No. 88-616 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

RONALD L. STANHOPE, 

Plaintiff and Appellant, 

-vsJOHN D. LAWRENCE, JR., FARMERS STATE RANK 

OF WORDEN, MONTANA, H. RICHARD HANSEN, LAMONTE 

W. WAGNER, HANSEN-LAWRENCE AGENCY, INC., 

Defendants, Respondents and 

Cross-Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stephen M. Rarrett argued, Holly B. Brown; Kirwan & 

Barrett, Bozeman, Montana 

For Respondent: 

, - Michael G. Moses argued; Moses Law Firm, Billings, 

t 3 Montana 

L, , ; Calvin J. Stacey argued; Keefer, Royhal, Hanson, 

7-- 3 4, 

Stacey & Walen, Billings, Montana 

Submitted: December 14, 1989 

Degided: February 28, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

This appeal involves causes of action that arose within 

the context of a closely-held corporation and alleged several 

claims including breach of fiduciary duty, breach of 

contract, negligent misrepresentation, fraud, conversion and 

bad faith. Plaintiff Ronald L. Stanhope appeals the order of 

the Thirteenth Judicial District, Yellowstone County, 

granting the individual defendants', John D. Lawrence, Jr., 

H. Richard Hansen, Lamonte W. Wagner, and Hansen-Lawrence 

Agency, Inc., and the separate defendant Farmer's State Bank 

of Worden, motion for new trial. We affirm. 

Among the issues raised by appellant Stanhope is the 

following: Did the District Court err in granting the 

defendants' motion for new trial on the ground that the 

damages awarded by the jury were based on a prohibited 

quotient verdict? 

Stanhope is the former president of S & L Energy, Inc, a 

corporation organized in 1973 under the Montana Close 

Corporation Act and involved in purchasing and developing 

various oil properties. The defendants are various business 

entities and individual owners, shareholders and directors 

that transacted with both Stanhope and S & L Energy, Inc. 

Stanhope brought suit against the defendants and the 

case was eventually submitted to the jury on two theories of 
liability: negligence and bad faith. The jury returned a 

verdict of $1 million in compensatory damages and later 

determined that the defendants' conduct warranted punitive 

damages in the amount of $1,396,000.00. The jury was polled 

after returning the compensatory damage verdict. During this 

polling, one of the jurors indicated that the jury had 

agreed to use a quotient method---where the several amounts 

thought by the individual juror's to be proper are added up 

and divided by 12---as a means of reaching the final verdict. 

Affidavits from all the jurors regarding the manner used 

in reaching the verdict were submitted to the court. Also, 

on September 8, 1988, after the jury hearing and verdict on 

the amount of punitive damages to be awarded, the Court 

conducted its own examination of the jury regarding the 

manner used in reaching the compensatory damage verdict. The 

defendants then moved for a new trial or judgment n.0.v. on 

the grounds that the verdict was a result of the prohibited 

quotient method as well as on several other grounds. 

The Court also reviewed both the compensatory verdict 

and the punitive damage award. On October 28, 1988, the Court 

reduced the medical expenses portion of the compensatory 

verdict from $200,000.00 to $35,000.00 based on a lack of 

evidence. Stanhope has not appealed this reduction. The 

District Court also reduced the punitive damage award from 

$1,396,000.00 to $224,000.00 pursuant to S 27-1-221, MCA. 
The total verdict was thus reduced by the trial judge from 

$2,396,000.00 to $1,059,000.00. 

On November 2, 1988, after consideration of the juror 

poll, its own examination, and juror affidavits supplied by 

both sides, the District Court granted defendants' motion for 

new trial based on 5 25-11-102(2), MCA, finding that the jury 

had reached a prohibited quotient verdict. The court did not 

rule on the defendants' other motions. Stanhope's subsequent 

motion for reconsideration was then denied. Stanhope now 

appeals the order granting new trial and raises, among 

others, the quotient verdict issue. The defendants also 

cross appealed on all issues not reached by the District 

Court to preserve those issues should this Court reverse the 

order granting new trial. 

I. 

It is essential to our determination in this case for us 

to set forth a clear and concise statement of the scope of 

our review regarding the grant of a new trial. The decision 

to grant a new trial is within the sound discretion of the 

trial judge and will not be overturned absent a showing of 

manifest abuse of discretion. Zeke's Distributing Co. v. 

