No. 90-222 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

DARRELL D. HENRICHS, 

Plaintiff and Respondent, 

-vsDONNA E. TODD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the ~hirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

icT 

--3 Calvin J. Stacey, Keefer, Roybal, Hanson, Stacey & 

* Walen, Billing, Montana - 0 

,, , !*! 

-.. For Respondent: 

R. Russell Plath, Halverson, Sheehy & Plath, P.C., 

. . . . c I Billings, Montana 

* & 

Filed: 

Submitted: August 9, 1990 -.. 

4 

Decided: November 8, 1990 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Donna E. Todd appeals from the order of the District Court, 

Thirteenth Judicial District, Yellowstone County, granting a new 

trial to Darrell Henrichs, plaintiff, for irregularities in 

communications between the bailiff and the jury. We affirm. 

The issues presented on appeal are: 

1. Did the bailiff improperly communicate with the jury? 

2. Did the irregularity affect the substantial rights of the 

respondent? 

3. Did the communication deny the respondent's right to a 

fair trial? 

4. Was the grant of a new trial a manifest abuse of 

discretion on the part of the trial court? 

On January 25, 1990, the jury returned a verdict in favor of 

the defendant by special interrogatory. On February 5, 1990, 

plaintiff Henrichs filed his motion for a new trial pursuant to 

Rule 59, M.R.Civ.P., and 99 25-11-101through -104, MCA. Henrichs 

alleged an irregularity in the proceedings which prevented him from 

receiving a fair trial. The irregularity alleged was that during 

the course of the deliberations, the jury had a question regarding 

the application of the comparative negligence statute and the 

payment of damages to the plaintiff. The jury wanted to know if 

damages would still be paid to Henrichs if it found that the 

defendant was 50 percent negligent and the plaintiff was 50 percent 

negligent. The jury notified the bailiff that it wanted to ask the 

question; the bailiff stated that he could not answer it and that 

2 
all of the attorneys and court personnel would have to be called 

back into court to properly respond. When the foreperson asked how 

long all this would take, the bailiff responded that it would take 

about as long as it takes "for hell to freeze over.Ig Other jurors 

overheard the remark and decided to resolve the issue on their own. 

The jury found for the defendant and the plaintiff timely 

filed a motion for new trial. After oral argument, the District 

Court found that the bailiff's conduct had prevented the plaintiff 

from receiving the benefit of a statutory procedure designed to 

insure a fair trial and that such conduct materially affected the 

substantial right of the plaintiff to have the jurors' question 

presented to the court. 

The conduct of the bailiff in this case is governed by 5 25- 

7-403 and 5 25-7-405, MCA. These statutes require that the bailiff 

is not to have any communication with the jury except by order of 

the court; and that if the jury has a question on testimony or on 

a point of law, it may require the bailiff to bring them into 

court. Section 25-7-403, MCA, provides in part: 

When the case is finally submitted to the jury, it may 

decide in court or retire for deliberation. If the 

jurors retire, they must be kept together in some 

convenient place, under charge of an officer, until at 

least two-thirds of them agree upon a verdict or are 

discharged by the court. Unless by order of the court, 

the officer havincr them under his charse must not suffer 

anv communication to be made to them or make any himself, 

except to ask them if they or two-thirds of them are 

agreed upon a verdict; and he must not, before their 

verdict is rendered, communicate to any person the state 

of their deliberations or the verdict agreed upon. 

(Emphasis added.) 
Section 25-7-405, MCA, provides in pertinent part: 

After the jury has retired for deliberation, if there be 

a disagreement among the jurors as to any part of the 

testimony or if they desire to be informed of any point 

of law arising in the cause, they may require the officer 

to conduct them into court. 

The conduct of the bailiff in this case was clearly in violation 

of 5 25-7-403 and 5 25-7-405, MCA. He did communicate to the jury 

and he did not conduct it into court for resolution of their 

question. 

Appellant contends that the communication between the bailiff 

and the jurors, although improper, was immaterial and did not have 

a prejudicial effect on the jury. Section 25-11-102, MCA, governs 

grounds for a 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: (1) 

irregularity in the proceedings of the court, jury, or 

adverse party or any order of the court or abuse of 

discretion by which either party was prevented from 

having a fair trial; 

Appellant relies on this Court's decision in Ahmann v. 

American Federal Savings and Loan Association, 235 Mont. 184, 766 

P.2d 853 (1988), for authority to conclude that the bailiff's 

behavior did not materially affect plaintiff's rights. In Ahmann, 

a juror testified that when she asked the bailiff whether the 

jurors could talk to the judge about their questions, she was 

informed that they could only communicate with the court in 

writing. The juror further testified that the bailiff told her 
that the judge probably would not consider the jury's questions 

until the next day or until after the trial was completed. This 

Court concluded that the bailiff's communication did not prevent 

the jurors from asking questions of the judge, and therefore did 

not materially affect the plaintiff's rights. 

The facts of Ahmann are not analogous to the facts before us. 

The bailiff did not merely state a reasonable time in which the 

jurors could expect a response, as in Ahmann; here he communicated 

that it was almost impossible to get a response at all. By so 

doing, he effectively prevented the jury from clarifying a crucial 

point of law. 

Appellant's next argument that the jury was instructed on the 

issue of comparative negligence and therefore did not need to ask 

the question is equally without merit. It is not that the jury was 

without instruction that is at issue; it is that they were 

prevented from asking a question which they had a right to ask. 

Section 25-7-405, MCA. Further, the bailiff prevented the Judge 

from ever having the opportunity to decide whether to answer the 

jury's inquiry. It is also beside the point that, as appellant 

notes, the communication was "done in a joking fashion and in no 

way was an attempt on his part to discourage the members of the 

jury from asking their question.I1 The effect of the remark was to 

prevent the jurors from attempting to contact the court materially 

affecting the substantial right of the respondent to have the jury 

fully informed. Clarification of the issue of comparative 

negligence was especially important in this case. Without the 
clarification, the possibility existed that some of the jurors were 

operating under the mistaken belief that the defendant's negligence 

had to be greater than the negligence of the plaintiff before a 

verdict for the plaintiff could be given. 

Appellant also maintains that the statements of the jurors 

that they were not influenced through the conduct of bailiff Marcum 

are determinative of whether or not respondent was denied the right 

to a fair trial. Appellant submits eight affidavits from the 

jurors stating that their decision in the matter was not affected 

by the bailiff's conduct. Although the jurors' statements are not 

to be taken lightly, it remains pure speculation on their part 

whether or not the process may have gone differently with 

additional instruction from the court. The affidavits fail as 

proof of a fair trial when weighed against the bailiff's actions. 

IV. 

Appellant contends that the trial court's grant of a new trial 

to the respondent is not supported by substantial evidence and is 

clearly erroneous, and constitutes a manifest or obvious abuse of 

discretion. This Court recently set out the standard of review for 

decisions to grant a new trial: 

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 trialjudge and will not be overturned 

absent a showing of manifest abuse of discretion. 

Stanhope v. Lawrence, 787 P.2d 1226, 1228, 47 St.Rep. 438, 440 

(Mont. 1990). In the case before us, appellant has the burden of 
showing that the judge abused his discretion by granting the new 

trial. Because there was no dispute that the bailiff had 

substantial communication with the jury, and failed to report the 

jury's questions to the court, we conclude that no showing was made 

that the trial judge manifestly abused his discretion. 

Affirmed. 

Justices /,/'