*1 SANDERS, RICHARD SANDERS ANNASTELLE Plain HAGGIN LIVESTOCK MOUNT Respondents, tiffs v. COMPANY, Appel corporation, a Montana Defendant lant. No. 12060.
Submitted
June
1972.
Aug. 21,
Decided
1972.
Knight, Mackay, (argued), & Dahood, Dahood Wade J. M. McLean, David (argued), Mc- McKeon & John McKeon, L. Keon, (argued), Anaconda, plaintiffs-respondents. Opinion
MR. JUSTICE CASTLES delivered Court. appeal judgment
This is an from a district court judicial district, County. Lodge third Deer re- damages turned verdict in favor of and awarded *3 $96,140. a the sum of Defendant trial moved the court for judgment notwithstanding verdict; new and for the both appeals motions were denied the trial court. Defendant judgment. the from early May 1969, Haggin
In defendant Mount Livestock Company approximately Angus owned 600-850 of Black head pasture pastured which were in a Deer cattle fenced in the Lodge Valley between Galen and the Anaconda, Montana in general proximity Highway highway of Montana 273. No. This known Lost Creek Highway is also as the or the Old Galen pastured which Road. The enclosure in the cattle were throughout to the trial as “Peterson Place”. referred the days May Hag- 8 May 10, 1969, the three to On Mount being two gin groups, attempt the cattle into no divided keep respective calves, to the cows with their made then and group each from the Peterson moved Place down the Lost Creek Highway, approximately three-quarters one-half mile, of a “Poor the “Swamp Pasture” or the pasture known as
to a Farm Pasture”. David Baustadt, cowboys,
Three James Nolan and Jim herding Martz, during who the had worked trial, operation employed but were elsewhere at time the the herding. They testified as to the facts established operation days. days, May had taken three The first two 9, driven to each the two halves of the herd were occurred, “spill 9, Friday, May Poor Farm On back” Pasture. a i.e., some of the turned around at the cattle entrance they being moved, Poor Farm which were Pasture to they they up back the road to the Peterson Place ran where pastured. Saturday, May 10, On originally had been strays picked up cowboys area returned pasture or had had either left in the Peterson Place been cattle “spilled pasture. These back” and returned to Farm Pasture. driven or hauled to the Poor were either Barkell, Christie evening May Jr., Rick On the planned years age, Sanders, who was seventeen attend Ana- Modesty They birthday party in Gulch area. left 4:00 approximately Motland together with Norman at conda they gophers to hunt p.m. o :00 Their intention was before They party was to held. on to area where the be went Modesty approximately at 8:00 Gulch area arrived at way. time party During under p.m., 9 :00 where They they keg drank party both some beer. they at the were party approximately a.m. until 12:30 or 1:00 remained pro- Returning home, Rick Barkell and Christie Sanders Highway 273 on a different road than ceded to Montana Barkell, going party. Suddenly had traveled one truck, driving pickup close very noticed cow who was *4 truck-length vehicle. cow front of his The was to half in the truck-length him, moving and a front across to Barkell, his lane traffic. after attempting into road point pickup hit it. At the cow, around the swerve pit left of np tbe in a borrow to to roll and ended started outside ground lying on the himself highway. Barkell found himself foot. He freed with truck on his pickup cab behind him. lying Christie, who was looked around and then still and he told her to lie name he She called his ran accident, left the scene Barkell for assistance. went he finding help and none Farm to seek to the Poor down eventually caught into Anaconda. a ride acci- investigated the Steiner
Highway Patrolman William 3:00 approximately 2:30 at He scene arrived dent. Sanders. body Christie of the deceased a.m. and discovered investigation ambulance, began calling he his an After day. following into the continued
The cow Angus that was struck was a Black owned mature Haggin Company. parents the Mount Plaintiffs, Livestock Sanders, negligence Christie contend the of the Mount Haggin Company proximate Livestock was cause daughter’s death. presents
Defendant appeal. several issues on The first issue contends was entitled to a directed verdict or in judgment notwithstanding alternative for a verdict, these reasons:
A. had duty Defendant owed no fence the cow which highway; wandered onto the support
B. The evidence was insufficient to the verdict judgment; or jury improperly negligent herd-
C. was instructed on ing damages. agree
We cannot defendant’s contentions prima the first issue. Plaintiffs established a facie case jury right duty had a to examine the evidence and hear of the witnesses. Sufficient brought prima before to establish a facie case negligence; in refus consequently, the court did not err ing grant Testimony introduced motions. defendant’s
78 man- negligent herding to in as whether or was done a jury testimony existed, ner. Conflicts in the bnt the fact. the ultimate finder of range dispute open will that Montana an
No one
is
every
many
But,
ruled.