Brown-Forman Corp. (Mont. 1989), 779 P.2d 908, 913, 46 

St.Rep. 1678, 1682; Tope v. Taylor (Mont. 1988), 768 P.2d 

845, 849-850, 45 St.Rep. 2242, 2248; Walter v. Evans Products 
Co. (1983), 207 Mont. 26, 30-31, 672 P.2d 613, 616. Black's 

Law Dictionary defines manifest as: 

evident to the senses, especially to the sight, 

obvious to the understanding, evident to the mind, 

not obscure or hidden, and is synonymous with open, 

clear, visible, unmistakable, indubitable, 

indisputable, evident, and self-evident. 

Black's Law Dictionary 867 (5th ed. 1979). The question of 

whether or not the jury agreed to be bound by a quotient 

verdict process is a question of fact. We may not set aside 

the trial judge's findings unless such findings are clearly 

erroneous. Rule 52 (a) , M.R.Civ.P. Findings of fact are not 

clearly erroneous if they are supported by substantial 

credible evidence. In re Marriage of Obergfell (1985) , 218 

Mont. 83, 87-88, 708 P.2d 561, 563-564. Substantial evidence 

is that evidence that a reasonable mind might accept as 

adequate to support a conclusion, and consists of more than a 

mere scintilla of evidence but may be somewhat less than a 

preponderance. Black' s Law Dictionary 1281 (5th ed. 1979) . 

The evidence may be inherently weak and still deemed 

substantial; and although conflicts may exist in the evidence 

presented, it is the duty and function of the trial judge to 

weigh such conflicts. His findings will not be disturbed on 

appeal where they are based on substantial though conflicting 

evidence. Olson v. Westfork Properties, Inc. (1976), 171 

Mont. 154, 157-158, 557 P.2d 821, 823. Thus, for us to 

reverse the trial court in this case we must find either that 
the trial court's findings of fact are not supported by 

substantial evidence and thus are clearly erroneous, or that 

in applying the law to the facts there is a manifest abuse of 

discretion. 

We now turn to a discussion of the applicable law 

regarding quotient verdicts. The trial court's grant of a 

new trial in this case was based on S 25-11-102, MCA. The 

statute provides: 

Grounds for new trial. The former verdict or other 

decision may be vacated and a new trial granted on 

the application of the party aggrieved for any of 

the following causes materially affecting the 

substantial rights of such party: 

(2) misconduct of the jury. Whenever any one 

or more of the jurors have been induced to assent 

to any general or special verdict or to a finding 

on any question submitted to them by the court by a 

resort to the determination of chance, such 

misconduct may be proved by the affidavit of any 

one of the jurors. 

Section 25-11-102(2), MCA. Utilization of the quotient 

method to reach a verdict, where the jurors agree to be bound 

by that verdict before the quotient is calculated, is such a 

resort to the determination of chance constituting grounds 

for a new trial under the statute. Haynes v. County of 

Missoula (1973), 163 Mont. 270, 517 P.2d 370; Bracy v. Great 

Northern Ry. Co. (1959), 136 Mont. 65, 343 P.2d 848; enj jam in 
v. Helena Light & Ry. Co. (1927), 79 Mont. 144, 255 P. 20; 

Gordon v. Trevarthan (1893), 13 Mont. 387, 34 P. 185. We 

note that a quotient verdict instruction was not requested by 

any party nor was one given in this case. 

Plaintiff contends that the verdict is not objectionable 

even though the quotient process was used because there was 

no previous agreement to be bound by the quotient process. 

Plaintiff's argument is based on evidence showing that the 

jurors deliberated further after reaching an initial sum of 

between $830,000.00 and $880,000 through the quotient process 

and then later agreed to raise the amount to $1 million. 

Thus, plaintiff contends that the quotient process employed 

by the jurors was merely a mechanism for arriving at a 

starting point in determining damages; it was merely a part 

of the discussion and compromise used by all juries in 

arriving at a final agreement. The trial court disagreed 

with this contention. 

In his argument, plaintiff correctly points out that 

the vice of a quotient verdict is an agreement in advance to 

be bound by the quotient process; the verdict is not 

objectionable where there is no previous agreement to be 

bound by the quotient process. Haynes, 517 P.2d at 382; 

Bracy, 343 P.2d at 854. Thus, the distinction between good 

verdicts and bad verdicts wherein the quotient process was 

used is dependent upon the prior agreement to be bound: 
If the jurors previously agree to a particular mode 

of arriving at a verdict, and to abide by the 

contingent result at all events, without reserving 

to themselves the liberty of dissenting, such a 

proceeding would be improper; but if the means is 

adopted merely for the sake of arriving at a 

reasonable measure of damages, without binding the 

jurors by the result, it is not objection fsic] to 

the verdict. 

