No. 84-99 

IN THE 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 the Eighth Judicial District, 

In and for the 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 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Morrell Tribby filed suit against Northwestern 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 suit by 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 first claim and found for Norwest on the second claim. 

Norwest appeals the trial court's ruling on its objections to 

the jury panel and jury selection process and the judgment 

and verdict on the first claim. We affirm in part, reverse 

in part and remand for a 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 annotated with "Two Signatures 

Required" in red. 

Tribby was the only limited partner in a partnership 

with Anderson, the general partner. The business engaged in 

speculation, subdivision and sale of land in Montana. 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 

equa 1 ly . 

Norwest issued a new signature card at Anderson's 

request in January 1979. The new card authorized the bank 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 signature was 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 signatures on checks, the bank employ~es who issued 

the new card were not aware of the agreement or its contents. 

In July 1979, when Tribby went to Norwest on another 

matter, a vice-president informed him his signature was 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 

another vice-president about checks being honored without his 

signature and was informed that Norwest would 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 responded by stating the signature card required only 

one signature and that it would not be changed unless a 

change was 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 time Norwest stopped honoring checks containing only one 

signature. 
Tribby sued Anderson in March 1980 alleging wrongful 

withdrawal of monies from partnership accounts, conversion of 

partnership property and fraud in withdrawing the funds and 

inducing Norwest to issue a new signature card. Tribby sued 

Norwest in December 1980 alleging Norwest 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 renew a loan that had been 

renewed annually for several years. It also cancelled his 

ready reserve account which had permitted Tribby and his wife 

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 severa 1 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 accordance with his authority 

contained in the partnership agreement and that the Andersons 

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 a motion 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 claims on 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 

customers of the bank, most panel members raised their hands. 

He then concluded that a new panel 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 

funds with a bank. The court and opposing counsel were both 

notified but the court and the parties had no further 

discussions on questioning the jurors. 

After the trial had been reset for November 1-4, 1983, 

Tribby's attorney advised a deputy clerk that she was to ask 

prospective jurors whether they had any business with Norwest 

other than a savings or 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 did 
not have an account at Norwest but said she w.~as a 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 the case proceeded t o t r i a l on November 14, 1983. 

The seven issues presented by Norwest on appeal are: 

(1) Was the jury panel selected contrary to law and in 

violation of Norwest's right to trial by a representative, 

fair and impartial jury? 

(2) Did the District Court err in denying Norwest the 

opportunity to present evidence on the cause and extent of 

Tribby's claimed damages? 

(3) Did the District Court err in failing to give 

effect to the Tribby-Anderson partnership relationship which 

would require dismissal of this action? 

(4) Did the trial court err in permitting the jury to 

consider recovery under "bad faith" tort principles? 

(5) Did the District Court improperly allow Tribby to 

amend his theory of the case and damages on the eve of trial 

to the prejudice of Norwest? 

(6) Were the damages erroneous, excessive and the 

result of passion and prejudice? 

(7) Was the preparation of a "Certified Supplemental 

Record" by the District Court an abuse of discretion? 

The jury panel selection is subject to two separate 

inquiries. The first, a procedural inquiry, is whether 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 error can occur on either question. 

Norwest contends that the jury panel selection process 

used in this case materially deviated from three statutes or 

rules. Rule 47(a) M.R.Civ.P. requires the court to try 
challenges for cause and to permit examination of prospective 

jurors. Subdivision (b) of that rule requires an initial 

panel be drawn before any voir dire examination of the jury. 

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 in that the clerks rather than the 

court took these actions and they occurred prior to the 

calling of an initial panel. 

Section 3-15-313, MCA, allows the court, or jury 

commissioner (here the clerk) with the approval 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 that permitted by section 3-15-313, MCA. 

