No. 84-99 INTHE SUPREME COURT OF THE STATE OF MONTATJA 1985

MORRELL TRIBBY, Plaintiff and Respondent,

NORTHWESTERN BANK OF GREAT FALLS, Defendant and Appellant.

APPEAL FROM: 

### District Court of theEighth JudicialDistrict, In and forthe County of Cascade, The Honorable John

### M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Church, Harris, Johnson & Williams; Charles C. Love11 argued, Great Falls, Montana

For Respondent: Anderson & Strause; Howard Strause argued, Great Falls, Montana Sandra

### R. Watts, co-counsel, Great Falls, Montana

Submitted: February 21, 1985

Filed: Decided: August 5, 1985

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.Morrell Tribby filed suitagainstNorthwestern National Bank of Great Falls (hereinafter Norwest) on December 23, 1980, alleging that 

### it wrongfully honored checks on a partnership account without Tribby's required approval and that Norwest retaliated for the initial suitby refusing to make automatic loan advances on 

### a personal account. The jury verdict, following a trial in the fall of 1983, awarded Tribby $119,890 compensatory and $1,000,000 punitive damages

on the firstclaim and found forNorwest on the second claim. Norwest appealsthetrialcourt's rulingon 

### itsobjections to the jury panel and jury selection process and the judgment and verdict on the firstclaim. We affirm in part, reverse inpart and remand fora new trial. On December 8, 1972, Tribby and his nephew Edward Anderson opened a checking account to deposit monies from their partnership and other joint business, in the name of "Tribby-Anderson Land Account" with Norwest. The signature card required both Tribby's and Anderson's signatures on a check before 

### it would be honored by Morwest. The bank statements 

### were to be sent to an address in Great Falls. Until 1979, Norwest occasionally honored checks that did not contain Tribby's signature. Tribby complained and as a result the signature card was annotatedwith "Two Signatures Required" inred. Tribby was the only limited partner in a partnership with Anderson, the general partner. The business engaged in speculation, subdivisionand saleof land inMontana. Tribby and Anderson executed a formal partnership agreement effective January 1, 1973. This agreement gave Anderson managerial control, provided that either party could sign

### checks on the partnership account and divided profits equa1

### ly

# . Norwest issued a 

### new signature card at Anderson's request in January 1979. The new card authorized thebank to honor checks signed by either Anderson or his new wife, Candy, and to send the statements to an address in Spokane, Washington. Tribby's signaturewas not required according to the new card. Norwest did not notify Tribby or obtain his authorization to change the signature requirement or the address. Although the partnership agreement permitted one-party signatureson checks,the bank employ~es who issued the new cardwere not aware of the agreementor its contents. In July 1979, when Tribby went to Norwest on another matter, a 

### vice-president informed him his signaturewas not required to authorize withdrawals on the account but did not tell him about the new card. Tribby disagreed and told the vice-president that no check should be honored without his signature. Later in the fall of 1979, Tribby spoke with anothervice-president about checks being honoredwithout his signature and was informed thatNorwestwould not change its policy of honoring checks signed only by Anderson. In November 1979, Tribby's attorney wrote to Norwest and instructed them not to honor checks unless signed by Tribby. Norwest respondedby stating the signaturecard required only

one signature and that it would not be changed unless a changewas requested in writing by both parties. Tribby and his wife went to the bank in January 1980 and requested a copy of the signature card. They were told the card was lost. When they returned later that same day a different vice-president produced both signature cards. This was Tribby's first notice that a new card had been issued. At this timeNorwest stopped honoring checks containing only one signature.

### Tribby sued Anderson in March 1980 alleging wrongful withdrawal ofmonies frompartnershipaccounts,conversionof partnership property and fraud in withdrawing the funds and inducing Norwest to issue a 

### new signature card. Tribby sued Norwest in December 1980 

### allegingNorwest failed to exercise ordinary care in issuing a 

### new signature card, wrongfully honored checks without Tribby's signature and wrongfully failed to cease honoring checks after being notified to do

so. Following Tribby's suit, Norwest affected Tribby's credit status by placing an outstanding loan to him on a "watch list." The bank refused to renewa loan thathad been renewed annually for several years. It also cancelled his ready reserve account which had permitted Tribby and hiswife to write checks exceeding the balance in their account. The checks would then be covered by the bank as a loan. In a 

