No. 81-118 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

. MARJORIE HARRY, 

Plaintiff and Respondent and 

Cross-Appellant, 

BILL ELDERKIN and SANDY ELDERKIN, 

Defendants and Appellants and 

Cross-Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellants: 

Warden, Christiansen, Johnson and Berg, Kalispell, 

Montana 

Stephen C. Berg argued, Kalispell, Montana 

For Respondent: 

Hash, Jellison, O'Brien and Bartlett, Kalispell, 

Montana 

James C. Bartlett argued, Kalispell, Montana 

Submitted: October 20, 1981 

Filed: D E C 1 .. 198f 

Decided : DEc i lD8l 
Mr. Chief ~ustice Frank I. Haswell delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court for 

the Eleventh ~udicial District, Flathead County, granting a new 

trial to the plaintiff in a personal injury action. The plaint iff cross-appeals from the contributory negligence instruct ions. 

The plaintiff, Marjorie Harry, is the mother of defendant 

Sandy Elderkin, who was the wife of defendant Bill Elderkin. 

During June, 1976, Mrs. Harry was visiting the Elderkins at their 

home in Kalispell, Montana. At the time of her visit, Bill 

Elderkin was in the process of constructing a cabinet shop in the 

backyard of the Elderkin home. A trench had been dug approximately four feet deep, and cement had been poured into plywood 

forms constructed in the trench. A garden was located next to 

the cabinet shop foundation, and the remainder of the backyard 

was covered with black plastic and gravel. 

On June 12, 1976, Sandy Elderkin invited her mother into 

the backyard to view the garden. Mrs. Harry had not been in the 

backyard since her arrival, but she was aware of the construction 

project. Bill Elderkin was in the process of removing braces and 

forms from the foundation. As Sandy Elderkin and Mrs. Harry 

walked along the pathway between the garden and the construction 

site, Sandy bent down to remove a board from the garden. Mrs. 

Harry took a step backwards with her right foot towards the 

trench, the ground gave way, and she fell into the trench and 

caught her left ankle on a brace. As a result of the accident, 

Mrs. Harry suffered a severely broken left ankle and received 

extensive medical treatment. 

In October, 1977, Mrs. Harry was still experiencing 

difficulties due to severe degenerative arthritis of the ankle 

caused by the fracture. Dr. Laidlaw advised Mrs. Harry that she 

would eventually require an ankle fusion to alleviate the pain 

caused by the rubbing of bone upon bone in the ankle joint. In 
May, 1978 , Dr. Laidlaw again advised Mrs. Harry that she was in 

need of an ankle fusion. Mrs. Harry was also seen by Dr. 

Maruyama, an orthopedic surgeon in Colorado, who advised her in 

November, 1978, and in November, 1980, that she should have an ankle 

fusion but that she should first lose fifty pounds. At the time 

of trial, Mrs. Harry was scheduled to have the ankle fusion but 

had not yet done so. 

Mrs. Harry brought an action against the Elderkins for 

damages for personal injury. The District Court denied the summary judgment motions of both parties and a jury trial commenced 

on December 151 1980. The jury rendered a special verdict in 

which it found the plaintiff to have been 85% negligent and the 

defendants to have been 15% negligent. The full amount of damages sustained by the plaintiff was found to be $15,000. The 

District Court ordered that judgment be entered on the verdict on 

behalf of defendants and against the plaintiff. 

The plaintiff moved for new trial on the grounds of irregularity in the jury proceedings, misconduct of the jury and 

insufficiency of the evidence to support the verdict. The motion 

was supported by an af f idavit of the jury foreman, which stated : 

" . . . (2) That at the time the Special Verdict 

Form was completed, Affiant and his fellow 

Jurors believed and they intended that Mrs. 

Harry was awarded a Judgment in the sum of 

$15,000.00; 

" (3) That Affiant and his fellow Jurors assigned 

a percentage of 85% to Marjorie Harry as justification for the award of $15,000.00 to her; and 

that in determining the 85%, Affiant and his 

fellow Jurors believed that a significant 

factor, but not the only factor, was the failure 

of Marjorie Harry to have her ankle fused when 

first suggested by her physicians, and that much 

of her problems could have been alleviated had 

the fusion taken place." 

By an order dated January 2, 1981, the District Court 

granted plaintiff's motion for a new trial and found 

that: 

". . . the jurors, or some of them, did not 

understand the doctrine of comparative 

negligence, did not apply the law correctly 
relative to contributory negligence, were inconsistent in their answers on the Special Verdict, 

and reached a result that they did not intend 

when the Court applied the proportion of contributory negligence they ascribed to the 

plaintiff." 

