                                        No. 12290

         I N THE SUPREME COURT OF THE STATE OF M N A A
                                                OTN

                                            1973



STEVE J . LISS,

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

         -vs   -
GEORGE KREITEL e t a l ,

                                Defendants and Respondents.



Appeal from:           D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                                                      .
                       Honorable A l f r e d B Coate, Judge p r e s i d i n g .

Counsel o f Record :

      For A p p e l l a n t :

               Gary E. Wilcox a r g u e d , B i l l i n g s , Montana.

      F o r Respondents:

               Lucas , J a r d i n e and Monaghan, Miles C i t y , Montana.
               Thomas M. Monaghan a r g u e d , Miles C i t y , Montana.



                                                  Submitted:           A p r i l 26, 1973

                                                      Decided :      MfiY   -4
F i l e d : MAY    - 4 19f3


                                                        Clerk
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
        This personal injury action was tried in Ekalaka,
Montana, in February 1972, with the jury returning a verdict
in favor of defendant George Kreitel.   Judgment in favor of
defendant was subsequently entered by the district court, follow-
ed by a motion for a new trial which was argued and briefed to
the district court.   The district court denied the motion for a
new trial and this appeal by plaintiff, Steve Liss, resulted.
        Steve Liss was injured on December 24, 1969 while in
the employment of defendant, George Kreitel, who was engaged in
well-digging operations in Carter County, Montana.   Liss suffer-
ed severe damage to his vascular and muscular system, finally
resulting in the amputation of the plaintiff's left arm.
        Counsel for the plaintiff contends that during the selec-
tion of the jury he voir dired the prospective jurors as to any
possible acquaintance with the Kreitel family and that Mrs. Patty
Hendricks did not indicate that she had been acquainted with any
of the Kreitel family.
       After the first day of trial, juror Patty Hendricks
approached counsel for plaintiff and requested to talk to him.
Counsel refused to talk to her and indicated to her that she
should address any questions she had to the court.   She did so
and before the start of the second day of trial a hearing was
held in chambers between counsel, the court and Mrs. Hendricks.
       We digress here to note that the record on appeal in this
case consists of five pages covering the hearing in chambers.
Absent a complete record of the voir dire this Court cannot ex-
amine into matters not appearing in the record but we proceed
herein largely on the basis of oral assertions by counsel.
        It appears that in chambers, during the course of the
hearing, Mrs. Hendricks indicated that she was acquainted with
Veronica Kreitel, a daughter of defendant, whose name was then
Sikorski, and had neglected to report such acquaintance during
voir dire examination.
        Counsel for Liss at that time indicated that he would
have challenged the prospective juror on voir dire had this
disclosure been made and he at that time entered a challenge
against seating Mrs. Patty Hendricks on the panel.
        The court was of the opinion that once the jury was
passed for cause, counsel was precluded from any challenges.
Upon questioning by plaintiff's counsel the court did indicate
that counsel would not be precluded from such a challenge if
the prospective jurors were under oath and had committed per-
jury.
        The court denied counsel's objection to the juror and
ordered that she be allowed to sit on the jury panel during the
course of the trial.
        On February 22, 1972, plaintiff, through his counsel,
filed a motion for a new trial and briefs were submitted by
counsel for the parties.   Oral arguments for a new trial were
held and respective counsel were given additional time to file
memorandums, after which the motion for a new trial was denied
on March 10, 1972.
        The issues in this case can be stated in general terms
as to whether the lower court erred in overruling plaintiff's
motion to replace juror Patty Hendricks or specifically as to
whether plaintiff should have been allowed an additional peremp-
tory challenge and was, therefore, denied his right to a fair
trial before a fair and impartial jury because of the alleged
withholding of information upon voir dire examination.
        This Court appreciates the capable argument of counsel
for plaintiff; however, we are not able to agree with his
contentions.          The plaintiff contends to this Court that juror
Patty Hendricks had a state of mind that would be prejudicial
to him.    In regard to the state of mind of a juror and the dis-
cretion of the district court in passing on the state of mind
of a juror, this Court, in State v. Russell, 73 Mont. 240, 249,
235 P. 712, has stated:
          "The examination of a juror on his voir dire
          is no more nor less than the taking of testi-
          mony on the issues raised as to his qualifi-
          cations to serve in the case before the court.
          (Citations omitted.) The determination must
          be left largely to the sound discretion of the
          trial court (Citations omitted.); and, in deter-
          mining the question, the trial court, as in
          passing upon any other question of fact estab-
          lished by oral testimony, has the advantage of
          observing the witness on the stand, his demeanor
          and candor, or lack of candor, and a review of
          the court's rulings and findings should be
          governed by the same rules as in reviewing any
          other findings and judgment based thereon. They
          should not be set aside unless error is manifest,
          or there is shown a clear abuse of discretion.
          * *   *I'




          We have reaffirmed this position in Watson v. City of
Bozeman, 117 Mont. 5, 156 P.2d 178, and again in the case of
State v. Borchert, 156 Mont. 315, 320, 479 P.2d 454, wherein
the following is stated:
          "Defendant's second specification of error is
          that certain jurors should have been disquali-
          fied upon challenge for cause. There is no
          transcript of the objectionable portion of the
          voir dire transmitted to this Court, only an
          affidavit of the defendant's attorney. In this
          matter we wish to affirm our holding in Watson
          v. City of Bozeman, 117 Mont. 5, 156 P.2d 178,
          that the trial court is in a better position to
          judge the prejudice of jurors and its findings
          should not be set aside unless the 'error is
          manifest, or there is shown a clear abuse of
          discretion.' Here, no such error or abuse of
          discretion has been shown."
          Appellant's brief refers to many cases, but it cites
only one Montana decision, that is State v. Brooks, 57 Mont. 480,
188 P. 942.      The important distinction between that case and the
instant case is the fact that this Court had a record of the
voir dire examination of the jurors upon which to decide
whether the district court had been correct in its rulings.
The voir dire record was reviewed and this Court finally
summarized the mental attitude of the juror as gained from a
review of the record in this fashion in Brooks at page 489:
         "'If I am selected as a juror to try this case,
         I will give the defeadant a fair and impartial
         trial and find him guilty.'"
         To sustain his position plaintiff contends that juror
Patty Hendricks withheld information, but the comments of the
district court in the record show that the district court did
not believe that juror Patty Hendricks had ever been asked any
questions concerning her knowledge of the Kreitel daughters.
         Counsel for Kreitel interpreted the actions of juror Patty
Hendricks in coming to the court as showing that she desired to
be a fair and impartial juror in the case.   She was brought be-
fore-thedistrict court, in chambers, and questioned concerning
any misunderstanding that might have taken place in the voir
dire.   Liss, through his counsel, was given ample opportunity
to show that the juror would be prejudiced in fact and to show
that he was entitled to a challenge for cause.   This he was not
able to do.
         There is no record showing that the district court com-
mitted error in making this decision to allow juror Patty Hend-
ricks to serve.
                       the
         The ruling of/district court allowing juror Patty Hend-
ricks to serve was within     court's discretion
         The judgment is
ld   ustice Frank I. Haswell specially concurring:
          I concur in the result.
          In my view, no justiciable issue is presented for
review in this case and this appeal should be summarily dis-
missed.   We have no record before us indicating what questions
were asked the prospective juror or what her answers were.
Additionally, a substantial and material factual dispute as to
what occurred during the process of jury selection is apparent
from the briefs and oral argument of counsel. Absent a record
of what occurred, no issue is presented and no review is possible.



                                    Associate Justice