state. This Court has
times so
as
exception
exceptions
law,
rule of
definite
do exist. The
in
question
open range
in
are
rule exists when the animals
exception
charge
in Jenkins
of herders. This Court stated this
P.2d
Valley
Inc.,
463, 465,
151
443
v.
Garden Ranch
Mont.
278,
753, 754, citing
Montgomery Gehring, 145 Mont.
from
v.
283,
“ releasing ‘One his a livestock onto lands has where he right to do duty entering so is under no to restrain them from another’s unenclosed land. Such livestock re- owner is not sponsible damages entry occasioned of live- his stock on such unfenced through following land their natural instincts. exception this, course, is inten- willful tional herding or driving livestock onto another’s unfenced ” land or placing them trespass so near that is bound to occur.’ (Emphasis supplied)
In Bartsch v. Company, 405, Irvine 149 Mont. plainly P.2d the Court will indicated that if animal an is fully or intentionally right-of-way highway driven onto the duty created, negligence. is the breach of which constitutes Here, presented clearly evidence indicates Haggin that Mount may willfully, intentionally have deliberately upon highway right-of-way driven the animals escaped and left them there once from control had nothing the herders. There is in record indicate that action taken warn motorists of the hazard may highway. have been created In case, duty may been constituting negligence, have violated allowing go trial court was correct in it to final determination. appeal issue on
Defendant’s second is whether or not refusing to exclude the the trial court erred disclosed, plaintiffs’ identity had not been witnesses whose such despite interrogatories requesting identity. findWe refusal was error. accident physical
A basic fact this case was Deer which took Sanders occurred the life Christie Lodge Valley Farm”, near the old “Poor and that defendant through adja- past farm, an had moved a herd of cattle *6 fact gate, shortly elementary accident. cent before the This they began in- plaintiffs’ counsel soon after was known to vestigation of the case. subsequently
Plaintiffs complaint alleging de- filed guilty fendant oper- of negligently conducting herding Thereafter, ation which daughter. caused the death of their discovery plaintiffs initiated counsel for and defend- ant. time, private At plaintiffs’ the same employed a counsel investigator to possible interview witnesses or witnesses the area where the accident occurred. investigator
About one month accident, after the inter- Doug viewed Ethel Davis, couple at a married who live key the old “Poor Farm” subsequently and who became plaintiffs. police witnesses for officer investigator, regularly employed by city Anaconda, interviewed They again Ethel and two or later. three months related to him they subsequently gave the information the trial. investigative plaintiffs’ coun- activity by
Months after this sel, inter- propounded counsel for defendant and submitted rogatories requested and their counsel which alia, following inter information: addresses, name, NO. 59:
“INTERROGATORY Give the numbers, places employment, telephone, home and business capacities job titles and last known whereabouts of: person Any you, your agents, employees “a. known to or before, attorneys at the time of or who witnessed just after accident, its or was occurrence in its * [*] vicinity ad- 60: What is the name “INTERROGATORY NO. facts person knowledge of or more who has one dress each of: you your allegations base or circumstances actually Negligence Defendant, but who did “a. accident; see the
«* # [*] toor accident Any “c. other matters which relate damages or causation.” any persons made 61: NO. Have
“INTERROGATORY otherwise, being interviewed statements, while written or attorneys, including your behalf, by you your questioned attor- representatives your agents or adjuster, insurance complained of?” accident neys, connection statement so, each 62: If NO. “INTERROGATORY indicate: relationship you occupation address, name,
“a. The it; taking person making: “b. The date of place making;
“e. The * # *7 signed unsigned; *.” “d. Whether or known name, 63: last “INTERROGATORY NO. What is the person present whereabouts, known, if whom address, of each attorneys, your behalf, including you anyone acting or in persons, or be- agents, adjusters, or other knows insurance knowledge any of the conditions to have relevant lieves immediately prior to, at, existing or of the accident the scene after the same.” Ethel and Davis were listed names of