The Elderkins contend that the District Court manifestly 

abused its discretion in granting Mrs. Harry a new trial. They 

argue that there was no irregularity in the proceedings, that the 

jury may not impeach its own verdict based upon a misapprehension 

of the law, and that there was sufficient evidence to support the 

giving of the contributory negligence instruction. Mrs. Harry 

contends she is entitled to a new trial as a matter of law due to 

an error in instructing the jury. She further asserts that this 

is a proper case for determining whether the rules of status of 

persons injured on real property should be abolished. 

We decline to address the latter issue as we find it is 

not properly before us. The trial of this case occurred prior 

to our decision in Corrigan v. Janney (1981), Mon t . I 626 

P.2d 838, 38 St.Rep. 545, in which we held that a landlord is 

under a duty to exercise ordinary care in the management of the 

premises to avoid exposing persons thereon to unreasonable risk 

of harm. Mrs. Harry asserts that this rule of law issued while 

her case was pending on appeal should be expanded and applied to 

her case by virtue of the plain error rule. This is not an 

appropriate case for application of the plain error rule enunciated in Halldorson v. Halldorson (1977) , 175 Mont. 170, 573 

P.2d 169. It is only when the trial court has committed an error 

which results in a denial of substantial justice that we can 

review an error not objected to at trial. Plaintiff's counsel 

indicated satisfaction with the instructions on the standard of 

liability, and he may not now argue the academic issue that the 

law should be changed. 

Mrs. Harry's motion for a new trial was premised upon section 25-11-102(1), (2) , and (6) , MCA. Although the District 

Court order granting a new trial does not specify the subsec- 
tion upon which it is based, it is clear that the court relied 

upon the jury foreman's affidavit and determined that either an 

irregularity in the jury proceedings or misconduct of the jury 

had occurred. 

Juror aff idavits are not permissible in support of a 

motion for new trial based upon an irregularity in the jury 

proceedings, section 25-11-102(1), MCA. Rasmussen v. Sibert 

(1969)r 153 Mont. 286, 456 P.2d 835. Therefore, if a motion for 

new trial was properly granted under subsection (1) an irregularity in the jury proceedings must have existed independent of 

any consideration of the jury foreman1 s af f idavit. The ~istr ict 

Court order makes reference to an inconsistency in the answers on 

the special verdict. On its face, however, the special verdict 

does not contain any inconsistent answers. Both parties were 

found to have been negligent, a total amount of damages was 

assessed and percentages of negligence were ascribed to each 

party. Absent consideration of the juror affidavit, we find no 

irregularity in the jury proceedings requiring a new trial under 

section 25-11-102(1), MCA. 

plaintiff further argues that even though juror af f idavits 

cannot be used under section 25-11-102(1), the trial court could 

have found from an independent review of the evidence, without 

considering the juror affidavit, that the result reached by the 

jurors was not the result intended by them. The court may on its 

own initiative order a new trial for any reason for which it 

might have granted a new trial on motion of a party. Rule 59(e), 

M.R.Civ.P. This does not alter the fact that, absent consideration of the juror a£ fidavit, there was no basis for a new 

trial under section 25-11-102(1), MCA. 

Jury misconduct as a ground for new trial may be shown by 

juror af f idavit according to section 25-11-102( 2), MCA. As jury 

misconduct, the respondent refers to (1) the error of the jurors 

in considering her failure to have an ankle fusion as negligence 
and (2) setting her total damages as $15r000 and assigning 85% 

negligence to the respondent. Montana law on the use of juror 

testimony and aff idavits upon an inquiry into the validity of the 

verdict is concisely summarized by Rule 606(b), Montana Rules of 

Evidence as follows: 

"Inquiry into validity of verdict or indictment. 

Upon an inquiry into the validity of a verdict 

or indictment, a juror may not testify as to any 

matter or statement occurring during the course 

of the jury's deliberations or to the effect of 

anything upon his or any other juror's mind or 

emotions as influencing him to assent or dissent 

from the verdict or indictment or concerning his 

mental processes in connect ion therewith. Nor 

may his affidavit or evidence of any statement 

by him concerning a matter about which he would 

be precluded from testifying be received for 

these purposes. 