Gordon, 34 P. at 186. However, this does not mean that a 

final verdict is valid simply because it is not exactly equal 

to the original verdict sum arrived at by the quotient 

process. "It is generally held that, if the amount of the 

verdict is not exactly the quotient sum but is adopted as a 

result of the quotient process and grows out of the latter, 

the verdict is invalid." Benjamin, 255 P. at 24. Generally, 

a slight discrepancy between the quotient sum and the verdict 

does not affect the invalidity of a verdict; on the other 

hand, there is no well-defined rule governing how large the 

discrepancy between the quotient sum and the final verdict 

must be before the verdict will be considered to be valid. 

Benjamin, 255 P. at 24. In determining the cause of such a 

discrepancy and its effect on the validity of the verdict, 

the trial judge has considerable discretion: 

Much seems to rest on the basic facts that 

mathematical calculation was resorted to and led up 

to the fixing of the amount of the verdict, even 

though not the same as the quotient. Each case 

seems to depend on its own facts and their relation 

to each other. Motives of jurors, as disclosed, 

are given much weight. Frequently the motive in 

agreeing upon a sum different than the quotient sum 
is to make it "even money," ------ but that is held not a 

good reason. (Emphasis added.) 

Benjamin, 255 P. at 24. Thus, the mere fact that the amount 

of the quotient and the amount of the final verdict differ is 

not conclusive of whether the jurors were in fact bound by a 

prior agreement. 

111. 

Was the evidence sufficiently substantial to support the 

trial judge's findings? We conclude that the record contains 

substantial evidence to support the trial court's finding 

that the the jurors acted under an agreement to be bound and 

were induced to assent to the verdict. The trial judge had 

the following substantial evidence to rely on in making his 

determination: the statements of the jurors--particularly 

Juror Sandberg--during polling, the statement of each of the 

jurors after the punitive damages verdict, and affidavits of 

the jurors supplied by both sides. 

The record indicates that eight jurors voted that the 

defendants had negligently injured Stanhope; four jurors 

voted against recovery. During polling of the jury regarding 

the specific amount of the compensatory verdict, there was 

some confusion among the eight jurors favoring the plaintiff 

as to the amount of their verdict and whether they 

individually concurred in that verdict. Jurors Bushman, 
Arnold, Kline, Yanchisin, and Scribner all stated that their 

verdict was for $1 million. Juror Allen stated: "I forgot 

what I put. I would say a total of one million, but I'm not 

sure. " Juror Sandberg : "10,000, I think." Juror 

Scharnowske: "Total of three million." The clerk repeated 

the question and broke the verdict down into its individual 

categories: medical expenses, past, $200,000, physical 

injuries but limited to pain, $205,000, emotional distress, 

$115,000, economic and financial loss, $480,000. Juror 

Sandberg then stated: 

Could I clarify this whole mess? We don't agree on 

any of this. I will explain how we did this. 

What we did was--There were four with none. What 

we did on each category was then take the monetary 

damage that each person awarded, added it all up, 

including the four nones, zeros, and divided then 

by 12 to receive the amount of damages for each 

item. 

Plaintiff's counsel then asked if the eight jurors in the 

majority all agreed on the process used. Juror Sandberg 

replied: 

We all agreed--Yeah, -- we all agreed -- on the process 

---- and we did it unanimously. We used the same 

process through all four individual categories. We 

didn't use--vou know, if there was -- --We iust didn't 

change the Locess . (~mphasis added. ) 

As the trier of fact on the quotient verdict issue, the trial 

judge had discretion to assign a significant amount of weight 

to Juror Sandberg's statement. Section 26-1-302, MCA; Emick 

V. ~och (1987), 227 Mont. 365, 368, 739 P.2d 947, 949. A 
finding that the jury had agreed to be bound by the quotient 

process based on this statement would not be clearly 

erroneous, particularly due to the immediacy of the statement 

with the rendering of the verdict. 

Subsequent to the hearing to determine the punitive 

damage award and verdict the court conducted its own 

examination of the jurors regarding the amount of the 

compensatory verdict. Again Juror Sandberg described the 

process: 

MS. SANDBERG: Okay. There were eight of us 

that decided there should be actual damages. The 

question was then divided into four subcategories, 

I guess: medical, physical, emotional, and 

economic. Some of us--and I see there was maybe 

another way around of deciding it, but some of us 

didn't feel that medical and physical warranted 

damages. 

So what we did then was, we put in a dollar 

figure, whether it was zero-- everybody did, 

whether it was zero or whatever you wanted. We put 

it into the pool and then we divided by the number 

of jurors and came up with our--came up with a 

dollar amount for each category that way. 