The These quoted interrogatories. given to the above answers interviewed, investigator witnesses, discovered and whom the interrogatories scope of answers to within the fell subsequently defendant, submitted to plaintiffs were: Doug Davis Ethel or “knowledge or facts
1. one more Persons who had of allegations of upon plaintiffs which” base circumstances 60). Negligence No. (Interrogatory “a. of the Defendant”. or “knowledge facts of one or more 2. Persons who had allegations plaintiffs base their circumstances which” * * * Any of “e. other matters which the accident relate to 60). or (Interrogatory causation.” No. other- any statements, written or 3. had Persons who “made * * * agents questioned by
wise, being while or interviewed * * (Inter- [plaintiffs’] attorneys representatives or of rogatory 61). No. plaintiffs anyone acting in [their] “or
4. Persons whom behalf, including attorneys, agents [*] [*] [*] or other per- knowledge of relevant any sons, knows or believes to have to, prior existing conditions at the scene of accident 63). No. immediately (Interrogatory after same.” at, or these investigator in the answers The was not mentioned instance, person knew, who interrogatories aas inter- accident”, although he “conditions at the scene people photographs. and took viewed
Then, September trial 10, 1970, days some before the began, propounded interrogatories supplementary plaintiffs. They requested plaintiffs all of the list witnesses intended to call at trial and the names persons “all from whom attor- statements been have taken agents, neys, investigators persons other on behalf specify whether the statement is written person taking oral the name of the such statement.” Plaintiffs, required although answer M.R.Civ.P., to Rule interrogatories respond. 20 days, those within failed to investigation Thus, despite foregoing account of the procedures by Ethel discovery identity counsel the days Davis was not disclosed until four The before the trial. identity husband, Doug Davis, her was not disclosed morning began until the defense counsel trial. *8 before Thursday Monday morning, October 1970. On trial, exchanged witnesses for defendant a list of counsel plaintiffs. for first with counsel for At that time and identity Ethel When defense- time, the Davis was disclosed. counsel for Ethel asked the address of witness Davis he (Deer val- Lodge) informed she lived “somewhere out ley.” prior plain- disclosure, Some hours for counsel subpoena directing tiffs had issued a for Ethel Davis her to appear plaintiffs. testify Yet, and a as witness a few plain- later, hours counsel for the defense was advised that tiffs’ counsel did not know where she lived.
The record shows the Doug of Ethel and complete came as a surprise counsel to defendant. Defense recording rely upon were forced to transcript tape of a plaintiffs taken subsequently, counsel for re- then, and cording who taken two members of their own law firm knowledge background had no Ethel of the case. Neither deposed by Davis had been counsel interviewed or representing prior appearance on to their actual the witness stand. justified
This required situation and the exclusion of testimony. witnesses’ A motion to exclude disallow and testimony of ela- made, supported, these witnesses was complete borated with a statement of surrounding facts. The trial court in error sanction refuse this proper failure to make inter- responses and accurate rogatories designed exactly were to elicit the information which was withheld. interrogatories propounded plaintiffs continu- were
ing in specifically nature and requested stated the information their attorneys, facts also extended to within knowledge parties, repre- “agents sentatives”. As the at the trial and the affidavits by plaintiffs’ submitted clearly counsel show, investigator agent anwas of the law firm Knight, Mackay, & Dahood *9 law investigation accident for that and conducted an of the she verified, testimony, own that firm. Mrs. Davis in her the investigator story she testified to at had told the the same cru- testimony trial. Plaintiffs’ counsel considered her most case, they argued cial to their to the that her testi- mony bearing question Mount had a on the of whether direct operations. Haggin negligent herding conducted Babcock, correctly Counsel for defendant cites Smith v. 81, 91, 157 1014, excluding Mont. 482 authority P.2d as for testimony. Smith, the Davis In this Court ex- held that the testimony clusion of the of a witness should been re- have quired party when the who introduced his failed supply the name of interroga- the in answer witness to an tory requested persons “names and who addresses of all any knowledge have relating or information to the accident or its cause.” Co.,
