*1 Plain DVORAK, J. and PATRICIA W. DVORAK ROGER Respondents Cross-Appellants, tiffs DISTRICT, JOHN PROJECT IRRIGATION HUNTLEY Ap Defendants MAYNARD, PROPP and NORMAN pellants. No. 81-217. Submitted Oct. 1981. Decided Dec. 1981. Rehearing Denied Jan. 1982.
Harwood, Gunderson, Anderson, Brown, Gerbase, Galles & argued, Billings, Jones, Cebull & Brown defen- Rockwood for appellants. dants and Roybal, Stacey Stacey
Keefer, Hanson, Jarussi, & Calvin J. argued, Billings, for the Dvoraks. opinion
MR. CHIEF JUSTICE HASWELL delivered the of the Court. damages against irrigation
In an action district and employees provide irrigation two of its for refusal to water to plaintiffs’ plaintiffs compen- farm, the District Court awarded satory punitive damages conformity with a ver- post-trial In a order, dict. the District Court vacated the punitive damages against irrigation award of district and denied new trial. We reverse and remand for new trial. April plaintiffs Roger 23, 1976, On and Ann Dvorak filed a damage County action in the District Court of Yellowstone against Huntley Project Irrigation defendants District and Maynard, employees, manager, two of its Norman its John a ditch rider. Plaintiffs actual Propp, sought damages losses in 1974 crop punitive damages defendants, $50,000 each of these against the defendants cross-claimed for punitive damages against plaintiff Roger Dvorak.
On November 7,1980, the returned a verdict for plain- $5,000 tiffs in the amount of compensatory damages $40,000 each punitive damages against of the three defen- dants. The denied defendants’ cross-claim against plain- tiff Dvorak Roger for punitive damages.
Thereafter, defendants moved for a new trial. The District Court struck the award of punitive defen- damages against dant Huntley Project Irrigation District and denied new trial.
Defendants from denial appeal of their motion for new trial and plaintiffs cross-appeal part the District Court’s order striking $40,000 punitive damages award against defendant Huntley Project Irrigation District.
We restate the issues raised on appeal in this cross-appeal *3 manner:
1. Did the manner of drawing the preselected list for jury this trial violate sections 25-7-202 MCA, thereby denying appellants’ to a trial before a selected in the manner provided law? by
2. Were employees Maynard and or immune Propp exempt from a punitive damage judgment against them?
3. Did the District err in Court the striking punitive damage award against Huntley Project Irrigation District?
The sub-issues will parties’ be discussed under the principal issues set forth above to the extent necessary for determina- tion of this appeal.
The Irrigation District contends that the manner in which the was selected violated Montana applicable statutes. The in statutes are as follows: Judge capsules containing to draw ballots. When
”25-7-202. an issue of fact to be tried a by trial, district in the judge of the clerk presence of the court must capsules many juror openly box as of out of the trial draw jurors containing thereon, one after of the names ballots with jury.” as are sufficient to form another, (( cap- drawing capsules. the first
“25-7-204.Mode Before of containing the box must drawn, have been a ballot shall sule thoroughly capsules as to mix the and well shaken so be closed containing capsule judge must draw The district therein. aperture through juror’s name thereon ballot with enough only large admit his hand conve- made in the lid niently gazing judge into said box before said and without capsule.” drawing while said not set above were follow
The out paper deputy Instead, in clerk of court removed ed this case. capsules, deputy slips, The a metal clerk did from box. not The names were drawn. names not shake the box before the placed deputy that clerk were on list drawn jury. Finally, prior impaneling trial lot drawn statutory procedure important from the the most prospective jurors’ place deputy clerk drew the took when the presence of the names the metal box outside the district judge. purpose of
This these violated the fundamental jurors by lot to insure random selection of trial statutes, viz. array. statutory requirement panel entire from the encapsulating jurors’ containing names and ballots statutory drawing shaking thoroughly is the the box before statutory achieving require- method for random selection. jurors ment names the district draw the presence clerk of court is to insure that statutory procedures are followed. The violations objective insuring here selection. defeated the random County In v. District Court Silver Bow *4 importance 143, 354, Mont. 348 P.2d this Court discussed the following jury held, of the selection statutes necessarily involved,
“It is not the
the individual
procedures
jury system
but
the entire
and the selection
rather
showing
timely
protected,
which must be
and when
before
we
be
in our
this court
would
remiss
duties
we
material deviation or
the
permitted
pro-
cedures
out
the
“. . all . duties Specifically, to the commis- delegated sion and district court were clerk by the performed court without While we have apparent overseeing. no the cause to faith of good public involved, officers it is obvious the scheme selecting drawing jury was circumvented. rule in completely Montana is that must selected and drawn in juries substantial com- with the law. Where the pliance disregard for legislative man- dates amounts to more than technical irregularity substantial has not been at compliance achieved.” Respondents contend that the jury selection process used the District Court in this case was typical of that court. Therefore, respondents contend that counsel for the District should have known to objected jury selection process and he should have immediately not waited until a week after verdict had been entered to make his known. objection basic flaw this contention is that Ir- counsel for the
