No. 81-467 INTHE 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: 

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### MI2Mr. JusticeFrank 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, BonitaNelson, was riding. The accident occurred on United States Highway 191,approximately

sevenmiles 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 employeeswere 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, hemanually 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. TheNelson vehiclewas 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 immediatelybehind the truck, moving at approximately 15 to 20miles per hour. He did not see the Nelson vehicle. Mrs. Nelson testified that she,her husband and four grandchildrenwere enroute to Idahowhen the accident occurred. She checked behind their stationwagon as Mr. Nelson started to pass. She sawno vehicles approaching from the rear, then turned forward and saw the pickup immediately in front of them. Shedid not recall seeing any cattle. James Wayment, a north-boundmotorist, testified that he saw a left-turn signal onNelson'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 claimwas settled for $12,650. A motion in limine regarding contributory negligence of Boyd Nelson, driver of the car inwhich respondent was riding, was granted the firstday 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 firstday of trial, counsel forplaintiff was advised by the court that testimony regardingMr. 

### h art man's bad driving recordwould notbe admitted unless a foundation was first laid. The foundationhad to establish a clearconnection betweenMr. Hartman's operating the truck as an unlicensed, habitual offender driver and Mrs. Nelson's injuries. No such foundationwas laid and the evidencewas not admitted. The jury returned a verdict in favor of defendants, Harry Hartman and Donlan Ranch. Judgmentwas entered April 30, 1981. A motion for new trial followed. Themotion was granted for the following reasons: (1) Itwas error to exclude evidence of Mr. Hartman's past driving record. Such evidencewas relevant to the issue of Mr. Hartman's capabilities as a driver as well as to the issue of punitive damages; (2) The jury'sverdictwas contrary to the evidence presented at trial; and (3) Discussion by both counsel of the exercise of a preemptory challenge as to one jurorwas improper and affected the jury in its deliberations. Defendant contends that the District Court abused its discretion by granting the plaintiff'smotion for a new trial. We find that the DistrictCourt 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 itwas error to exclude evidence of Mr. Hartman's past driving record. The evidencewas not unconditionally excluded. Rather, counsel for respondent was told such evidence would be admitted if a proper foundation linking appellant's driving recordwith respondent's injurieswas first laid. No foundation

was laid. The evidencewas not allowed. Evidence that a driver has no license and has been designated a habitual offender for driving purposes ishighly 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 foundationbe 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 damagespurposes. There can be no punitive damages without actual liability entitling Nelson to actual damages. Galiger

v. Hansen (1957), 133Mont. 34, 319 P.2d 1051; Smith v. Krutar (1969), 153Mont. 325, 457 P.2d 459. The DistrictCourt's second ground for granting respondent a new trialwas 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 substantialevidence. Beebev. Johnson (1974), 165Mont. 96, 526 P.2d 128, citing Campeau v. Lewis (1965), 144Mont. 543, 398 P.2d 960. The evidence here presented at trialwas in conflict. When testimony at trial includes different accounts of an event, the trial court cannotoverturn a juryverdict or grant a new trial solely because it choses to believe testimony different than that believed by the jury. Yerkich v. Opsta

(1978), 176Mont. 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: "Itis impossibleat this juncture to assess the impact of this type of argument upon a jury. It impacted this judgebecause 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 circumstancewas 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 forplaintiff stated: "I'm wondering about this snow situation with this juror. I rememberhim. His name was Dan Sanders,and he sat right down there,and Bill Bennett [counsel for defendant] disqualified him. I don't knowwhy he disqualified him, but I believe Bill Bennett's second or third disqualificationwas given, and itwas Dan Sanders." To this defense counsel replied: "Mr. Bennett: 'May itplease the Court, could we correct the record on that particular matter? Itwas 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 jurorwith the jury and advised the jury to ingore them. The test used by this Court to determine when arguments of counselmay be the basis for granting a new trial is found in Vogel v. Fetter Livestock Co. (1964), 144Mont. 127, 394 P.2d 766. Improper argument requires reversal only whenprejudice has resulted which prevents a fairtrial. The trialcourt didnot make a specific finding of prejudice. In fact, the trialcourt firstdetermined that thejury admonishment was sufficient guaranteeof a fairtrial. Counsel did not object. Wefind no basis for a new trial. The order granting respondent a new trialisreversed. The original verdict infavor of defendant isreinstated and judgment shallbe entered accordingly.