Counsel for Ry. cite Wolfe v. Northern Pac. 29, 528, Mont. 409 P.2d 534: 33, M.B.Civ.P., “Buie authorizing interrogatories the use of purposes pre-trial of discovery party,’ from ‘adverse although liberally construed to all make relevant facts avail- parties able to in possi- advance of trial and to reduce the * * * surprise bilities of advantage and unfair cannot weapon punishment become a in hands forfeiture party, of a or an instrument for avoidance a trial * * *” merits. plain- rule stated agree is valid and we Wolfe interpretation; however,
tiffs’ the Court stated: also Wolfe “In interpreting these Pro- rules Buies of Civil [Montana judg- we will judge only reverse the trial when cedure] his may materially ment rights appel- affect the substantial of the possible justice.” lant and allow miscarriage here, possible Under the facts miscarriage we believe a justice substantially rights has affected the of defendant. testimony given
From trial, readily one discerns Both Davis. Dong importance testimony of Ethel operation herding they able to observe testified were on in a cowboys it Haggin that was carried the Mount some Both negligent manner. testified and inefficient highway, refused cattle, they were down as driven “stam- pasture (Swamp) Farm and either enter Poor also They Peterson Place. peded” “spilled back” present highway on the cattle were testified believed Doug fact night of the accident. Due was unable to come had of heart he had a series attacks togo jury to judge ordered the courtroom, so taken Davis and his residence ad- immediately which is building in the Farm located Poor *10 Swamp joining Pasture area. the agrees This Court testi- defendant’s contention that the mony of plaintiffs’ the witnesses crucial case Davis was to the compelled and from jury the verdict by returned the we are testimony significant during to believe this was to the discovery procedures its proper deliberations. Since were followed, we find the trial court did in allow- commit error ing testimony the Doug of Ethel Davis. and during objections
Counsel for defendant formal made three the trial in the quashing course of the order to obtain the immediately testimony. objection The first was made at the trial: commencement the please Now, may
“MR. ROTH : it [Counsel defendant] object the court. The defendant will now additional to the by witnesses that have been Plaintiffs, listed and the use ground case, in the trial and of this on the and pre-trial for the that at the reason conference the names exchanged coun- addresses of all witnesses were to be between parties days prior least trial, at ten sel and parties. Now, your Plain- agreed honor, then, pre-trial prepare duty order, in this tiffs had a case to prepared within it supposed it wasn’t the time was to have as prepared, tbe names of these witnesses comes been and so Defendant, your complete surprise honor, at this late opportunity date, for have not had an to consult and inves- we tigate Davis, of Mrs. Ethel or the other addi- Margaret named, Harris, Jancic, tional witnesses Dick Dan or Durkin.” objection
This was overruled. objection raised Mr. Roth at the time The second testify: Mrs. Ethel Davis was about to May please
“MR. ROTH: it De- the court. now Comes fendant, Haggin Mount Livestock Company, in cause now being tried court, before this respectfully moves quash the court to disallow testimony of either of the witnesses, Ethel Davis and Davis, upon follow- ing grounds, and for following reasons: (1) that fol- lowing interrogatories propounded were 21st, November 1969, among which interrogatories were following: Interrogatory Number 59: names, Give the ad- places dresses, of employment, telephone home and business numbers, job titles, capacities, and last known where- (a) any person abouts of: known you, your agents, em- ployees, attorneys, or who witnessed the accident or was vicinity before, its of, just the time after its occurrence. Interrogatory 60: Number What is the name and address person each who knowledge has one more cir- facts of you cumstances your allegation (a) base of: *11 negligence of defendant, but who actually did not see the accident; and, further, (c) any other which matters relate accident, damages to the or to or Interrogatory causation. any persons 61: any Number Have made statements, written otherwise, being or questioned you, while interviewed or your behalf, including your or on attorneys, insurance ad- agents