                                                     NO. 85-147
                  IN THE SUPREHE COURT OF THE STATE OF MONTANA
                                                          1986




ALICE EASTERDAY,
                       Plaintiff and Appellant,
         -vs-
CHAR-LES R. CANTY, M.D.,
                       Defendant and Respondent.




APPEAL FROM:           District Court of the Second Judicial District,
                       In and for the County of Silver BOW,
                       The Honorable Plark P. Sullivan, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                       Rossbach               &   Whiston; William A. Rossbach, Missoula,
                       Montana
                           \   I
                           \ t lL L I * M J          ,     ,      I      ,   7          1

         For Respondent :
                       Poore, Roth & Robinson; Urban L. Roth, Butte,
                       Montana
                                           -R-i&a rd- Ranney , - M-is oula.,
                       Wi.~iams--La~?--Firm;-                       s
                       Montana




                                                          Submitted on Briefs: Oct. 10, 1985
                                                                      Decided: January 16, 1986


Filed:   ,iA(\l   1   ij       1986


                                                  Pfll#
                                                          Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

        In the proceedings below, Alice Easterday (hereinafter
Easterday) brought this action to recover damages for medical
malpractice     allegedly      committed by        Dr.   Charles    R.   Canty
(hereinafter Dr. Canty).             The District Court of the Second
J-udicial District, Silver Bow County, sitting with a jury,
the Honorable Mark P. Sullivan presiding, found for Dr. Canty
on the issue of liability.            Easterday timely moved for a new
trial     and   that   motion,       after    a    hearing,   was    denied.
Easterday now appeals from both the jury verdict in favor of
Dr. Canty and the District Court's order denying her motion
for a new trial.         We affirm the judgment of the District
Court entered in favor of Dr. Canty and its order denying
Easterday's motion for a new trial.
        In August of 1979, Easterday filed a complaint against
Dr. Canty and Dr. John Davidson (hereinafter Dr. Davidson)                   .
The complaint alleged that the two doctors had committed.
medical malpractice by failing to properly diagnose and trea-t
Easterday's genetic bone disorder.                It should be noted that
Easterday was a minor at the time of filing suit and her
original complaint was amended to provide for her parents as
plaintiffs in their capacity as guardians.                  Upon obtaining
majority, Easterday then pursued the suit in her own name.
        Three   days   prior    to     trial, in     September of        1984,
Easterday voluntarily          stipulated to the dismissal of Dr.
Davidson from the suit.              Accordingly, the District Court
entered its order of dismissal.              On the same day, Easterday
also filed a motion in limine requesting that there be no
mention    at   the    trial    of    the    compromise    and     settlement
agreement regarding Dr. Davidson.
         On the first day of trial, counsel for both parties
argued before the trial court Easterday's motion in limine
regarding Dr. Davidson.            Easterday's counsel moved that the
trial court exclude any mention of Dr. Davidson's dismissal
from the suit, and that the case be retitled "Easterday v.
Canty" with no reference to Dr. Davidson's former presence in
the suit.        Dr. Canty's counsel agreed that Dr. Davidson's
name should be taken off the title of the case, but argued
that evidence of Dr. Davidson's former presence in the suit
was admissible.        After hea.ring the argument, the trial court
did not immediately rule on the matter, but stated it would
be "taken under advisement and see how it develops."
      At trial, before the trial court had                      ruled on the
motion     jn
            .     limine,    Dr.     Canty's      counsel    cross-examined
Easterday's mother          and    specifically     asked    her    about the
charges originally brought against Dr. Davidson.                   Easterday's
counsel     immediately      objected.      The   trial     court   at    first
overruled       the   objection     and   allowed    the    questioning      to
continue, but very shortly thereafter sustained an objection
as to the relevance of this line of questioning regarding Dr.
Davidson.        After   the trial court ruled that no                   further
inquiry would be allowed regarding the allegations against
Dr. Davidson, Dr. Canty's counsel did not agaj-n raise the
subject during the remainder of the trial.                         Easterday's
counsel,     however,       during    his      redirect     examination      of
Easterday's      mother,     explored     at    length    the    decision    to
dismiss Dr. Davidson as a party-defendant.
      The trial subsequently ran its course and the jury
returned its verdict in favor of Dr. Canty on the issue of
liability.      Easterday filed her motion for a new trial, which
was denied by the trial court.
        Attached to Easterday's motion for a new trial were
