoever on the truck driven by Hartman. He also 

observed no cattle on the road. 

Up until the weekend prior to trial, Boyd Nelson was 

also a plaintiff in this suit. His claim was settled for 

$12,650. A motion in limine regarding contributory negligence 

of Boyd Nelson, driver of the car in which respondent was 

riding, was granted the first day of trial. When Nelson 

took the stand, he testified only regarding his wife's 

injuries and how they affected the work she did for the 

family business. No other witnesses were called on the 

liability issue. 

On the first day of trial, counsel for plaintiff was 

advised by the court that testimony regarding Mr. h art man's 

bad driving record would not be admitted unless a foundation 

was first laid. The foundation had to establish a clear 
connection between Mr. Hartman's operating the truck as an 

unlicensed, habitual offender driver and Mrs. Nelson's 

injuries. No such foundation was laid and the evidence was 

not admitted. 

The jury returned a verdict in favor of defendants, 

Harry Hartman and Donlan Ranch. Judgment was entered April 

30, 1981. A motion for new trial followed. The motion was 

granted for the following reasons: 

(1) It was error to exclude evidence of Mr. Hartman's 

past driving record. Such evidence was relevant to the 

issue of Mr. Hartman's capabilities as a driver as well as 

to the issue of punitive damages; 

(2) The jury's verdict was contrary to the evidence 

presented at trial; and 

(3) Discussion by both counsel of the exercise of a 

preemptory challenge as to one juror was improper and 

affected the jury in its deliberations. 

Defendant contends that the District Court abused its 

discretion by granting the plaintiff's motion for a new 

trial. We find that the District Court did abuse its discretion 

on each of the three grounds and reverse the order granting 

respondent a new trial. 

We do not agree with the trial court that it was error 

to exclude evidence of Mr. Hartman's past driving record. 

The evidence was not unconditionally excluded. Rather, 

counsel for respondent was told such evidence would be 

admitted if a proper foundation linking appellant's driving 

record with respondent's injuries was first laid. No foundation 

was laid. The evidence was not allowed. 

Evidence that a driver has no license and has been 

designated a habitual offender for driving purposes is 
highly prejudicial. Such evidence could only be relevant to 

an issue of competency and could not be used to prove any 

specific act of negligence here at issue. The court was 

correct in originally demanding that a proper foundation be 

laid prior to admitting the evidence. Further, since the 

jury failed to find appellant liable, there was no error in 

failing to admit appellant's driving record for punitive 

damages purposes. There can be no punitive damages without 

actual liability entitling Nelson to actual damages. Galiger 

v. Hansen (1957), 133 Mont. 34, 319 P.2d 1051; Smith v. 

Krutar (1969), 153 Mont. 325, 457 P.2d 459. 

The District Court's second ground for granting respondent 

a new trial was that the jury verdict was contrary to the 

evidence. A trial court's denial of a motion for new trial 

is granted greater deference than a motion which has the 

effect of nulliying a jury verdict. This Court will not 

hesitate to reinstate the verdict which is supported by 

substantial evidence. Beebe v. Johnson (1974), 165 Mont. 

96, 526 P.2d 128, citing Campeau v. Lewis (1965), 144 Mont. 

543, 398 P.2d 960. 

The evidence here presented at trial was in conflict. 

When testimony at trial includes different accounts of an 

event, the trial court cannot overturn a jury verdict or 

grant a new trial solely because it choses to believe testimony 

different than that believed by the jury. Yerkich v. Opsta 

(1978), 176 Mont. 272, 577 P.2d 857. To honor this action 

would create a bench supremacy and sap the vitality of jury 

verdicts. There is substantial credible evidence to support 

the jury's verdict and the verdict should be reinstated 

unless the granting of a new trial can be premised on the 

final ground stated. 
The trial court's third reason for granting a new trial 

was the effect on the jury of the discussion concerning a 

prospective juror by both counsel in their closing arguments. 

In its order, the trial court said: 

"It is impossible at this juncture to assess 

the impact of this type of argument upon a 

jury. It impacted this judge because of being unprofessional conduct. Because I am unable to assess the total impact of this conduct upon the jury but am satisfied that the 

totality of the circumstance was such that it 

did affect the jury in its deliberations, this 

alone is sufficient grounds for new trial." 

In his closing argument, counsel for defendant stated: 

"Now, in closing, ladies and gentlemen of the 

jury, you recall one of the tentative members 

of the jury Monday, and you notice he's not 

here, who said, 'I'm going to award the plaintiff what I feel is fair and reasonable, as 

long as there's no snow in it.'" 

In response, counsel for plaintiff stated: 

"I'm wondering about this snow situation with 

this juror. I remember him. His name was 

Dan Sanders, and he sat right down there, and 

Bill Bennett [counsel for defendant] disqualified him. I don't know why he disqualified 

him, but I believe Bill Bennett's second or 

third disqualification was given, and it was 

Dan Sanders." 

To this defense counsel replied: 

"Mr. Bennett: 'May it please the Court, 

could we correct the record on that particular matter? It was the plaintiff who 

disqualified Mr. Sanders.'" 

At that point, the trial judge called a recess and counsel 

were admonished in chambers. Upon return to the courtroom, 

the trial judge discussed at length the comments about the 

prospective juror with the jury and advised the jury to 

ingore them. 

The test used by this Court to determine when arguments 

of counsel may be the basis for granting a new trial is found 

in Vogel v. Fetter Livestock Co. (1964), 144 Mont. 127, 

394 P.2d 766. Improper argument requires reversal only when 
prejudice has resulted which prevents a fair trial. The 

trial court did not make a specific finding of prejudice. In 

fact, the trial court first determined that the jury admonishment was sufficient guarantee of a fair trial. Counsel did 

not object. We find no basis for a new trial. 

The order granting respondent a new trial is reversed. 

The original verdict in favor of defendant is reinstated and 

judgment shall be entered accordingly.