representatives juster, your or con- attorneys, in complained with the accident nection of. Interrogatory Num- so, If for statement, 62: each (a) name, ber indicate: person occupation, relationship you, address, and of the making; signed un- taking it; (b) (c) date of whether or last Number 63: Interrogatory name, What is the signed. present known, person address, whereabouts, if of each known including acting your attor- behalf, on you, anyone or whom adjusters, persons, or knows agents, insurance other neys, conditions knowledge, of the any relevant to have believes immed- prior at, accident, existing to, at the scene interrogatories (2) that these iately after the same. answers to 23, 1970, January on but that the defendant were received foregoing interrogatories to the the answers nowhere regard existence or where- information there Doug identity of (3) Davis. that the of Ethel Davis or abouts and Dong plaintiffs, and was known to the Davis Davis Ethel accident, Mr. attorneys, through month after one Jancic, agent and employee attorneys, an and Daniel of said (4) accident. again four after the counsel for the months Daniel Jancic, have interviewed the Mr. said employee agent attorneys and and plaintiffs, Dahood, investigated man who accident Wade J. firm, his that Mr. Jancic interviewed advised he Davis, Doug approxi- Davis, farm, Ethel saw at their Mrs. accident, approximately mately and, again, one month after the accident, inter- four months after the and that at each such things view, substantially Ethel told Mr. Jancic Davis the same McKeon, Jancic, L. “Luke” she told John and Mr. on October but, 25, 1970, submit, your we honor, very that the first time the defendant was advised of Ethel existence Thursday, 22nd, 1970, at time, October in a conversa- between Donald Eobinson tion O. L. Mr. McLean, David Eobinson asked for the address of Davis, Mrs. Ethel and was response inquiry to that advised that she lived ‘somewhere valley.’ (5) in the submit, your out we further honor, that Davis, taken recorded statements were from Ethel and given that counsel for the defendant but were not copy *12 27th, Tuesday, until October recorded statements these opportunity course, up that not an and, to time did have during people. (6) to interview of these that the either case, defendant, Urban trying of this case for the counsel the Roth, not Robinson, or, Boyd, L. would Donald C. Robert J. personally witnesses, have time to care- interview said nor to fully interrogate they these the that witnesses on statements given McKeon; to have (7) further, they had Mr. would not opportunity investigate backgrounds an to wit- of these nesses to what animosity, any, they determine if toward held Haggin Mount employees. Livestock Company, of its (8) that opportunity prepare would have an for to an deposition exhaustive (9) Mr. these witnesses. that Jancic had advised defendant, counsel for Urban Roth and Robinson, Don that the names of Ethel and Davis were given to shortly orig- Wade J. Dahood at or after the time he inally (10) them. interviewed that Montana Rules of Civil Procedure, upon which the Procedure Montana Rules of Civil patterned, require complete are full and disclosure of all in- requested formation in interrogatories propounded one by party other, respectfully and we submit court may imposed certain that sanctions where be the court spirit procedure is a there violation of the rules of discovery, respectfully for we move court such upon imposed sanction be for their counsel disregard procedure violation utter of this rule of discovery, information, and their failure to disclose this just that I have based the information submitted appropriate court, we submit that this sanction is most these circumstances.” under objection second
This was also overruled. objection third testimony Davis was made in motion Mr. Roth his for a directed verdict: Now, furthermore, your “(9) honor, we submit that quash motion Douglas of Ethel and determining court, granted,
should be verdict, should for a directed motion of Defendant’s merits Douglas Ethel and disregard completely record, previously stated grounds Davis, on the *13 respond attorneys, to failed Plaintiffs, and their is, that the disclosed interrogatories, which would have specific to before Doug months Ethel and Davis and existence of names absolutely no excuse case, that there was the trial response in Ethel and to name for their failure com- that should be interrogatories, and to directed motion for ruling on disregarded in pletely verdict.” objection third was also denied.