Section 25-7-223, MCA states that challenges for cause 

may be taken for a debtor-creditor relation but not when that 

relation arises solely because a prospective juror is a 

depositor of funds with a bank or similar financial 

institution. The statute is discretionary on its face; it is 

exercisable only by the judge not the clerk. The parties may 

raise a challenge for cause, section 25-7-221, MCA, or may 

waive it, 47 Am.Jur.2dI Jury, S328. Thus, even the existence 

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.e verdict. 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 duties delegated to the jury commissioner and 

judge without supervision, and stated ll[t]he rule in Montana 
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, 

this Court held that substantial compliance with statutes was 

required and 

"[alny material deviation or departure is 

a denial of fundamenta 1 constitutiona 1 

rights. State v. Groom, 49 Mont. 354, 

359, 414 Pac. 858; State v. Tighe, 27 

Mont. 327, 71 Pac. 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. 

District Court of Silverbow County (cited 

in Mont.Rpt. as State ex rel. Henningsen 

v. District Court) (1959), 136 Mont. 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 selection procedures set by statute. 

In State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, the 

defendant contended that the clerk excused some jurors for 

slight or trivial. 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 at 747. The other cases, 

discussed below, deal only with the second inquiry on this 

issue, whether a fair and impartial jury panel was selected, 

and do not discuss violations or material deviations from the 

statutes. 

The purpose of the jury selection statutes is to 

provide random selection of jurors from the entire panel or 

array, Dvorak, 639 P.2d at 64, thus securing a fair and 
impartial 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 or prejudice to hear a case. Norwest 

contends that the jury in this case was not impartial because 

a significant group, those having business or transactions 

with Norwest, was excluded. However, the authority cited for 

this proposition, State v. Taylor (1975), 168 Mont. 142, 542 

P.2d 100, discusses the statutes on selection of the jury 

array as uncon.stitutiona1 because of discrimination based on 

social origin or condition. Norwest's challenge is directed 

at the selection of the jury 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 to whether the juror 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), 152 Mont. 373, 450 P.2d 882, we held that 

there was no prejudicial error where a judge had dismissed 

four jury members because of direct or indirect associations 

with a party. Justice Haswell, writing for the Court 

stated: 

"Litigants are not entitled to have their 

cases tried before any particular jurors 

selected from the panel; their right is 

to reject, not select; and litigants' 

rights are sufficiently protected if they 

secure a fair and impartial jury drawn in 

the manner provided by law." (Citations 

omitted.) 450 P.2d at 885. 
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 

particular member 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 selection process. 

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 extent of Tribby's damages. 

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 and will not be 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 

discretion by denying the motion to consolidate. 

Norwest added the partnership and Anderson as third 

party defendants in order to try together those issues where 
Tribby 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 to remain in this case would not have been error, the 

trial court did not abuse its discretion by this action. 

The District Court ruled that the contents of Tribby's 

tax returns for the years 1973-78 and financial statements 

for the years 1973-79 were not relevant to establishing the 

damages to Tribby. The majority rule, referred to as the 

"collateral source rule," is that "benefits received by a 

plaintiff from a source wholly 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 thus mitigate damages. 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 later repossession shown in those documents was 

income or profit that had no relation to this cause of action 

and the claimed damages. The record does not show that his 

increase in net worth was related to or dependent on action 

attributable to Norwest. Profit from a collateral 

transaction or an overall increase in Tribby's net worth does 

not mean he suffered no damage at the hands of Norwest. We 
therefore hold that the District Court properly excluded the 

tax returns and financial. statements insofar as they 

reflected collateral benefits. 

Norwest attempted to introduce evidence showing they 

had offered Tribby the amount of the checks drawn by 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 another purpose. An 

offer to compromise is not admissible when made 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 that Tribby failed to mitigate damages and 

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 

damages and we find no direct authority for that proposition. 

