                                                 No.    82-136

                       I N THE SUPREME COURT O T E STATE O MONTANA
                                              F H         F

                                                        1983




D A GRAHAM,
 E N

                    P l a i n t i f f and A p p e l l a n t ,

       -vs-

CLARKS FORK NATIONAL EANK,

                    Defendant and Respondent.




A p p e a l from:      D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                       I n a n d f o r t h e County o f C a r b o n , The H o n o r a b l e
                       C h a r l e s Luedke, J u d g e p r e s i d i n g .


Counsel of Record:

              For Appellant:

                       Morrow, S e d i v y , O l s o n & Eck; Thomas O l s o n ,
                       Bozeman, Montana
                       Swandal, D o u g l a s s & Swandal; K e n t R . D o u g l a s s ,
                       L i v i n g s t o n , Montana

              For Respondent:

                       B r i d g e r Law O f f i c e ; J o s e p h Mudd, E r i d g e r ,
                       Montana
                       Moulton, E e l l i n g h a m , Longo & M a t h e r , B i l l i n g s ,
                       Plontana




                                                 S u b m i t t e d on E r i e f s :   April 15, 1983

                                                                     Decided:         May 1.9, 1 9 8 3



           MAY 1 9 1983



                                                 Clerk
Mr. J u s t i c e J o h n      Conway H a r r i s o n        delivered        t h e O p i n i o n of         the
Court.

       T h i s a p p e a l comes from t h e D i s t r i c t C o u r t of               the Thirteenth

J u d i c i a l District         i n and f o r        t h e County of Carbon                     Plaintiff
commenced t h i s a c t i o n s e e k i n g damages f o r c o n v e r s i o n of                      cattle.

       I n 1 9 7 8 - Dean Graham p u r c h a s e d n i n e t e e n head                 of       registered
cattle.        The c a t t l e were p a s t u r e d on l a n d owned by h i s t h e n son-

in-law,       Marvin Heyd.             Heyd a l s o owned c a t t l e ; s e c u r e d by C l a r k s
F o r k N a t i o n a l Bank,        Heyd c o u l d n o t meet h i s o b l i g a t i o n s t o t h e
bank,      consequently,            t h e bank       t o o k p o s s e s s i o n of   Heyd's          cattle,

and by m i s t a k e , a l s o t o o k G r a h a m ' s c a t t l e .        Graham a l l e g e d t h a t ,

d u r i n g t h e t i m e t h e bank had p o s s e s s i o n , h i s c a t t l e l o s t w e i g h t .
Graham a l s o a l l e g e d t h a t h i s c a t t l e were i m p r o p e r l y p a s t u r e d w i t h
b u l l s owned by Heyd,             and a s a r e s u l t he was f o r c e d t o abandon a

program of a r t i f i c i a l i n s e m i n a t i o n .
       Graham b r o u g h t         suit    against         the   bank     alleging          conversion,
s e e k i n g damages        i n excess        of     $200,000.          During        the       trial       the

c o u r t r e f u s e d G r a h a m ' s o f f e r e d t e s t i m o n y c o n c e r n i n g t h e v a l u e of
a h y p o t h e t i c a l purebred angus c a l f crop.                 Also, the court granted
t h e bank a d i r e c t e d v e r d i c t on G r a h a m ' s c l a i m of f u t u r e damages

and e x e m p l a r y damages.             The j u r y      r e t u r n e d a n award of $ 5 3 , 4 7 5 .

The D i s t r i c t    Court        set    aside      the    jury     award      as    excessive             and
g r a n t e d a new t r i a l l i m i t e d t o t h e i s s u e of damages a r i s i n g from
t h e wrongful conversion.

       Graham a p p e a l e d t o t h i s C o u r t .         T h i s Court h e l d t h a t (1) t h e
g r a n t i n g of a new t r i a l was p r o p e r , ( 2 ) on r e t r i a l , Graham s h o u l d
b e a l l o w e d t o o f f e r e v i d e n c e of f u t u r e c a l f c r o p l o s s e s , and ( 3 )
t h e c l a i m of     e x e m p l a r y damage s h o u l d be s u b m i t t e d t o t h e j u r y .
Graham v. C l a r k s Fork N a t i o n a l Bank ( 1 9 8 1 ) ,                         Mont   .   --     ,   631
P.2d     7 1 8 , 38 S t . R e p .     1140.         The c a s e was r e t r i e d and t h e                 jury
awarded Graham $ 2 , 2 0 0 a c t u a l damages p l u s c o s t s .                    Graham a p p e a l s

again.
       The a p p e l l a n t h a s r a i s e d two i s s u e s , b o t h of which stem from
e v i d e n c e which was a d m i t t e d c o n c e r n i n g M a r v i n H e y d ' s        character.
First,      appellant           argues       that      admission          of    the     evidence         was    in
c l e a r v i o l a t i o n of t h i s C o u r t ' s mandate i n o u r f i r s t o p i n i o n ; and
s e c o n d , by a d m i t t i n g t h e e v i d e n c e t h e D i s t r i c t C o u r t i g n o r e d t h e
l a w of     conversion.              The c o n t e s t e d       evidence           appears      in     several

p l a c e s t h r o u g h o u t t h e 874 p a g e t r a n s c r i p t .          Appellant points to

n i n e t e e n s p e c i f i c i n s t a n c e s where e v i d e n c e was a l l o w e d c o n c e r n i n g

Marvin Heyd's               character;        m o s t of      which       focused       on h i s l a c k of
financial responsibility.                         A p p e l l a n t c l a i m s t h a t s i n c e Heyd was

t o pasture his c a t t l e ,               and,     s i n c e Heyd was h i s s o n - i n - l a w ,            the
character         of     Heyd    was       associated         with       himself.            As    a     result,

appellant         claims        he     was       denied       a    fair        and     impartial          trial.