rigation District did not discover the in the discrepancies selection until a week process after the trial. Further, counsel had reason, no to his prior inquiries, suspect were not In other being words, followed. the “means of were not available for counsel knowledge” before or trial. object during the v. McKenzie Ledger
In 107 Mont. this Court discussed the necessity objecting impanel- of a in a ing manner. This Court held: timely “. . . that if counsel does have or means knowledge, knowledge, irregularity drawing jury, verdict, from which it is until panel selected after *5 172 new the first time on motion for be raised for
trial.” rely and a to on the In counsel had case, this The fact that no actual duties. clerk follow their to prejudice a different irrelevant. Whether has shown is been the have resulted had verdict would speculative, conjectural impossi- purely and been followed is beyond well a mere The District Court went ble to determine. departure and this the selection statutes technical type reversal of verdict and necessitates the the of proper manner. a with a selected in the retrial retrial, on we will determine To assist the District Court appeal. in this two other issues raised presented is the District whether defen- second issue Maynard exempt Propp the are and immune from dants and against damages exemplary punitive them. The awarded and Irrigation of sections 2-9-104 contends that because District Maynard Propp are liable the 2-9-105,MCA, and not exemplary $40,000 award. apply MCA, do -105, 2-9-104and individual
Sections governmental the state and entities. defendants but to applies Chapter section of to individual defendants provides: MCA, section which entity joined to be as “Governmental defendant- (1) employees. It is the immunization and of indemnification provide purpose in- for the immunization and of this section to public employees sued for their demnification of officers acts, tort or felonious taken actions other than intentional scope employment. of within the course “(2) against any employee brought state, a In action entity city, county, governmental a town, other or negligent actionable act, error, or omission or other conduct acting employee while within the course committed entity employment, governmental scope his or office party employer to the action. shall be made defendant “(3) entity pro- Recovery against governmental under the through chapter parts shall 3 of this constitute visions of recovery damages by any complete bar action matter, claimant, by against reason of the same subject act, error, whose or omis- negligence wrongful employee In sion or other conduct rise to claim. gave actionable such action against governmental entity, employee whose conduct rise to the suit shall be immune from suit gave of the same matter en- subject reasons governmental or is tity by judicial bound determination that acknowledges conduct which the claim is arises out of upon course such unless scope employees’ employment, claim is based an intentional tort or felonious act of employee.
“(4) In in any action which a entity governmental employee is a defendant, shall be party employee indemnified governmental entity money employer judgments he legal to which be as a result of the expenses may subject unles suit the conduct which the claim is did not upon in- or is an arise out of course and his scope employment tentional tort felonious act the employee.” (Emphasis added.) section,
Under this individual defendants are immune from sued for their being actions unless their act is intentional or felonious. 2-9-305(1), Section MCA. The con- Irrigation District tends that this Court cannot as to whether the speculate jury, verdict, had found Maynard and to have Propp com- mitted an intentional tort.
The original action was based violation of sec 85-7-1911(1),MCA, tion which states in pertinent part: “The board of commissioners shall apportion the water for irrigation among lands in the just district and . manner . .” The equitable found District had violated this section and that Propp their in- Maynard by dividual acts had also violated this section. There awas clear violation of a statutory duty District, when the through acts of Propp Maynard, failed to provide water failing provide Dvoraks. The “act” water in this case was arguably justify an intentional act as such it would punitive damages. award Section 27-1-221, MCA.
The Irrigation District contends that no of actual showing malice was made and therefore award punitive damage
174 Sec. Bank In First cannot stand. Maynard
against Propp
1040,
P.2d
Mont., v. Goddard
(1979),
Bozeman
held:
this Court
854, 864-865,
1048-1049,
St.Rep.
is not
to show actual malice to recover
necessary
“It
Harnington Holiday
Corpora
v.
Rambler
damages.
punitive
tion
Mont.,
(1978),
578, 35
575 P.2d
46. Fraud or malice
St.Rep.
may
17-208,
be actual or
Section
R.C.M.
now
presumed.
section
be
MCA.
malice
shown
Implied
by proof
that defendant
in a
it to
knowing
course of conduct
engaged
Ferguson
Pump,
v.
Inc. v.
Town
harmful and
unlawful.