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 

compromises and settlement of disputes. Neither party should 

have to fear that what takes place during negotiations will 

be used against them at trial. The District Court properly 

excluded the offers made to Tribby by 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 Tribbyls negligence 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 notify 
the bank promptly of his unauthorized signature or 

alterations. In the case at bar, the statements were not 

sent to Tribby and there was no question as to his 

unauthorized signature or alterations. Section 30-4-406, MCA 

is not authority for the offered instruction and the Judge 

properly refused to give 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 to his claim 

on the tort of 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 standing to 

sue since the cause of action was a partnership asset, and 

Tribby released his claim against Norwest when he reached a 

settlement with Anderson. 

On the first contention, Norwest argues the trial 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 to admit 

Anderson's testimony, a letter from him to Norwest on this 

point and that portion of the partnership agreement 

authorizing Anderson to write checks. This is similar to the 

second issue in that Norwest was prevented from presenting to 

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 not have been excluded. 

Norwest also asserts that Tribby's complaint should 

have been dismissed because the partnership agreement 

authorized its action. Dismissal is proper if the plaintiff 

can prove no set of facts that would entitle him to relief. 

Rule 41(b), M.R.Civ.P. A jury may choose to find Norwest did 
not have authority to act as it did. The trial court 

correctly refused to dismiss Tribby's complaint on this 

basis. 

Tribby's cause of action arose, in part, from Norwest's 

breach of the terms of the signature card of the checking 

account. This account was opened prior to the 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 to dismiss Tribby's complaint on this basis as well. 

The final contention Norwest raises in this issue 

concerns whether Tribby released his claim against Norwest 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 were joint tort feasors, any release of Anderson may 

specifically exclude Norwest by its terms. Kussler v. 

Burlington Northern, Inc. (1980), 186 Mont. 82, 606 P.2d 520. 

Nothing in the record indicates either a release or a 

non-release of Norwest. 

At the time Norwest first argued against extending bad 

faith tort principles to this commercial area, this Court had 

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 the bank acted in bad faith when 

it accelerated an indebtedness and offset the amount against 

their checking account. The jury found both a breach of the 

bank's good faith obligation and false representations by the 

bank to the 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 also noted 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 factors may be present in the case at 

bar that would permit the jury to consider punitive 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 District Court, under these circumstances, 

did not err when it instructed the jury to consider recovery 

under tort principles and, accordingly, punitive damages. 

The fifth issue concerns the proposed supplemental jury 

instructions Tribby submitted on November 10, 1983, the last 

court day before trial began. Norwest objected and moved for 

a continuance contending that these were, in effect, 

amendments to the pleadings containing new legal theories and 

prejudicial to its case. The court ruled there was no 

amendment to the pleadings and following the presentations of 

both sides, gave the offered instructions on breach of an 

implied duty of good faith and emotional damages. The 
granting of a new trial for the reasons stated in issue (I), 

negates any prejudice to Norwest from unexpected jury 

instructions on 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 to rule on the last two issues for the 

reason that the new trial granted on the first issue renders 

these questions moot. 

The decisions of the District Court are hereby affirmed 

in part, reversed in part and the case is remanded for a new 

- - 

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

I respectfully dissent to the majority's treatment of 

the jury selection issue. I would affirm. 

The facts stated in the majority opinion need amplification. A certified supplemental record, consisting of an 

affidavit from the trial judge, sets forth the correct facts 

with respect to the jury selection process. Because I deem 

them essential, I quote that affidavit verbatim: 

"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 

in the 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 Court when attempting to assemble the next 

jury panel for this cause. I stated that I did not 

want to have the same problem arise again and then 

instructed the Clerk that when she attempted to 

telephone the prospective jurors at the time of the 

next trial, she was to inquire of the prospective 

jurors as to their relationship, if any, with the 

Defendant Bank. At the time I so instructed the 

Clerk, I did so from the bench while attorneys for 

both parties, the Clerk of Court, and the Court 

Reporter were still present. When I gave that 

instruction to the Clerk, I did so in a voice loud 

enough to be heard by all those present in the 

Courtroom. At the time I gave that instruction to 

the Clerk, none of the attorneys present objected 

to the instruction to quiz the prospective jurors 

as to their relationship with the Defendant Rank 

nor did any attorney ever object to that instruction. At no time on September 26, 1983 or at any 

time thereafter did I ever tell any of the attorneys for either of the parties that I intended to 

rescind my instruction to the Clerk of Court. 