THE COURT: And that came out to a million 

dollars? 

MS. SANDBERG: And then we came up with the 

end number, it was a little under and we just 

rounded it and agreed to that. 

THE COURT: And how did you all come to hit 

upon this way of doing it? 

MS. SANDRERG: Yeah, we-- Well, like even 

today [in determining punitive damages] , just 

working other ways and what not, like instead of 

picking a figure out of the blue and all trying to 

decide on that, that was pretty hard, pretty 
difficult. So we just decided that if everybody 

had their own input and then just divided it 

equally, that everybody then had their say in what 

should be awarded. 

THE COURT: So you just went with whatever 

number--or is that how you did it the other night? 

MS. SANDBERG: Today? 

THE COURT: Not so much-- 

MS. SANDBERG: Today we did it differently 

because it didn't--we couldn't agree today on that. 

It would not be clearly erroneous for the trial judge to 

infer from the above statement of Juror Sandberg that the 

jurors couldn't agree on how to arrive at an amount for a 

punitive damage award, whereas they had agreed in advance on 

how to arrive at the compensatory verdict, by resorting to 

the quotient method. 

Juror Arnold's testimony also indicates that the jurors 

agreed in advance to be bound by the quotient method: 

THE COURT: . . . if you have some comments 

with regard to how . . . you arrived at those 

numbers. . . . 

MS. ARNOLD: -------- We took a vote on how we were 

going --- to do it. And then we took a vote on the 

percentages of what--what amount we should have and 

what percentage each person was responsible for. 

THE COURT: The manner of dividing it by 12, 

how did that come to be? 

MS. ARNOLD: It was all in our--how we felt 

that the person was responsible, and we took a vote 
on that and divided it up. And some of them didn't 

you know, agree to any of it. But we did divide it 

by twelve because they didn't agree on any number 

at all. . . . 

Juror Allen's testimony is similar regarding whether the 

juror's had agreed in advance to be bound by the quotient 

sum : 

THE COURT: And we want to get everybody's 

comments on the record with regard to how it was 

that you came to that method of arriving at the 

verdict. 

MS. ALLEN: Okay. 

THE COURT: So it's your turn to speak. 

MS. ALLEN: Well, it was just--we kind of 

threw different ideas around. And we just--you 

know, everybody took votes on ideas and we just 

came up with that one and it seemed to work out 

best for us. 

Actually, what I should say is, I had been up 

all that night and all that day, so some things I 

remember clearly and other things I'm a little 

foggy on, as you can remember from my answer. 

During the same subject examination by the Court on the 

subject of the verdict, Juror Scharnowske commented on 

whether there was further deliberation after calculation of 

the initial quotient sum: 

MS. SCHARNOWSKE: None of us were happy, that 

s why we came down to the point of getting a 

'igure and dividing it by 12, because everybody had 

an equal say that way. 

THE COURT: Was that the end of it, or did the 

discussion go on from that point? 
MS. SCHARNOWSKE: Well, I don't know. There 

was a lot of discussion prior to that point. 

THE COURT: Oh, yes, I'm sure. 

MS. SCHARNOWSKE: I think everybody had a 

different amount in their mind. 

THE COURT: But once you divided by 12 and got 

a number, approximately the number that you-- Was 

that the number that you put on the verdict? 

MS. SCHARNOWSKE: Mm-hmm. 

THE COURT: Was there further discussion 

concerning those numbers? 

MS. SCHARNOWSKE: Not really. 

With respect to further discussions of the verdict after the 

quotient sum was reached, Juror Yanchisin's testimony is 

similar to Scharnowske's: 

MR. YANCHISIN: So we came up with the idea 

that if everybody would go along with voting on 

what they thought would be a proper amount and then 

total those up and divide by 12, that would get 

the--and then we did that, came up with that amount 

then. And we voted on it and everybody agreed that 

was a reasonable amount. 

THE COURT: Okay. And was there any further 

discussions on it, or that was the end of it? 

MR. YANCHISIN: That was it. 

Juror Scribner's testimony indicates that there may have been 

some further discussion after the quotient sum was 

calculated: 

No, we discussed it. You know, we looked at it 

different ways and everything. 
On the other hand, Juror Kline's testimony indicates that 

there was little further discussion of the verdict amount 

after it was reached other than ro.unding off of the verdict. 

Also, one of the dissenting jurors expressed dismay with the 

quotient process used by the majority, indicating that she 

felt that there was a high degree of chance involved: 

MS. KRUEGER: Because what--It boiled down to 

the point of what the damages were. Okay, for me 

to vote zero someone else would vote more, because 

we divided by twelve. That is my feeling. Maybe 

they didn't, but that was my feeling. 