Wallace Diteman
(1978), Mont.,
915, 921,
35 St.Rep.
Miller Fox
824, 831;
(1977),
Mont.,
34 St.Rep.
Railway Company
Cashin v. Northern Pacific
1367;
96 Mont.
“’Malice-in-law’ is implied where the defendant’s conduct is unjustifiable.” un-
Here, arguably conduct Maynard’s Propp water to failed to in that they intentionally provide justifiable are actions, if believed jury, farm. Their Dvoraks’ to liability them subjecting constitute violation sufficient to damages. for punitive District that the alleging have
The Dvoraks cross-appealed, award damage striking punitive committed error by Court but we contentions several They present the District. against law provided whether Montana need discuss only *7 the time this action arose. immunity at governmental 1974, the summer of in and is limited to This action arose 1972 Mon The by parties. was both stipulated a fact that II: 18, in Section Article Constitution provides tana cities, state, counties, The 18. to suit. subject “Section State have no entities shall all local towns, governmental other or property, except from suit for immunity injury person each law % vote of provided by as specifically house of the legislature.” state and for certain provide immunity
The did not legislature 2-9-104 and sections until it enacted entities governmental to this ac- do not MCA, apply in 1977. These statutes 1-2-109,MCA Section retroactively. cannot be applied tion provides: in
“When laws retroactive. No law contained expressly statutes of Montana is unless so retroactive declared.” by striking punitive
The District Court erred the award of damages against Huntley Project Irrigation District.
Reversed and remanded for new trial. concur. SHEEHY,
JUSTICES SHEA and WEBER dissenting: DALY JUSTICE respectfully
I dissent. majority manner in which the was holds that the 25-7-204,MCA, selected violated sections 25-7-202and thereby abridged rights to a fair the District’s fundamental jury. impartial majority upon relies v. District (1959), County Silver 348 P.2d Court, Bow Mont. (1938), Ledger 143; 352; v. MacKenzie 107 Mont. Fitzpatrick 174 Mont. and State v. necessity
While each cases in of these does fact discuss the statutory procedures a District Court to follow the when selecting jury, important there are some distinctions be- present tween the facts in the in the cases case and those by majority. relied County supra, Court, Bow, In State v. District Silver
trial failed to followthe for selec- ting jury slips paper, venire when he drew which were jurors, represented prospective numbered and slips paper separate black box. The were not enclosed capsules. The failure was to follow this very day, any jury challenged next before counsel on actually impaneled. This Court held: necessarily involved, of the individual “It is not system procedures the selection but rather the entire timely showing protected, which must be and when a this Court we would be remiss our duties before pro- permitted we material deviation or from the
176 added.) legislature.” (Emphasis spelled 348 out cedures 146. P.2d at § general Juñes, 175at as set out in 50 C.J.S. rule “Objec- objection by stating,
emphasizes an the timeliness of summoning drawing irregularities or tions because of jury impaneled jury sworn, be made before the should ordinarily are available after verdict on if made and not so Steen, v. See, a new trial.” State a motion arrest for objection P. 499. case no was 29 158 In this Id. had been until one week after the verdict made counsel timely, delayed objection be This cannot considered entered. begs have ob- it as to whether counsel would way. jected gone had the verdict the other majority agrees, that counsel contends, The District and the jury impaneling improper method of did not discover the They Ledger MacKenzie, v. a after the cite until week trial. argument irregularities supra, support in selec- jury objected panel has been can be to after verdict tion of holding misinterpretation Ledger. This is a entered. party Ledger general rule that a who fails to states the impaneling challenge object irregularity in the waives discussing jury. Court, 352. This when P.2d at timely objection “knowledge” necessary held: knowledge, means and while it “Counsel had the drawing were not true that the fact and manner of the personally, means of nevertheless such home to them knowledge therefore, cases command, were at their these court.” 85 P.2d at do not come within the rule of the Missouri knowledge”, he “means of Here, counsel also had the jury impaneled. merely anytime, It ask, had to at how the imagine that the was not im- that, is hard to counsel felt partial after the trial, he would wait until week at the time of objecting impaneling. verdict before Fitzpatrick, supra, a reversal that was bas was not pro questionable selection ed nature of District the Thirteenth Judicial cedure. It was a reminder to comply statutes. with the selection that it shall use and initially “[w]e matter was not that this said, Court stated This properly appeal, import raised on but it is of sufficient to war- guidance.” rant a full discussion for future at 389. Fitzpatrick, jurors Here, as in the selection of was not in compliance total with sections 25-7-202 MCA. *9 objection timely However, the was not and, therefore, should not the basis aof reversal. Further, there jury hearing has been anything no indication the the case was impartial. but fair and