### letter informing Tribby that the account was cancelled, Norwest stated the account was overextended although, at the time, the balance on the account had been paid off. In addition, Norwest refused to pay severa1 items presented before Tribby was notified that the account had been restricted or cancelled. Norwest answered the complaint and filed a 

### third party complaint against Anderson and his wife on June 16, 1981. This complaint alleged that Anderson had directed Norwest to accept a new signature card in accordancewith his authority contained in the partnership agreementand that theAndersons

were primarily liable for any loss sustained by Tribby. Norwest also made a 

### motion to dismiss Tribby's complaint and to consolidate Tribby's suit against Anderson with the suit against Norwest. Tribby filed amotion to dismiss the third party claim. Following the submission of briefs and a hearing, the District Court granted Tribby's motion to

### dismiss the third party claim and denied Norwest's motions to dismiss and consolidate the claimson October 7, 

### 1982. The case first came to trial on September 26, 1983. The District Court agreed to Tribby's request to disqualify for cause any prospective juror who had an account with Norwest pursuant to section 25-7-224(3), MCA 

### (1981). When the judge asked how many of the potential jurors were customersof thebank,mostpanel members raised theirhands. He then concluded that a newpanel would be required in order to get a jury and commented that "as the clerks calls the jurors, I will have to ask them that question, because it looks like three-quarters of the jurors in this case are customers of that bank." Later that day the attorneys for Norwest discovered that effective October 1, 

### 1983, the statute had been amended so that the debtor-creditor relationship could no longer be invoked as a challenge for

cause solely because a prospective juror is a depositor of fundswith a 

### bank. The court and opposing counselwere both notified but the court and the parties had no further discussionson questioning the jurors. After the trial had been reset for November 1-4,1983, Tribby's attorney advised a deputy clerk that shewas to ask prospective jurorswhether theyhad anybusinesswithNorwest other than a savingsor checking account. The clerk checked with the judge,who told her to follow the procedure set out in the statute concerning excusing jurors for cause. When the deputy clerks telephoned prospective jurors they identified Norwest as a 

### party; asked each prospective juror whether they had transactions or business other than savings

or checking accounts with Norwest; excused those who said they had transactions or business with Norwest other than deposits; excused prospective jurors who claimed to be ill, infirm or going on vacation; and excused one person who didnot have an account atNorwest but said she 

### w.~asa friend of the bank president's wife. This was done without notice to

or participation by counsel for Norwest. The judge denied Norwest's objections to the jury panel and jury selection process and thecaseproceeded t o t r i a l on November 14, 1983. The seven issues presented by Norwest on appeal are: (1)Was thejury panel selected contrary to law and in violation of Norwest's right to trial by a representative, fairand impartial jury? (2) Did the DistrictCourt err indenying Norwest the opportunity topresent evidence on the cause and extent of Tribby's claimed damages? 

### (3) Did the 

### District Court 

### err in failing to give effect tothe Tribby-Anderson partnership relationship which would require dismissal of thisaction? (4) Did the trial court err inpermitting the jury to consider recovery under "bad faith"tortprinciples? (5) Did the DistrictCourt improperly allow Tribby to amend histheory of the case and damages on theeve of trial totheprejudice of Norwest? 

### (6) Were the damages erroneous, excessive and the resultof passion and prejudice? (7) Was the preparation of a "Certified Supplemental Record" by the

### DistrictCourt an abuse of discretion? The jury panel selection 

### is subject to two separate inquiries. The first, a procedural inquiry, 

### iswhether there

was a material deviation or departure from the statutes on jury selection. The second, a substantive inquiry, 

### is whether the parties had a trial before a fair and impartial jury. Reversible errorcan occur on eitherquestion. Norwest contends that the jury panel selection process used inthis casematerially deviated from three statutesor rules. Rule 47(a) M.R.Civ.P. requires the court to trychallenges forcause and topermit examination of prospective jurors. Subdivision (b) of that rule requires an initial panel be drawn before any voir direexamination of thejury. Here, the clerks examined the prospective jurors using questions given to them by Tribby's counsel without any notice to counsel for Norwest. The clerks released prospective jurors from jury duty based on answers to the questions, thus excusing them for cause without notice to opposing counsel or a ruling by the court. Finally, this questioning took place before an initial panel was called. These actions materially deviate from Rule 47 M.R.Civ.P. on the examination of jurors inthat the clerks rather than the court took these actions and they occurred prior to the callingof an initialpanel. Section 3-15-313, MCA, allows the court, or jury commissioner (heretheclerk) withtheapproval of the court, to excuse prospective jurors if jury service would entail undue hardship. The record does not indicate, with one possible exception, which, if any prospective jurors 