"However, as an exception to this subdivision, a 

juror may testify and an affidavit or evidence 

of any kind be received as to any matter or statement concerning only the following questions, 

whether occurring during the course of the 

jury's deliberations or not: (1) whether extraneous prejudicial informat ion was improperly 

brought to the jury's attention; or (2) whether 

any outside influence was brought to bear upon 

any juror; or ( 3) whether any juror has been 

induced to assent to any general or special 

verdict, or finding on any question submitted to 

them by the court, by a resort to the determinat ion of chance . " 

The cases on the use of juror affidavits fall into two major 

categories : 1) those involving external in£ luence on the jury, 

and 2) those involving internal influence on the jury. Where 

external influence is exerted on the jury or where extraneous 

prejudicial information is brought to the jury's attention, j uror 

affidavits can be the basis for overturning the judgment if 

either party was thereby deprived of a fair trial. Schmoyer v. 

Bourdeau (1966) , 148 Mont. 340, 420 P.2d 316 (juror telephoned a 

relative with regard to previous litigation by plaintiff) ; Gof f 

v. Kinzle (1966), 148 Mont. 61, 417 P.2d 105 (juror visited scene 

of accident, conducted experiments and told jury of his 

findings); Clark v. Wenger (1966), 147 Mont. 521,. 415 P.2d 723 

(juror had received evidence outside of court which made him a 
witness against the plaintiff) ; Putro v. Baker (1966), 147 Mont. 

139 , 410 P.2d 717 (juror brought newspaper article into jury roam 

and showed it to jury) . On the other hand, j uror af f idavits may 

not be used to impeach the verdict based upon internal influences 

on the jury, such as a mistake of evidence or misapprehension of 

the law. Groundwater v. Wright (1979), 180 Mont. 27, 588 P.2d 

1003, (jury misunderstood the law) ; Charlie v. Foos (1972), 160 

Mont. 403, 503 P.2d 538 (jury desired to be discharged, did not 

understand law of contributory negligence) ; Rasmussen v. Sibert, 

supra (plaintiff s witness referred to defendant's insurance, 

which was considered by the jury) ; Johnson v. Green (1969), 153 

Mont. 251, 456 P.2d 290 (presiding judge not available to answer 

jury question on instructions but another judge was available ). 

Here, the juror af f idavit reflects the foreman's belief 

that the jury did not understand the instructions on contributory 

negligence, comparative negligence and mitigation of damages. 

This case falls into the category of cases involving internal 

influences on the jury. We hold that the ~istrict Court abused 

its discretion in granting a new trial on the basis of a juror 

affidavit which purports to impeach the verdict by delving into 

the thought processes of the jurors. 

Nonetheless, Mrs. Harry contends that she is entitled to a 

new trial because 1) the instructions on contributory negligence 

and mitigation of damages were erroneous, and 2) there was insuff icient evidence to support the giving of the contributory negligence instruction and to support the verdict that Mrs. Harry was 

85% negligent. 

We find that the plaintiff failed to object at trial or in 

her motion for new trial to the substance of the instructions on 

contributory negligence and mitigation of damages and that the 

issue of erroneous instructions is not before us. We further 

find that the evidence was sufficient to support the giving of 

the instruction on contributory negligence and to support the 
finding that Mrs. Harry was 85% negligent. Mrs. Harry was 

married to a construction worker with whom she traveled around 

the world to various construction sites. She testified that she 

was aware of some of the dangers inherent in a construction site 

and acknowledged the danger of the ground giving way. The jury 

could have inferred that she knew or should have known that if 

she stepped too close to the trench the ground might cave in. 

Mrs. Harry had poor vision in her right eye. She testified that 

she pivoted towards the right and stepped as close as 12 inches 

from the edge of the trench without looking where she was 

stepping. The jury was instructed that all persons are required 

to be observant and to take such measures as are necessary to 

protect themselves. The evidence supported the giving of the 

instruction and the verdict. 

The order of the District Court granting a new trial to 

the plaintiff is vacated. The judgment on the verdict stands. 

Chief ~ustice 

.................................... 

Justices 
Mr. Justice John C. Sheehy dissenting: 

The majority opinion takes too narrow a view of our 

duty on appeal from an order granting a new trial. 