      Appellant          admits       that        there     never      was      an o b j e c t i o n t o       the
a d m i s s i o n of a n y of t h e c o n t e s t e d e v i d e n c e .          I n d e e d , much of t h e

evidence          was       illicited        while          appellant's          trial        counsel          was
questioning the various witnesses.                                Of t h e n i n e t e e n i n s t a n c e s of

alleged error,              t w e l v e were b r o u g h t a b o u t by t h e a p p e l l a n t him-
self.       Nonetheless,             a p p e l l a n t claims t h a t the i s s u e is p r o p e r l y

before      this        Court    via       the     "plain error"               doctrine discussed               in
Halldorson         v.       Halldorson           ( 1 9 7 7 ) , 1 7 5 Mont.       170,    573 P.2d           169,

where t h i s C o u r t h e l d t h a t a b s e n t o b j e c t i o n a t t r i a l ,              t h i s Court
may c o n s i d e r      issues       relating         to    the     fundamental          r i g h t s of       the
parties.
      The p l a i n e r r o r d o c t r i n e i s n o t a p p l i c a b l e t o t h i s c a s e .               In

- alldorson,
H                      we       elaborated            on      the        doctrine            by         stating :
              " a p p e l l a t e c o u r t s have a d u t y t o d e t e r m i n e
              w h e t h e r t h e p a r t i e s b e f o r e them h a v e b e e n
              d e n i e d s u b s t a n t i a l j u s t i c e by t h e t r i a l c o u r t ,
              and when t h a t h a s o c c u r r e d we c a n , w i t h i n o u r
              sound d i s c r e t i o n , c o n s i d e r whether t h e t r i a l
              c o u r t h a s d e p r i v e d a l i t i g a n t of a f a i r and
              i m p a r t i a l t r i a l , e v e n t h o u g h no o b j e c t i o n was
              made        to       the     conduct during              the      trial."
              H a l l d o r s o n , 1 7 5 Mont. a t 1 7 4 , 573 P.2d a t 1 7 2 .
              -

      W have c a r e f u l l y reviewed
       e                                                  the record           and see no r e a s o n t o
upset       the    verdict           and     judgment.              Appellant          was        not     denied

substantial justice.                   He    received a f a i r t r i a l , accordingly,                        we
af f irm.
W concur:
 e


                        -
  Chief J u s t i v e
Mr. Justice John C. Sheehy, dissenting:

     I dissent.
     This Court should reverse the judgment in the District
Court, and remand the cause for a new trial limited strictly
to the issue of damages.
     There have now been two district court trials of this
cause.     After the first trial, the District Court granted a
new trial, limited strictly to the issue of damages.              On
appeal, we affirmed the grant of the new trial limited to the
issue of     damages, and    specified that additional       factors
relating to damages should be consid-ered in the next trial.
When the next trial occurred, the issues were not limited to
damages.    It is on that basis that the plaintiff now appeals,
and on which the plaintiff ought to be sustained.
    When we affirmed the grant of a new trial limited to the
issue of dama.ges, that holding became the law of the case.
When the District Court disregarded the law of the case, and
expanded    the   second   trial   to   include   evidence   of   the
character of a nonparty, it abandoned the law of the case,
and the District Court should be checked in that abandonment.
     In explaining the law of the case, this Court has held:
    "The rule is well established and long adhered to
    in this state that where, upon an appeal, the
    Supreme Court, in deciding a case presented states
    in its opinion a principle or rule of law necessary
    to the decision, such pronouncement becomes the law
    of the case, and must be adhered to throughout its
    subsequent progress, both in trial court and upon
    subsequent appeals; and this although upon its
    subsequent consideration the Supreme Court may be
    clearly of opinion that the former decision is
    erroneous * * *    It is a final adjudication from
    the consequences of which this Court may not
    depart, nor the parties relieve themselves (citing
    cases) " .  Carlson v. Northern Pacific Railroad
    Company (1930), 86 Mont. 78, 281 P. 913, 914. See
    also Fiscus v. Beartooth Elec. Cooperative (1979),
    180 Mont. 434, 591 P.2d 196.
        This is a case where the bank seized Graham's cows for
another person's debts in spite of the fact that Graham's
cows carried brands which established their ownership and
which brands were disregarded by the bank when the cows were
seized.     When Graham attempted to recover his cows, the bank
refused to divulge their location and turned his cows into
pasture with 6 unregistered bulls.     Thus the bank destroyed
the breeding program that Graham had established for his
herd.     By expanding the second District Court trial, as it
did, the District Court allowed the bank to remove the "black
hat" from its head, and put it on the head of a debtor, a
factor that had no relationship to the damages sustained by
Graham.
        Contrary to what is contained in the majority opinion,
the holding of this Court in Halldorson v. Halldorson (19771,
175 Mont. 170, 573 P.2d     169, commands that we return this
cause for a proper trial limited to the issue of damages
sustained by Graham.       The verdict which the majority    is
affirming here is manifestly insufficient.