### were excused for undue hardship. The record does indicate the clerk excused jurors because of their relationship with Norwest without the approval of the court. This action 

### is outside thatpermitted by section 3-15-313, MCA. Section 25-7-223, MCA states that challenges for cause may be taken fora debtor-creditor relationbut notwhen that relation arises solely because a prospective juror 

### is a depositor of funds with a bank or similar financial institution. The statute

### isdiscretionaryon 

### itsface; it 

### is exercisable onlyby thejudge not theclerk. The partiesmay raise a challenge for cause, section 25-7-221, MCA, or may waive 

### it,47 Am.Jur.2dI Jury, S328. Thus, even theexistence of the debtor-creditor relation does not disqualify a juror under this statute unless a party raises a challenge for

### cause to the court. The court, not a 

### clerk, must then determine whether the relation is that of a 

### mere depositor of funds with a bank and not sufficient for a 

### challenge for

cause or whether it is a "non-depositor" relation which satisfies the requirement. In this case the clerks inquired about the prospective juror's relation to Norwest and dismissed them on the basis of their answers, thus effectively acting without a 

### challenge by a party, outside the presence of opposing counsel and dismissing jurors for

cause. This alone is a violation of statute. Further, the questions asked of prospective jurors, whether they had business or transactions with Norwest, did not address the proper basis for such a challenge. Numerous types of non-creditor relations fit within the term "transacting business," such as escrow, trustee account, safety deposit box holder, or conducting business for an employer. Jurors were dismissed for these non-creditor relations as well. This action is beyond the authority of a clerk acting as a jury commissioner. Prior Montana case law indicates statutory violations of 

### selection.procedures require reversal of tb.everdict. In Dvorak 

### v. Huntley Project Irrigation District (3.981)

### , 196 Mont. 167, 639 P.2d 62, this Court reversed a verdict where the departures from procedures were removal of paper slips rather than capsules from the box, failure of the clerk to shake the box before names were drawn,placement of names in

a 

### list not drawn by lot, and drawing names outside the presence of the district judge. See also Solberg v. County of Yellowstone (Mont. 1983), 659 P.2d 290, 40 St.Rep. 308. In Dvorak, 639 P.2d at 64, we cited State v. Fitzpatrick (1977), 174 Mont. 174, 180, 569 P.2d 383, 389, where the clerk performed dutiesdelegated to the jury commissionerand judge without supervision,and stated ll[t]herule inMontana

### is that juries must be selected and drawn 

### in substantial compliance with the law.

### " (Citations omitted.) Even where the only deviation was that some of the numbered slips of paper 

### were not enclosed in capsules as required by statute, thisCourt held that substantialcompliancewith statuteswas required and "[alnymaterial deviationordeparture

### is a denial of fundamenta1 constitutiona1 rights. State 

### v. Groom, 49 Mont. 354, 359, 414 Pac. 858; State 

### v. Tighe, 27 Mont. 327, 71Pac. 3.

"It 

### is not the right of the individual necessarily involved, but rather the entire jury system and the selection procedures which must be protected, and when a showing 

### is timely brought before this court 

### we would be 

### remiss in our duties if

### we permitted material deviation or departure from the procedures spelled out by the legislature." State 

### v. DistrictCourt of SilverbowCounty (cited inMont.Rpt. as State ex 

### rel. Henningsen v. 

### District Court) (1959), 136Mont. 354, 360, 348 P.2d 143, 146. The cases cited by Tribby do not support allowing a verdict to stand when there 

### is a material deviation or departure from the jury selectionprocedures 

### setby statute. In State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, the defendant contended that the clerk excused some jurors for slight ortrivial.causes. This Court stated that the record did not indicate the clerk had excused any jurors, and held that the jury had been selected in substantial compliance with the statutes, Coleman 579 P.2d at747. The othercases, discussed below, deal only with the second inquiry on this issue, whether a fairand impartialjury panel was selected, and donot discussviolations ormaterial deviations from the statutes. The purpose of the jury selection statutes 