This record, took this it is clear that From defendant’s counsel object these every opportunity testimony. to All to the Davis trial taken, objections, though well were even denied did all that a under court. Mr. Roth counsel could do correctly testimony. the Davis circumstances exclude He objection that further hinder client’s would his believed case; appeal. This therefore, he decided raise this error on A will correct this error. new trial is ordered. Court it conclusion, necessary In we believe mention other one is being case for a trial, issue. is remanded new it Since necessary develop issue, does fully however, it merit some discussion. damages. jury
That is The returned a verdict issue possibility $96,140. strong a in the amount This Court finds amount was In is that the excessive. the record exists there that Christie Sanders no evidence would have remained graduation area from no high school; the Anaconda after was as to what plans introduced her so evidence future were school; or far as residence there was no offered evidence given family her any pecuniary had ever support that she direction; and, very motivated she evi little as to the relationship was offered her dence between her and parents. pancity damages The of evidence toas indicates strong possibility passion prompted by the verdict was prejudice; or, jury improperly instructed toas proper damages. criterion of Wyant
In v. Dunn, 181, 140 Mont. 368 P.2d recognized type Court damages universal rule that in this presented of action are first to the sound discretion of jury, then judge, reviewed the trial who must set aside modify the verdict on a motion for a new if amount just. Only the verdict is not in rare cases should a decision judge be reversed where the trial agree and the proper. present verdict is suggests factual situation strong possibility that this is such a case. this,
In wrongful Montana in a action, death such as damages under all as be may circumstances the case just may recovered; but, be be damages a verdict for must based Dahl, admissible evidence. Krohmer v. 145 Mont. *14 491, 979; 402 P.2d v. Smith, 152 170, Mont. 448 P.2d 133.
Nevertheless, though damages the amount of is sole ly province within jury given of the not jury, is carte blanche. Some upon substantial evidence must exist $96,140 predicated. which the of award can be In v. Miller Boeing Company (D.C.Mont.1965), F.Supp. Judge 245 178, Jameson, applying law, Montana concluded that a verdict $52,700 plaintiff wrongful of widow for the death of her $37,500. husband was excessive. The verdict was reduced to adopted that The court noted the Montana statute involved was quoted Co., from Maggio from California and Ure v. Bros. Cal.App.2d 490, 534, 24 75 538: P.2d
“ society, comfort, may protection ‘But while loss injury an of the statutory be element sustained bene- only ficiaries, pecuniary, sentimental, it is and not the may value of such loss be taken into consideration 90 aas Nothing can be recovered damages.
the assessment ” feelings.’ for wounded solatium Pa- Southern Dickinson v. further from quoted court The 727, 185: 183, 158 P. Co., 172 Cal. cific “ money in exact terms of possible to measure not ‘It is may have wife, surviving or child husband, which a the loss society comfort being deprived through of the sustained play reason, parent. For some spouse or the deceased provision of jury by of the to the discretion is allowed all damages may allowed as under be that such 377 section fixing just. But, in may case be circumstances rule alivays by the amount, jury is bound fundamental recovery, and the amount damage the limit is pecuniary pecuniary reasonable relation to the some must bear allowed ” supplied. also: (Emphasis See evidence.’ loss shown 93-2810,R.C.M.1947. Section judge duty commented of a court further he when and declare a verdict excessive
to review a verdict bounds conscientiously believes “that the has exceeded the Hart- Dellaripa v. propriety.” York, New New Haven & Co., Cir., noting 735. ford R. F.2d After comfort, pecuniary society, evidence as to value loss of protection companionship con- inadequate, court recovery $37,500 just excess of cluded justified.
In two recent this Court cases considered verdicts $35,000, minors, $4,000, wrongful deaths of Krohmer— Davis— but in both eases substantial evidence was introduced as damages. $96,140, In the instant case we have verdict of Krohmer, wrongful award in almost three times the for the unsupported by any earning a minor death of evidence of *15 support parents, capacity, or than damage other comfort, society, companionship, loss of etc. The amount of only upon accounted for the award can be the basis the properly instructed, (2) given improper (1) was an pecuniary argument upon compute standard oral which to society (3) value of loss of comfort, companionship, passion it by prejudice. was actuated and motivated judgment The is reversed and the cause remanded for a new trial.