Clearly, the testimony of the individual jurors upon the 

Court's own examination constitutes substantial evidence 

supporting the court's finding that the jury agreed to be 

bound in advance by the quotient method. In its order 

granting new trial, the District Court thoroughly discussed 

the applicable law, also noting that the quotient sum was 

between 83% and 88% of the total verdict. Even though the 

evidence could indicate there may have been some further 

deliberation after the initial quotient sum was determined, 

it was not clearly erroneous for the trial judge to find that 

the jury was merely rounding off the sum "to make it 'even 

money. "' See Benjamin, - 255 P. at 24. Regardless of the 

evidence in the record to the contrary, there is substantial 

evidence in the jurors' testimony to support such a finding. 

This finding is further supported by the trial court's 

reduction of the medical expenses portion of the verdict from 
$200,000.00 to $35,000.00 based on a lack of evidence. Use 

of the quotient method and a subsequent rounding up of the 

initial sum could have led to inflated figures in various 

damage categories, as happened here on medical expenses. The 

trial court specifically found that only one or two of the 

four categories of damages was adjusted during the rounding 

off process. Not only does this indicate that the verdict 

was determined by chance because it was arbitrarily rounded 

off, it also indicates that two or possibly three of the 

damage categories were determined by chance as they must have 

been entered at the quotient amount. Finally, though some of 

the jurors may have believed that they were not bound by the 

quotient process, jury misconduct as a grounds for a new 

trial only requires that any --- one or more of the jurors are 

induced to assent to a chance determination. Section 

25-11-102(2), MCA. It would not have been clearly erroneous 

for the trial judge to find that Juror Sandberg, for example, 

was induced to assent to the verdict, as well as several of 

the other jurors. 

IV 

The affidavits of the juror's collected from the 

attorneys for both sides are conflicting as to whether the 

jurors in fact agreed in advance to be bound by the quotient 

method and whether the jurors deliberated further after the 
initial quotient sum was reached. There appears to be 

substantial evidence in the affidavits to support either 

proposition. 

Plaintiff maintains that the juror affidavits submitted 

by him, which are either written by each individual juror or 

were transcribed in handwriting during the interview and 

immediately initialed, clearly indicate that the juror's were 

not bound by a prior agreement in the quotient process. 

Plaintiff argues that the affidavits submitted by the 

defendants, are somehow tainted because they were prepared by 

defendants1 attorneys and later submitted to the jurors for 

signatures. Specifically, plaintiff points to the three 

affidavits of Juror Hert. The first, taken on September 9 by 

the plaintiff's attorney, is unclear but seems to indicate 

that the jurors were not bound by the quotient process and 

deliberated further on the amount of damages. The second 

affidavit, taken by defendants' attorneys on September 23, 

clearly states that the jurors agreed in advance to be bound 

by the quotient process. The third affidavit, taken by 

plaintiff's attorney on November 10 and written in Juror 

Hert's own hand, clearly states that the jurors were not 

bound by the quotient and that they deliberated further after 

the quotient was calculated. Juror Hert also states in this 

final affidavit that she must have erred when she gave the 

testimony contained in her second affidavit. 
Admittedly, the same reasons do not exist why there 

should be a strong presumption in favor of the trial court's 

ruling as exist in cases in which facts are determined upon 

conflicting oral testimony; however, we will not ignore the 

discretion of the trial court in granting a new trial upon 

affidavits of misconduct of the jury, although the 

presumption in favor of the court's discretion is less strong 

than in matters determined upon conflicting oral testimony. 

Benjamin, 255 P. at 21. Thus, it was within the discretion 

of the trial court as the trier of fact to weigh and choose 

between the conflicting testimony contained in the 

affidavits. Benjamin, 255 P. at 21; see also 5 26-1-302, 

MCA; Emick, 739 P.2d 949; Olson, 557 P.2d at 823. More 

importantly, the trial judge's exercise of discretion in this 

case involved assigning weight to conflicting oral testimony. 

The trial judge was in a far better position than a reviewing 

court to determine the credibility of the witnesses and to 

weigh the evidence as to whether or not the jurors had agreed 

to be bound by the quotient process. "Findings of fact shall 

not be set aside unless clearly erroneous, and - due regard - 

shall - be given -- to the opportunity -- of the trial court - to judge 

-- of the credibility -- of the witnesses." Rule 52(a), M.R.Civ.P. 