### is to provide random selection of jurors from the entirepanel or array, Dvorak, 639 P.2d at 64, thus securing a fair andimpartial jury. The jury composition may be found fundamentally unfair for reasons other than 

### a failure to comply with the selection statutes, such as purposeful discrimination in selection because of race or permitting a juror who has a bias orprejudice tohear a case. Norwest contends thatthejury inthiscasewas not impartialbecause

a significant group, those having business or transactions withNorwest, was excluded. However, theauthority cited for thisproposition, Statev. Taylor (1975), 168Mont. 142, 542 P.2d 100, discusses the statutes on selection of the jury array asuncon.stitutiona1because of discriminationbased on social origin or condition. Norwest's challenge 

### isdirected atthe selection of thejury panel rather than the array and does not address the constitutionality of any statute. Further, the class of people excluded does not constitute a cognizable group of constitutional dimensions. Thus, the analysis in Taylor 

### is not applicable to the present case. The nature of the relationship between prospective jurors and Norwest goes directly towhether thejuror may be challenged for cause. Assuming there had been no statutory violations, the question would be whether Norwest had been prejudiced by the dismissal of jurors because of their association with Norwest. 

### In Ehni 

### v. Northern Pacific Railway Co. (1969), 152Mont. 373, 450 P.2d 882, 

### we held that there was no prejudicial error where a judge had dismissed four jury members because of directorindirectassociations with 

### a party. Justice Haswell, writing for the Court stated: "Litigants arenot entitled tohave their cases tried before any particular jurors selected from the panel; their right 

### is to reject, not select; and litigants' rights are sufficientlyprotected ifthey secure a fairand impartialjury drawn in themanner provided by law." (Citations omitted.) 450 P.2d at885.

### In this case,Norwest could not argue that the jury selected

was not fair and impartial since they passed the jury for cause: They could only argue that certain panel. members should have been on the jury. Montana case law has consistently held that a party has no right to have a 

### particularmember of a 

### panel sit on a case. State v. Moran

(1963), 142 Mont. 423, 384 P.2d 777 and State v. Huffman (1931), 89 Mont. 194, 296 P. 789. Thus, without the statutory violations, there would have been no reversible

error in the jury selectionprocess. The second issue concerns rulings made by the District Court on the failure to consolidate Tribby's claims against Anderson and Norwest and the dismissal of Norwest's third party complaint against Anderson. Norwest contends that these actions by the District Court, in addition to the exclusion of Tribby

## 's tax returns and financial statements, of 

### his refusal to accept an offer of compromise and of his contributory negligence,prevented the jury from knowing the true cause and extentofTribby'sdamages. We first address Norwest's contention that Tribby's claims against Anderson and Norwest should have been consolidated pursuant to Rule 42(a)

## , M.R.Civ.P. That Rule provides that claims involving a common question of law or fact may be consolidated or any of the issues may be tried jointly. Consolidation, particularly when denied, rests in the discretion of the court andwill notbe overturned absent

a 

### clear abuse of discretion. St. George 

### v. Boucher (1929), 84 Mont. 158, 274 P. 

### 489. Although there were some similar issues in both cases and consolidation may have been appropriate, we hold the District Court did not abuse its discretionby denying the motion to consolidate. Norwest added the partnership and Anderson as third party defendants in order to try together those issues whereTribby claimed the same damages against them. Norwest alleged contractual indemnity based on the language of the signature card as the basis for relief. The trial court dismissed the third party complaint without indicating the

reasons for the dismissal. While permitting the third parties toremain inthiscasewould not have been error, the trial court did not abuse 

### its discretion by this action. The DistrictCourt ruled thatthe contents of Tribby's tax returns for the years 1973-78 and financial statements for the years 1973-79 

### were not relevant toestablishing the damages to Tribby. The majority rule, referred to as the "collateral source rule," 

### is that "benefits received by a plaintiff from a sourcewholly independent 

### of and collateral to the wrongdoer 

### will not diminish the damages otherwise recoverable from the wrongdoer." 22 Am.Jur.2d1 Damages, $206. This Court applied the rule in Goggans v. Winkley (1972)

## , 159 Mont. 85, 495 P.2d 594, where the defendant contended that plaintiff's testimony regarding damages was speculative and conjectural. Defendant argued that he was prejudiced when the court did not admit evidence regarding future development near the property in dispute which would increase 