There are special rules which apply to an appeal from 

an order granting a new trial. In section 3-2-204, PICA, 

defining the power of the Supreme Court, it is stated: 

"(3) In giving its decision, if a new trial 

be granted, the court must pass upon and 

determine all the questions of law involved 

in the case presented upon such appeal and 

necessary to the final determination of the 

case. " 

As far as I can find, the Montana Supreme Court has not 

passed upon the extent of its power to review a grant of a 

new trial. In California, however, under a similar rule, 

the order granting a new trial must be affirmed if it should 

have been granted upon any ground stated in the motion, 

whether or not specified in the order or specification of 

reasons. Treber v. Superior Court (Cal. 1968), 436 P.2d 

330, 334. The court there quoted with approval from a statement 

contained in a case as old as Kauffman v. Maier (1892), 94 

Cal. 269, 276, 277, 29 P. 481, 482, to the following effect: 

"A party has the right to move for a new trial 

upon any or all of the grounds permitted by the 

statute, and if the record on which his motion 

is based discloses more than one ground for which 

a new trial should be granted, the court cannot, 

by stating in its order that the motion is granted 

upon one ground only, and denied upon the others, 

deprive the other party of the right to a review by 

this Court of the entire record . . . If there 

be any grounds upon which its action can be 

upheld, the order will be sustained irrespective 

-- of the particular ground given -- by that court, 

whether -- in an opinion --- or by a statement -- in the 

order itself." (Emphasis added.) 

Grounds upon which a party may move for a new trial are 

contained in section 25-11-102, MCA. They include "irregularity 

in the proceedings of the . . . jury", "misconduct of the 
jury", "insufficiency of the evidence to justify the verdict", 

and that the verdict "is against law." In moving for a new 

trial in this case, the plaintiff utilized all four of those 

grounds. If she was entitled to a new trial on any one of 

those grounds, under the statute, section 3-2-204 (3) , MCA, 

and the rule enunciated in Treber, supra, the order of the 

District Court in this case granting a new trial ought to be 

sustained. The majority opinion ignores this elemental rule 

of the extent of review on orders granting a new trial, to 

the prejudice of the plaintiff. 

The verdict in this case is against law because of an 

inherent error in the instructions as submitted to the jury. 

The trial court submitted a special verdict for a determination 

of the comparative negligence issues, and at the same time 

submitted an instruction which properly should be used only 

with respect to a general verdict. The basic underlying 

error here is not what the jury did, according to the affidavit 

of one juror, in arriving at the verdict. I give no account 

to that at all. Rather, the basic underlying error here is 

that the jury, instructed with respect to the finding of a 

general verdict, applied that rule in finding its special 

verdict. That is the basic error which gives rise to the 

propriety to the grant in this case of a new trial. 

In fact I find no error in the instruction given 

by the court for the minimizing of her personal injuries. 

The court in that connection instructed the jury as follows: 

"It is the duty of a person who has been injured 

to use reasonable diligence in caring for her 

injuries and reasonable means to prevent their 

aggravation and accomplish healing. 

"When one does not use reasonable diligence to 

care for her injuries, and they are aggravated 

as a result of such failure, the liability, if 

any, of another whose act or omission was a 
proximate cause of the original injury, must be 

limited to the amount of damage that would have 

been suffered if the injured person himself had 

exercised the diligence required of her. 

"From the mere fact that a competent physician 

advised an injured person to submit to a course 

of treatment or operation we are not justified 

in inferring that the injured person was 

negligent or unreasonable in declining such 

treatment or operation. Other factors as they 

confronted the injured person must be considered 

in determining whether, although she refused to 

follow the physician's advice, she nevertheless 

exercised reasonable diligence in caring for herself 

and her injuries." (Court's instruction no. 18.) 

The foregoing instruction on minimization is an exact 

copy of instruction no. 14.67 contained in BAJI (5th ed. 

The error arose in this case because the District Court 

submitted a special verdict, without an instruction telling 

the jury how to use the special verdict. As filled out by 

the jury the special verdict is as follows: 

"We, the Jury, answer the questions submitted to 

us in this Special Verdict as follows: 

"QUESTION No. 1. Were the Defendants guilty 

of neqliqence which was the proximate cause 

of the ciaimed damages? ANSWER: Yes X . No 

"If you have answered the above question "NO", 

you will not answer the remaining questions but 

will simply sign the verdict and call the 

bailiff . 

"If you have answered Question No. 1 "YES", then 

you must answer Question No. 2. 

"QUESTION No. 2. What is the full amount of 

damages that you find sustained by the 

Plaintiff? $15,000.00. 

"QUESTION No. 3. Was the plaintiff guilty of 

negligence which was the proximate cause of 

the alleged damages? ANSWER: Yes X. 

No 

"If you have answered "NO" to Question No. 3, 

then you will not answer Question No. 4, but will 

simply sign the Verdict and call the bailiff, 
"If you answered "YES" to Question No. 3, then 

you must answer No. 4. 