Here, the trial judge was present to directly observe the 

demeanor of the jurors while they gave testimony regarding 

the verdict. Such testimony was unquestionably given in the 
jurors' own words. It was given nearer in time to the 

deliberations in question and therefore is less susceptible 

to the inherent faults of human recollection. When the 

affidavits are considered in conjunction with this testimony 

as a whole the evidence is clearly substantial to support the 

trial judge's finding that the jurors were bound by a prior 

agreement. Because there is substantial evidence in this 

testimony as well as the affidavits to support the District 

Court's findings that the jurors were bound by prior 

agreement, such findings cannot be held clearly erroneous. 

Nor can we find any manifest abuse of discretion in this case 

to warrant reversing the District Court's grant of a new 

trial. 

v 

The plaintiff raises other issues on appeal and the 

defendants also raise several issues on cross-appeal. We 

need not address these issues. A grant of a new trial by the 

trial court is a re-examination of issues of fact, 5 

25-11-101, MCA; it must be commenced fresh or anew. Zeke's 

Distributing Co. v. Brown-Forman Corp. (Mont. 1989), 779 P.2d 

908, 913, 46 St.Rep. 1678, 1683; Town Pump v. Dist. Ct. 

(1979), 180 Mont. 358, 361-362, 590 P.2d 1126, 1128-1129. 

Inasmuch as the case will be tried de -- novo, the parties will 

have an opportunity to raise their appeal and cross appeal 
issues, should they come up at the new trial, at the 

appropriate time. 

The District Court's grant of a new trial is AFFIRMED. 

Justice 

F7e Concur: 

b 

Justices 
Justice John C. Sheehy, dissenting: 

In Thomas v. Whiteside (1966), 148 Mont. 394, 399-400, 421 

P.2d 449, 452, this Court affirmed the propriety of giving to the 

jury the long form verdict instruction from the then extant 

"Montana Jury Instruction Guide. That instruction read as 

follows: 

The law forbids you to determine any issue of this case 

by resort to chance. You will understand this principle 

of law better, perhaps, if I give you an illustration; 

suppose that you jurors, or at least eight of you, agree 

that the plaintiff in this case is entitled to recover 

damages and you then each set down an amount which each 

juror thinks plaintiff should be awarded and that you 

further agree that the average so found will be the 

amount of your verdict. Such a method would be resorting 

to chance and if you do this I would have to set your 

verdict aside as being unlawful. 

The error of this method of arriving at a verdict is in 

your agreeing in advance to use the average figure as 

your verdict. In this connection, however, you are 

advised that it is not error or unlawful for you to each 

set down a figure and find the average as a basis for 

further discussion of what your ultimate verdict might 

or will be so long as you do not agree in advance to be 

bound by that average figure. Also, you are advised that 

if you should follow a procedure along the lines just 

mentioned it is not necessary that all twelve of your 

number join in working out some basis for discussion as 

any eight of you may agree upon a verdict in this case. 

In approving the giving of the foregoing instruction, this 

Court explained its decision: 

This long form of instruction appears to be a correct 

statement of the rule covering quotient verdicts as 

developed by the opinions in this Court. Section 93- 

5603(2) R.C.M. 1947, provides that a new trial may be 

granted upon a showing that a finding was made Ifby a 

resort to the determination of chance, such misconduct 

may be proved by the affidavit of any one of the jurors. 

This provision was interpreted in Great Northern Ry. Co. 

v. Benjamin, 51 Mont. 167, 172, 149 P.2d 968, 969, where 
it was said: "It is only when the jurors acrree in 

advance that the quotient thus obtained shall constitute 

the amount of the verdict, and such agreement is carried 

into effect, that the proceeding constitutes a resort to 

the determination of chance and is condemned by the 

statute above.I1 This rule has been reaffirmed in [citing 

cases]. See also Annotation in 8 A.L.R.3d 335. 

(Emphasis added.) 

Thomas, 421 P.2d at 452. 

Under the foregoing discussion by this Court, there are two 

elements necessary to create an invalid quotient verdict: (1) the 

jurors must agree in advance that the result of the quotient shall 

be their verdict and (2) they must carry the agreement into 

effect. 

In this case there is an absolute lack of evidence that the 

jurors agreed in advance to be bound by the result of the quotient 

and an absolute lack of evidence that they carried such agreement 

into effect. Because thereof, the ~istrict Court, in setting aside 

the jury verdict and granting a new trial because of the purported 

quotient committed manifest abuse of its discretion. 

In order for the reader to perceive this, and in fairness, it 

is necessary to set out in totidem verbis what the jurors related 

respecting the manner in which they arrived at the verdict. 