### its value for resale and thusmitigatedamages. We held that transactions between the plaintiff and others was collateral, inadmissible evidence under this rule. Tribby's tax returns and personal financial statements reflect other transactions. Tribby's financial gain from the sale of a ranch and 

### its laterrepossession shown inthose documents was income orprofit thathad no relation tothiscause of action and the claimed damages. The record does not show that his increase in net worth was related toordependent on action attributable to Norwest. Profit from a collateral transaction oran overall increase 

### inTribby's networth does not mean he suffered no damage atthe hands of Norwest. We

### therefore hold that the District Court properly excluded the tax returns and financial. statements insofar as they reflected collateralbenefits. Norwest attempted to introduce evidence showing they had offered Tribby the amountof the checks drawnby Anderson plus an additional sum of $4,000 in return for dismissing his lawsuit. According to Rule 408 M.R.Evid., offers of compromise are "not admissible to prove liability for or invalidity of the claim or its amount,"but exclusion is not required if the evidence is offered for anotherpurpose. An offer to compromise isnot admissiblewhenmade in an attempt to effect a settlement. Continental Oil Co. v. Bell (1933), 94 Mont. 123, 21 P.2d 65. 

### Norwest argues the offer is admissible to show thatTribby failed tomitigatedamagesand that Norwest did not seek to act in an oppressive or retaliatory fashion. We are not persuaded by the contention that refusing an offer to settle is a failure to mitigate damagesand we find no directauthority for thatproposition. Nor are we persuaded that an offer to compromise shows a prior intent or lack of intent to act in a particular fashion. Admitting this evidence would go against the basic policy of Rule 408 M.R.Evid, which is to encourage compromisesand settlementofdisputes. Neitherparty should have to fear that what takes place during negotiationswill be used against them at trial. The District Court properly excluded the offersmade to Tribbyby Norwest. The District Court refused to give Norwest's offered jury instruction on the duty of a depositor to examine statements and report errors within a reasonable time. Norwest argues that Tribbylsnegligence in not reviewing the statements was a 

### defense that should have been submitted to the jury. Section 30-4-406,MCA requires the customer to 

### use reasonable care to examine statements sent to him and notifythe bank promptly of his unauthorized signature or alterations. 

### In the case atbar, the statements 

### were not sent to Tribby and there was no question as to his unauthorized signatureoralterations. Section 30-4-406, MCA 

### is not authority for the offered instruction and the Judge properly refused togive 

### it. We therefore do not reach the question raised by Norwest of the extent to which the negligence of Tribby, if any, can be a defense tohis claim

on thetortof breach of a duty of good faith. In the third issue, Norwest contends that Tribby's action should have been dismissed because the partnership agreement authorized Norwest's actions, he lacked standingto

sue since the cause of action was a partnership asset, and Tribby released his claim against Norwest when he reached a settlementwithAnderson. On the firstcontention, Norwest argues thetrial court erroneously precluded 

### it from presenting evidence that Anderson represented to Norwest that he had authority to change the signature card. The trial court refused toadmit Anderson's testimony, a 

### letter from him to Norwest on this point and that portion of the partnership agreement authorizingAnderson to

### writechecks. This 

### is similartothe second issue inthatNorwest was prevented frompresentingto the jury 

### its theory on 

### its authority to act and the reasonableness of 

### its action when confronted with two disagreeing parties. This evidence was relevant to a disputed issue of fact at trial, the extent of Norwest's authority, and should nothave been excluded. Norwest also asserts that Tribby's complaint should have been dismissed because the partnership agreement authorized 

### its action. Dismissal 

### isproper iftheplaintiff can prove no set of facts thatwould entitle him torelief. Rule 41(b),M.R.Civ.P. A jury may choose tofindNorwest didnot have authority to act as 

### it did. The trial court correctly refused to dismiss Tribby's complaint on this basis.Tribby's cause of actionarose, inpart, from Norwest's breach of the 

### terms of the signature card of the checking account. This account was opened prior tothe 

### time Tribby and Anderson set up their partnership. As noted above, dismissal 

### is appropriate only when no 

### set of facts can be proved that would entitle a plaintiff to relief, On these facts Tribby could show his cause of action was not a partnership asset, therefore the 