MR. CHIEF JUSTICE T. MR. JAMES HARRISON and JUSTICE HARRISON, JOHN C. concur.
MR. DALY JUSTICES (dissenting) and HASWELL : We dissent. majority grant a new trial to defendant because plaintiffs
failure of to list the names and two addresses of response witnesses in pretrial interrogatories. defendant’s It is clear that this failure constituted pre- a violation of discovery rules. It equally is clear that the names of these witnesses were by plaintiff’s communicated counsel to defendant’s days counsel several trial; before witnesses’ exact given address was not only but lived valley; somewhere plaintiffs’ and that counsel furnished defendant’s tape counsel with a of the witnesses’ statements and defendant’s counsel interviewed them and transcript had a prior statements such witnesses their examination at the trial.
During the course of trial when called first of such testify, witnesses to moved exclude the grounds surprise plain- occasioned pretrial tiffs’ violation of discovery requested rules impose court to sanctions for such violation excluding testimony of such witnesses. The district court denied defend- ant’s motion in following manner:
“THE Well, COURT: I am not going impose to invoke or sanction, I because feel pretty important that this is testi- mony viewpoint. from their The sanction will imposed, not be will and the motion be denied. *16 please, your If honor
“MR. ROTH: [defendant’s counsel] statement a recorded use of may we the benefit have been transcribed witness, which has not of this that we have that opportunity to review yet, and we would like the as cross given, her and we must is before examine. will no [plaintiffs’ have
“MR. McKEON: We counsel] objection that. witness may right, done, All that be and this
“THE COURT: can all, time. If that then at another is we may be called courtroom. return right, may record show that
“THE All COURT: You session, presence jury. in again of the court is proceed. may honor, knows, counsel the court
“MR. Your as McKEON: they that have a for the have advised statement they morning Davis, Mrs. which took this Ethel which would they yet prepared transcribed, and not as been has conducting advantage have statement when like to this very Davis, of Mrs. and so would be cross examination we call Mrs. tomorrow happy morning, to wait and so particular advantage statement will of that have the at that time. if Yes, position matter, is our in this
“MR. ROTH: please. court Very well, may done, wit- “THE be and the COURT: morning. may be called tomorrow ness you, your honor, again, Thank you, ROTH: and thank “MR. Mr. McKeon.”
Following colloquy, no re- this farther continuance was quested. request day’s counsel Defendant’s received his for a delay in the examination these witnesses. These witnesses exhaustively following examined and were cross-examined the posture day. The case was submitted with- a ver- jury returned objection by out further defendant. The plaintiffs. dict for surprise
Defendant for a new trial on the basis moved The against. guarded ordinary prudence could have trial. district court motion for a new denied defendant’s majority ruling this Court has reversed this judge. grounds on which 93-5603,B.C.M.1947, forth the
Section sets *17 provides may granted. (3) for a new trial be Subsection surprised testi- moving party new trial where the the 440, 36 mony McKay, trial. In Hill Mont. offered at the v. following criteria 347, down P.345, this Court set the granting ground: a new trial on this “* * # new will be general it that a trial is the rule clearly ground when granted surprise, only on it is facts actually surprised, that shown that the movant was surprise bearing on from which had a material resulted case, mainly from that the verdict or decision resulted alleged of mov condition is not the result facts, these negligence, prompt inattention or has acted ant’s own he has ly opportunity, and claimed relief at earliest that he every reasonably sur available at the time of the used means prise remedy disaster, the result of a new probably be different.” trial will approval Morris recently in
These criteria were cited with 468, 465 827. Pulpwood Co., 154 Mont. P.2d v. Corcoran continuance may day party In our view a not secure a one cross-examination, prepare for witnesses’ permit be continuance, request a further the case to fail to objection, without further and after submitted grounds on verdict secure a new trial of sur- an adverse party seeking such circumstances trial prise. Under new every reasonably means has not used available the time surprise remedy situation, required criteria one of the particularly securing ground. a new trial This is new movant a here, judge trial denied where, has as
true trial under these circumstances. impose the judge
Additionally, the refusal nor not an of discretion here is abuse sanction of exclusion granting independent ground for a new trial. it an is