Taking the foreperson, Maxine E. Kline, first: 

We had a lengthy discussion, and came to an agreement to 

put a bid in and divide it by 12. Then we had more 

discussion and would come to an agreement. We went 

through all four categories like this, medical, lost 

wages, economics and emotional distress. When all four 

categories were finished, it totaled a little over a 

million dollars, and it was discussed and agreed on that 

we would change it to a million. We all 12 voted on 

paper, with results of eight yes and four no, so we took 

that amount and were satisfied with it. 
Juror J. Philip Yanchisin: 

After determining liability, all 12 jurors wrote a total 

amount of damages which they wanted to award to Mr. 

Stanhope for actual damages. Each juror wrote an amount 

of damages on a piece of paper. The 12 amounts were 

totaled and divided by 12. The total amount divided by 

12 was approximately $880,000. Then there was a 

discussion about this amount. Several jurors objected 

to this amount because they felt it was not enough 

damages. 

After more discussion, one juror recommended $1,000,000 

in damages. We all considered that amount. Several 

jurors reduced the amount they wanted to award and 

several jurors raised the amount they wanted to award. 

All 12 jurors then voted on the proposed amount, and 8 

jurors voted yes, and 4 jurors voted no. 

Juror Randall Martinson: 

On voting on the damages being a no voter, voted in all 

actual damages--I voted on the system used to get the 

total, and voting on the results of total. Everybody 

writing a damage amount on a piece of paper then adding 

all damage amounts together and dividing them by 12. 

This amount came through by 4 votes on 4 different 

categories. This number was approximately $833,000. 

Some jurors didn't agree with some of the damage prices. 

Another vote was taken to change to a higher amount. A 

discussion was held for a higher amount. All votes were 

agreed upon for $1,000,000--all 12 jurors voted on this 

amount with 8 for and 4 against this amount. 

Juror Nancy Scharnowske: 

Because we were so greatly separated on our ideas of 

settlement money, we decided for each person to put in 

the amount they felt was just. We talked at great 

lengths about the spread and amounts. To come to a 

definite amount we decided to add the amounts up and 

divide by 12. We argued further and finally admitted the 

amount to $1,000,000 settlement. 

Juror Chester B. Scribner: 

We had a general discussion of amounts and couldn't reach 

a number. To get things started we all wrote down a 

number and averaged them. The amount was about $880,000. 

We then had more discussion because some thought it was 
too high and some thought it was too low. After that we 

argued and finally we voted on a $1,000,000 amount. 

Everyone voted. After that we talked about breaking it 

down and we had a separate vote on each category. 

Everyone voted on each category and all the votes were 

8 to 4. 

Juror Janice M. Kruger: 

To help reach a consensus on the amount of damages to 

award to Mr. Stanhope, each member of the jury wrote an 

amount on a piece of paper. These amounts were totalled 

and divided by 12. 

This total amount was discussed. As a result of those 

discussions, the amount was then changed to One Million 

Dollars. This amount was voted on by each juror, either 

yes or no. Eight jurors voted yes and four jurors voted 

no. This process was done for each category of damages. 

Juror Ellen K. Sandberg: 

For the actual damages the jury finally decided all 12 

individuals should write down the amount he/she believed 

Mr. Stanhope should receive. We then tallied up a total 

dollar amount and divided this by 12 to obtain the 

average. After discussion and agreement by all, the 

average was adjusted to one million dollars. 

Juror Jean H. Bushman: 

On determining the amount of damages, all 12 voted on a 

dollar amount. We then added them up and divided by 12. 

We had discussion on this number and took a final vote. 

We used the same process for each category after the 

division we discussed this thoroughly and finally agreed 

upon an amended amount. 

Juror Alice Marie Allen: 

We discussed what damage Stanhope was entitled to. We 

all entered a figure and we discussed the amount and 

divided by 12. We talked and voted on every question. 

Juror Myrtle P. Arnold: 

The jury had many discussions concerning the damages to 

be awarded to Mr. Stanhope, and used an average method 

to arrive at a working figure from which an amount of 

damages could be discussed. 
We used this method for each of the four categories of 

damages, and there was discussion after each process. 

The total amount of the award was also discussed, and we 

decided on a total damage award of One Million Dollars 

after those discussions. 

Each juror voted on the final amount of each item of 

damages, with the result being eight in favor of the 

amounts and four against the amounts on each category, 

as well as the grand total of One Million Dollars. 

Juror Mary Parrish was unwilling to submit an affidavit. She 

was interviewed by counsel for the plaintiff, Stephen M. Barrett, 

who supplied an affidavit in her place, concerningtheir interview. 