### District Court properly refused todismiss Tribby's complaint on thisbasis aswell. The final contention Norwest raises in this issue

concerns whether Tribby released hisclaimagainstNorwest by reaching a settlement agreement with Anderson. Tribby's claims against Norwest are not based entirely on the same conduct as his claims against Anderson even though some 

### of the resulting damages may arise from transactions involving both of them. In addition, even assuming Norwest and Anderson 

### werejoint tortfeasors, any release of Anderson may specifically exclude Norwest by 

### its 

### terms. Kussler v. BurlingtonNorthern, Inc. (1980), 186Mont. 82, 606 P.2d 520. Nothing in the record indicates either a release or a non-release of Norwest. Atthe 

### timeNorwest firstargued against extendingbad faithtortprinciples tothiscommercial area, thisCourthad not decided First National Bank in Libby v. Twombly (Mont. 1984), 689 P.2d 1226, 41 St.Rep. 1948. In that case, the bank customer alleged that thebank acted inbad faithwhen 

### it accelerated an indebtedness and offsetthe amount against their checking account. The jury found both a breach of the bank's good faithobligation and falserepresentations by the bank tothe customer. This Court held that these findings,

### along with the bank's possible reckless disregard of the customer's rights, would justify submitting the question of punitive damages to the jury. This Court alsonoted that the bank's relationship to its debtors, in light of its conduct, could justify an imposition of punitive damages. Although Twombly presented a 

### "unique fact situation," 689 P.2d at 1230,many of the same factorsmay be present in the case at bar that would permit the jury to considerpunitive damages. Here, the jury heard evidence on the bank's conduct that might support a finding of reckless disregard for Tribby's rights; the bank stands in the position of superior bargaining power to its customer that was noted in Twombly; and the evidence might support a finding that the bank breached an obligation to Tribby. We 

### are not holding that every contract or statutorily imposed obligation, alone, carries with it an implied covenant of good faith and fair dealing, the breach of which permits recovery in tort. lile hold only that the DistrictCourt,under these circumstances, did not errwhen it instructed the jury to consider recovery under tort principles and, accordingly, punitive damages. The fifth issue concerns theproposed supplemental jury instructionsTribby submitted on November 10, 1983,the last court day before trialbegan. Norwest objected andmoved for

a continuance contending that these were, in effect, amendmentsto thepleadings containingnew legal theoriesand prejudicial to its case. The court ruled there was no amendment to thepleadings and following thepresentations of both sides, gave the offered instructions on breach of an implied duty ofgood faithand emotionaldamages. The

### granting of a new trial forthereasons stated inissue 

### (I), negates any prejudice to Norwest from unexpected jury instructionson new theories. Norwest requested a new trial on the grounds that the jury verdict was excessive and the result of passion and prejudice. See section 25-11-lO2(5), MCA. It 

### also asked that the "Certified Supplemental Record1' prepared by the District 

### Court Judge on May 15, 1984 be removed from the record. We 

### decline torule on the last two issues for the

reason that thenew trialgranted on the 

### firstissue renders thesequestionsmoot. The decisions of theDistrict Court arehereby affirmed inpart, reversed inpart and thecase 

### isremanded for a new

-- 

### JusticesMr. JusticeFrank B. Morrison, Jr., dissenting: I respectfully dissent tothe majority's treatment of thejury selection issue. I would affirm. The facts stated in the majority opinion need amplification. A certified supplemental record, consisting of an affidavit from the trialjudge, 

### sets forththe correct facts with respect to the jury selectionprocess. Because I deem them essential, I quote that affidavitverbatim: "I, JOHN M. McCARVEL, Judge of the District Court of the Eighth Judicial 

### District of the State of Montana, hereby certify that after the jury panel inthe above-entitled matter was excused for cause on September 26, 1983, I made certain statements concerning the procedure to be followed by the Clerk of Courtwhen attempting toassemble thenext jury panel forthiscause. I stated that I did not want tohave the same problem ariseagain and then instructed the Clerk that when she attempted to telephone theprospectivejurors atthe

### timeof the next trial, she was to inquire of the prospective jurors as totheir relationship, if any, with the Defendant Bank. At the 

### time I so instructed the Clerk, I did so from thebench while attorneys for both parties, the Clerk of Court, and the Court Reporter were 

### still present. When I gave that instruction tothe Clerk, I did soina voice loud enough to be heard by all those present in the Courtroom. Atthe 

### time I gave that instruction to the Clerk, none of the attorneys present objected to the instruction toquiz the prospective jurors as to their relationship with the Defendant Rank nor did any attorney ever object tothat instruction. Atno 

### timeon September 26, 1983 or atany 

### time thereafter did I ever tell any of the attorneys for either of the parties that I intended to rescindmy instructiontotheClerk of Court. "DATED this 15 day of May, 1984.