"DATED this 15 day of May, 1984. 

JOHN M. McCARVEL 

District Court 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 sitting in a case involving Bank. However, the district 

judge was still free to determine 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 to disqualify such people from the panel 
and, absent a showing of prejudice by Bank, the remaining 

panel would not be objectionable on the basis that depositors 

were excluded. 

Even if we assume arguendo that there was some error 

that occurred when the clerk excused certain jurors, reversible error does not result, or at least did not under prior 

rulings of this Court. 

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- at the time voir dire was 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 to be shown. The Moran decision cited State v. 

Huffman (1931), 89 Mont. 194, 198, 296 P. 789, 790, for the 

proposition that: 

"The right to challenge is the right to reject, not 

to select, a juror; no person can acquire a vested 

right to have any particular member of a panel sit 

uwon his case unless and until such member has been 

accepted and sworn. Prejudice -- is not presumed from 

error. . . . " (Emphasis supplied.) 142 Mont. at 

447, 384 P.2d at 790. 

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, a fter voir dire, because 

of their association with one of the parties, there was no 

prejudicial error absent a showing that the resultant jury 

was anything but fair and impartial. 

In the case at bar the majority concedes that appellant 

has failed to show that the impaneled jury was defective. 

Therefore, in line with prior precedent, no reversible error 

should be found. 

Common practice in Montana has been for the jurors to 

file in, talk with the trial judge and be excused. From time 

to time objections to this procedure have been lodged. The 
most recent case concerning this practice is State v. Stroud 

(Mont. 1984), 683 P.2d 459, 41 St.Rep. 919. In that case the 

trial court, in the absence of counsel and prior to voir dire 

examination, excused two prospective jurors. Defendant 

claimed error on appeal. Justice Gul brandson, 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 the defeydaz 

Stroud. I' (Emphasis sup41ieh. ) ~tzud, 683 P. 2d at 

464, 41 St.Rep. at 924. 

In State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732, 

200 jurors were drawn according to statute. However, the 

District Court clerk was then allowed to inquire by telephone 

regarding which of those jurors would 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 Coleman was unable to show prejudice. 

A case quite analogous to the case at bar is Kinty v. 

United Mine Workers of America (4th Cir. 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 jurors whether they 

had any "connection with the mining industry" and to remove 

from the jury list any who answered in the affirmative. 

In commenting on that action, the Fourth Circuit stated: 

"Even were the objection not out of 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~rs without 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 

is no proof or suggestion of partiality on the part 

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 reversal without a showing of prejudice 

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 to be no reason for reversal. Perhaps our 

decision in Dvorak was unsound. 
The majority has here chosen to take a questionable 

decision, corrected legislatively, and for the first time 

expand the decision to embrace the elimination of prospective 

jurors from a panel selected properly. I can only conclude 

that the majority wished to reverse a jury verdict 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. Justice William 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, it reverses the District 

Court on two grounds, 1) improper deviation 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 the majority 

on both grounds. 

It is of course true that the clerk, instructed by the 

Court, deviated from the statutory procedures in getting the 

jury panel. What was the result? The clerk excluded those 

prospective jurors who had a debtor-creditor or business 

relation with Norwest. No reasonable lawyer, and I hope, no 

reasonable court, would have expected that depositors or 

lenders from Norwest could have been 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 statutes by 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 the panel, passed the jury 

for cause. Norwest recognized it had a fair jury at the 

outset of the trial. If error occurred here, it was 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 change had 

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 to Tribby's suit. 

I dissent.