"QUESTION No. 4. Considering the negligence of 

the plaintiff and the defendants that caused the 

accident at a total of one hundred percent (loo%), 

what percentage is attributable to: 

"(a) the Plaintiff 85 % 

"(b) the Defendants 15 % 

"TOTAL 100 9 11 0 

The problem in this case comes about because court's 

instruction no. 10 instructed the jury as though it were to 

return a general verdict after having determined all the 

issues in the cause: 

"You are instructed that the laws of the State 

of Montana provide that contributory negligence 

shall not bar recovery in an action by any 

person or his legal representative to recover 

damages for negligence resulting in death or injury 

to person or property, if such negligence was 

not greater than the negligence of the person against 

whom the recovery is sought, but any damage allowed 

shall be diminished in proportion to the amount of 

the negligence attributable to the person recovering." 

The court gave its instruction no. 27, which is usual 

in form, but in this case helped to cause the error: 

"Upon retiring to your jury room you will choose 

one of your number foreman, who will sign your 

verdict when you shall have agreed upon one. Eight 

(8) or more of your number must agree in arriving 

at a verdict. When you have arrived at a verdict 

and the same has been signed by your foreman, you 

will notify the bailiff who will return you into 

court. " 

Because the jury was given a special verdict to determine the issues, instruction no. 10 above should not have 

been given at all. It directly conflicts with the directions 

in the special verdict. The editors of BAJI also agree that 

an instruction in the form of instruction no. 27 should 

never be given with a special verdict. Form 15.15, BAJI 

(5th ed. 1960), comment (1975 cum. pocket part). 
Because the court in this case was submitting a special 

verdict to the jury which would have the effect of determining the kind of general verdict that eventually would be 

entered in the cause, it should have followed the example in 

BAJI, and used form no. 15.15 as a concluding instruction to 

the jury. That instruction should have been as follows: 

"You shall now retire and select one of your 

number to act as foreman who will preside over 

your deliberations. 

"In this case you will not return a general verdict 

in favor of either party. Instead, it will be your 

duty to return only a special verdict in the form 

of written answers to such of the issues upon which 

you have been directed to make findings as are 

required according to the directions in the form 

of special verdict which will be submitted to you. 

"As soon as eight or more identical jurors have 

agreed upon every answer required by such directions, 

so that each of those eight or more may be able to 

state truthfully that every answer is his or hers, 

you shall have your verdict signed and dated by your 

foreman and then shall return with it to this room." 

Form 15.15, BAJI (5th ed. 1960) (1975 cum. pocket part). 

By use of the foregoing concluding instruction, the 

trial court would have avoided what is inherently possible 

in this case, that the jury fixed the general damages as 

though it were finding a general verdict, and it would be 

certain that the verdict was the answer of an identical 

eight jurors in the case. 

Because we are commanded by statute to review all of 

the record on an appeal from an order granting a new trial, 

and because at least it fits in the "plain error" rule 

enunciated in Halldorson v. Halldorson (1977), 175 Mont. 

170, 573 P.2d 169, this case should be affirmed, insofar as 

it grants a new trial of all the issues in the cause. 

If the majority had agreed to affirm the grant of a 

new trial, I should also have discussed the "status" question 

of an invitee under Montana law for the guidance of the 

District Court in the new trial. 
Justice 

We concur in the foregoing dissent. 

............................. Justices 
Mr. Justice Frank B. Morrison, Jr., dissenting: 

I concur with the remarks made by Justice Sheehy respecting our power to review. In this case the plaintiff, in 

the motion for new trial, sufficiently specified statutory 

grounds which permit us to treat the real error in this 

case. 

The error committed by the trial court was in giving 

court's instruction No. 18 on mitigation of damage without 

giving an accompanying instruction which would prohibit the 

jury from considering failure to mitigate as part of the 

liability negligence assessed in the special interrogatory. 

Any conduct of the plaintiff in failing to mitigate 

damages can only reduce the amount of damages to be recovered. 

Such failure on the part of the plaintiff can never be 

considered in the liability part of the case. Here the 

trial court erred because the trial court permitted the jury 

to use plaintiff's apparent failure to mitigate as part of 

plaintiff's negligence under the comparative negligence 

statute. In the special verdict answer to "question No. 4" 

the jury found the plaintiff to be guilty of 85% of the 

total negligence. Under the court' s instructions , the jury 

was permitted to include, within the 85% assignment, conduct 

of the plaintiff in failing to mitigate damages. This, of 

course, was error. 

I agree with the majority that a jury verdict cannot be 

impeached by way of affidavit, as was done here. The trial 

court granted a new trial for the wrong reason. However, 

there is clear error in record which justifies the granting 

of a new trial. Therefore, I would affirm the trial court's 
action and remand for proceedings in conformity with this 

dissent.