JOHNM. McCARVEL DistrictCourt Judge" It is true that the statutory change in 

### 5 25-7-223(3) (b), MCA, made it clear that a depositor relationship with Bank did not mandatorily disqualify a juror from sittingina case involving Bank. However, thedistrict judge was still free todetermine that those in such a close relationship with Bank would not be allowed to 

### sit on the panel. The 

### District Court here was acting properly in instructing the clerk todisqualify such people from thepaneland, absent a showing of prejudice by Bank, the remaining panel would not be objectionable on the basisthatdepositors



### wereexcluded. Even if we assume arguendo that there was some error that occurred when the clerk excused certainjurors, reversible error does not result, or atleast did not under prior rulingsof thisCourt. 

### In State

### v. Moran (1963), 142 Mont. 423, 384 P.2d 777, this Court held that the absence of certain members of the jury panel- atthe 

### timevoir direwas conducted and the jury selected, did not constitute reversible error. The Court noted that if there was error, the error had nothing to do with the original acquisition of the panel and therefore prejudice had tobe shown. The Moran decision cited State

### v. Huffman (1931), 89 Mont. 194, 198, 296 P. 789, 790, 

### for the proposition that: "The right tochallenge

### isthe right toreject, not to select, a juror; no person can acquire a vested right tohave any particular member of a panel 

### sit uwon hiscase unless and until suchmember hasbeen accepted and sworn. Prejudice

## -- isnotpresumed from error.

# . .." (Emphasis supplied.) 142Mont. at 447, 384 P.2d at790. Likewise, in Ehni v. Northern Pacific Railway Co. (1969)

### , 152 Mont. 373, 450 P.2d 882, 

### we held that where 

### a judge dismissed four jury members, after voir dire, because of their association with one of the parties, there was no prejudicial error absent a showing that the resultant jury

was anythingbut fairand impartial. In the case atbar themajority concedes that appellant has failed to show that the impaneled jury was defective. Therefore, in linewith prior precedent, no reversible error shouldbe found. Common practice in Montana has been for the jurors to filein, talkwith thetrialjudge and be excused. From 

### time to

### time objections to thisprocedure have been lodged. The

### most recent case concerning this practice is Statev. Stroud (Mont. 1984), 683 P.2d 459, 41 St.Rep. 919. In that case the trial court, in the absence of counsel and prior tovoir dire examination, excused two prospective jurors. Defendant claimed error on appeal. Justice Gulbrandson, writing for the majority said: "In reaching this conclusion, we are not suggesting that the trial judge's essentially educational examination should bb adopted by other district judges. Nor are we suggesting that the judge's method of examination was the best one. Certainly a record of any such proceedings should be maintained. Here,-we conc-lude only that there is no credible evidence of nreiudice to thedefeydaz 

## - Stroud.I' 

### (Emphasissup41ieh.) 

### ~tzud, 683 P. 2d at 464,41St.Rep. at 924. In State v. Coleman (1978), 177 Mont. 1, 

### 579 P.2d 732, 200 jurors were drawn according to statute. However, the DistrictCourt clerkwas then allowed to inquireby telephone regardingwhich of those jurorswould be available for trial. The District Court clerk excused 139 jurors and selected 61 who apparently answered they would be available. There was

no statutory authority for the District Court clerk to so act. There is no record of why the clerk selected the 61 jurors who eventually were called to the courthouse. While the majority opinion in Coleman is quite unclear in its treatment of this issue,the Court apparently found no error because Colemanwas unable to showprejudice. A 

### case quite analogous to the case at bar is Kinty v. United Mine Workers ofAmerica (4thCir. 1976), 544 F.2d 706. In that case the trial judge, approximately two and one-half weeks prior to trial,advised all parties he was instructing the clerk to inquire of the prospective jurorswhether they had any "connection with the mining industry" and to remove from the jury list anywho answered in the affirmative. In commenting on that action,the Fourth Circuit stated: "Evenwere the objection not outof time,we are by no means convinced that the trial judge's ruling