Although no one disputes the veracity of Stephen M. Barrett's 

affidavit, I will not include it here, because it is not directly 

an affidavit of a juror. The general tenor of the affidavit, 

however, is in accord with the other jurors. 

There were three different affidavits from Juror Clarice Hert. 

In the first affidavit on September 9, 1988, she stated: 

Every juror wrote out the amount of damages for each 

category separately and one person read them out loud. 

The numbers were totalled and put on a board and then 

divided by 12. 

For each category, after the number was averaged, all 12 

jurors voted on the total amount awarded to each 

category. 

The jurors went through this process four separate times. 

After discussion all 12 jurors then voted on the grand 

total of One Million Dollars. I always had the option 

to vote and did vote on each decision. 

The affidavit of Clarice Hert dated September 23, 1988, 

obtained by a representative of one of the counsel for one of the 

defendants, stated: 

I take this opportunity to provide a complete and full 

explanation of the workings of the jury in the Stanhope 
verdict. 

That as a member of the jury, I was present during the 

deliberations. That there was a disparity of agreement 

between all of the jurors as to each and every category 

with respect to the issues of damages in Question #3. 

None of the jurors could agree upon the amount of 

damages. As a result of this disagreement among the 

jurors, it was decided and agreed that everyone would 

write down on a piece of paper what they thought should 

be awarded in each and every category and those figures 

would be totaled and divided by 12 and rounded off to 

the nearest $100,000 or $1,000. It was my understanding 

that this figure, that would be rounded off, would be the 

figure that would be put down on the verdict slip and no 

one could or would dissent to this process. For 

instance, if I would have been one of the eight people 

and under the first category of the past and future 

medical expenses I wanted to award $400,000 and after the 

numbers were tabulated and divided by 12, it came out to 

be $200,000, I did not have the opportunity or right to 

dissent and say that, no, I wanted $400,000. Everyone 

had agreed in advance to live with the figure that was 

averaged out by the total divided by 12 with no dissents. 

This agreement was made before the figure was ever even 

divided out. After each category had been gone through 

and rounded off and adjusted to add up to $1,000,000 the 

total figure was voted on by all of the jurors and the 

jurors agreed 8 to 4 that total $1,000,000 figure. 

On November 10, 1988, Clarice Hert gave a handwritten 

statement ltclarifyingll her earlier affidavits: 

I have read the Judgels Order of November 2, 1988, and 

wish to clarify my previous affidavits. 

I would like to clarify the sentence that did not have 

opportunity or right to dissent and say no, I did have 

that right. I did vote no on each category as three 

others. We all agreed on the change in all of the 

figures on each category. Each time there was a total 

we voted on it. I voted zero or no. I was not bound by 

the number agreed on. This was written up when I spoke 

to John Lindsey. Then he put it all down on tape. When 

I read the written statement I must have missed the (&) 

in the sentence. I did have the opportunity to dissent. 

This process took several hours until we finally came up 

with the way of reaching a figure to start from. Each 

number was discussed and voted on time and time again 

until we came up with this way of reaching a figure. 

Everyone wrote a figure down. We added up and divided 
by twelve. We discussed it and decided to make it an 

even $1,000,000. We all voted and it was agreed on. 

This was not a total we came up with. We all decided to 

make it an even $1,000,000. 

deciding grant new trial, the District Court relied 

upon the September 23, 1988 affidavit of Clarice Hert, and the 

affidavits of Scharnowske, Kruger, Sandberg and Kline. Based on 

these and other affidavits, the court found that the jurors had 

"agreed in advance to be bound by a quotient verdict." There is 

absolutely nothing in the affidavits which would warrant the 

conclusion of fact that the jurors had agreed in advance to be 

bound. The conclusion of fact is clearly erroneous. On that point 

alone, without more, the District Court erred, and this Court 

compounds the error by disregarding the manifest abuse of 

discretion by the ~istrict Court and by clinging instead to the 

argument that the District Court's findings are not clearly 

erroneous. 

The District Court made a further pertinent finding that has 

no basis of fact: 

The court finds that the additional damages were not the 

result of further evaluation and discussion based on the 

evidence, but rather on an arbitrary adjustment to the 

quotient.. . . Again, the affidavits reveal nothing on which that finding can 

be based. Rather the opposite is true from the tenor of the 

affidavits. 

I therefore dissent from the majority opinion. I would 

reverse the order of the District Court granting a new trial, and 
proceed to a determination of the other issues which should have 

been decided in this appeal. 

I 

; (f--/bL 

Justice x 

Justice William E. Hunt, Sr., dissenting: 

I join in the dissent of Justice Sheehy.