### could be assigned as error. Unquestionably the issues in these cases were matters on which all persons in the mining industry have strong and fixed opinions. It is extremely doubtful that under any circumstances such persons could be considered impartial and unbiased in considering and deciding the issues in these cases. Given the discretion available to the trial judge in determining the qualification of jurors, it would be difficult to find a clear abuse of discretion in the action of the trial judge." (Footnote omitted.) Kinty, - 

### 544 F.2d at 723. In 

### State v. Reilly (N.D. 1913), 141

### N.W. 720, 

### the North Dakota Supreme Court noted that a trial court has no right to arbitrarily discharge regular panel memb~rswithout cause. Nevertheless, the North Dakota Court held such practice was not reversible error and said: "[Blut the cases which hold to this proposition fall far short of holding that error is committed where a court, for reasons of its own, has discharged a portion of a panel and either provided for the calling of talesmen or for an additional panel to fill the vacancies, especially where there isnoproof or suggestion ofpartiality on thepart of such court, or of any real prejudice to the defendant. The real thing to be guarded against is the denial of an impartial jury of one's peers.

# ..." Reilly, 141

### N.W. at 723. The law in Montana has been that 

### we will only apply a per se 

### rule requiring reversalwithout a showing ofprejudice where there is error in selection of the array itself. Dvorak v. Huntley Project Irrigation District (1981)

### , 196 Mont. 167, 639 P.2d 62. 7: 

### questioned the wisdom of our decision in Dvorak and corrective legislative action was subsequently taken. Nevertheless, there arguably is some justification in applying sanctions for failure to follow statutory procedures in selection of 

### the array itself. One

can argue that the makeup of a 

### jury panel can be skewed to eliminate certain elements from the panel and that a rule calling for per se reversal has a 

### desirable prophylactic effect. However, if the panel selected is constitutionally sound, there seems tobe no reason for reversal. Perhaps our decision inDvorakwas unsound.

### The majority has here chosen to take a 

### questionable decision, corrected legislatively, and for the first time expand the decision to embrace the eliminationofprospective jurors from a 

### panel selected properly. I 

### can only conclude that the majority wished to reversea juryverdict with which they disagreed. This result-oriented appellate decisionmaking continues to contribute to a chaotic legal process in which lawyers, litigants and trial judges find themselves playing Russian roulette. 

### I respectfully submit that the verdict for plaintiff, together with the judgment entered thereon, should be affirmed.

### Mr. JusticeWilliam E. Hunt, Sr. 

### dissenting:

I 

### dissent. I 

### believe that the District Court was correct in its rulings during this trial and should be affirmed in every respect. /

### Mr. Justice John C. Sheehy,dissenting:

As I read the majority opinion,itreverses theDistrict Courton two grounds, 1) 

### improperdeviation in the selection of the jury panel, and 2) 

### the District Court excluded evidence that would prove Norwest's authority to act and the reasonableness of its actions. I

### disagree with themajority

onboth grounds. It is of course true that the clerk, instructed by the Court, deviated from the statutoryprocedures in getting the jury panel. What was the result? The clerk excluded those prospective jurors who had a debtor-creditor or business relationwith Norwest. No reasonable lawyer,and Ihope, no reasonable court, would have expected that depositors or lenders fromNorwest couldhavebeen permitted to act on this

case as jurors. The purpose of the statutes on jury selection, and the objective of courts construing those statutes, is to provide a fair jury panel. The deviation from the statutesby the clerk did not in this case deprive the parties of a fair jury panel. Instead it insured a 

### fair panel. That fact is evinced in that counsel for Norwest, after interrogating the members of thepanel,passed the jury for cause. Norwest recognized it had a fair jury at the outset of the trial. If error occurred here, itwas harmless

error. On the second point, it is irrelevant to the case the Anderson represented to Norwest that he had authority to change the signature card that Tribby had originally signed, outside of Tribby's presence or knowledge that the changehad occurred. That kind of evidence is in the category used by Eve, when she said, "The serpent made me do it." Norwest had

### a contract with Tribby that was 

### contained. on the signature card. It had no business or right to change 

### ribb by's contract unilaterally and without his knowledge. Norwest's dealings with Anderson without Tribby are inexcuseable, and form no defense toTribby's suit. I 

### dissent.