several affidavits.        Other affidavits were later filed by Dr.
Canty's counsel.          These affidavits concerned the issue of
improper       external    information      which    allegedly      had   been
received by certain jury members during the course of the
trial.     The contents of these affidavits basically presented
conflicting      versions    of    the    conduct     of   jurors     Kathleen
Kissock    and    Shirley Ablonczy.           The pertinent       affidavits
provided in relevant part as follows:
         (1) Affidavit of juror Bonnie Handcock:                 This juror
stated that juror Ablonczy had told her that while she (juror
Ablonczy) was at the beauty salon, during a recess in the
trial, she was told by a hairdresser that Easterday's mother
had called the hairdresser complaining about a haircut and
had   threatened     to    sue    the    hairdresser over       it.       Juror
Ablonczy told juror Handcock that she took this information
as proof that the parents of Easterday were out to sue
anyone.
         (2)   Affidavit    of    juror     Ablonczy:      Juror      Ablonczy
admitted overhearing a conversation between a hairdresser and
ari~therpatron that Easterday's mother had threatened to sue
the hairdresser, but she stated that she totally ignored
these comments in making her deliberations in the insta.nt
case.
         (3)   Affidavit     of     John      Whiston       (associate      of
Easterday's counsel):        Mr. Whiston stated that juror Kissock
informed him that she was told by a co-worker (allegedly
juror Ablonczy) , during a recess in the trial, that the
co-worker      thought     the    parents    of     Easterday    were     suing
everyone because the co-worker knew that Easterday's parents
were threatening to sue a hairdresser.
      (4) Affidavit of juror Kissock:        Juror Kissock did not
specifically deny the allegations made by John Whiston in his
affidavit, but    she    insisted   that   absolutely   no   outside
influence affected her deliberations in the instant case.
      The appellant, Easterday, presents the following two
issues for review by this Court:
      (1) Whether    the   evidence   of    juror   misconduct   was
prejudicial to the appellant and requires a new trial?
      (2) Whether the introduction by Dr. Canty's counsel of
evidence concerning Dr. Davidson was an irregularity in the
proceedings which deprived the appellant of a fair trial?
      With regard to the first issue raised by Easterday, we
hold the trial court did not abuse its discretion in denying
Easterday's motion for a new trial.        In cases where a motion
for a new trial is predicated upon an allegation of juror
misconduct, this Court has applied a stringent standard of
review.    In Schmoyer v. Bourdeau (1966), 148 Mont. 340, 343,
420 P.2d   316, 317, this Court developed that standard as
follows:
           We hold that once the District Court has
           considered the matter (jury misconduct) ,
           however it is raised, whether on a
           question of mistrial or motion for a new
           trial this court will not lightly disturb
           that ruling. To overthrow it this court
           must be shown by evidence that is clear,
           convincing, and practically free from
           doubt, of the error of the trial court's
           ruling.
Contrary to the argument presented by Easterday, the above
standard is still the general rule of this Court where jury
misconduct is alleged.
      Applying the above standard to the instant case, we
find no evidence whatsoever that indicates the trial court
erred in denying Easterday' s motion for a new trial.         Judge
Sullivan presided throughout the eight-day trial and became
familiar with the trial jurors involved.         He also handled the
hearing on Easterday's motion for a new trial and became
familiar with the affidavits, memoranda, and oral arguments
presented by the parties.            The record shows the subject
affidavits presented      to   the    trial   court   (many of which
contained    second-hand hearsay)      indicate that        the   alleged
juror misconduct did not affect a material issue in dispute
and   that   Easterday   was   probably   not   prejudiced        by   such
conduct.      In short, Judge Sullivan's familiarity with the
trial and post-trial activities placed him in the unique
position to thoroughly evalua-te the respective positions of
Easterday and Dr. Canty with regard to the alleged juror
misconduct.      Judge   Sullivan      considered     the   information
presented to him and ruled that Easterday's motion for a new
trial was not meritorious.           We find no violation of the
standard set forth in Schmoyer.
      The second issue raised by Easterday contends that the
reference by Dr. Canty's counsel to the prior presence of Dr.
Davidson in the lawsuit was inflammatory and prejudicial and
requires granting her a new trial.        We disagree.
      As set out in the facts section of this opinion, Dr.
Davidson was one of the original defendants in this lawsuit.
Shortly before trial, Easterday, for reasons not explained,
entered into a stipulation of dismissal with Dr. Davidson.
Easterday then filed a motion in limine asking that any
reference to the "settlement and compromise" involving Dr.
Davidson he excluded at trial.            Counsel for both parties
agreed that the caption of the case should be changed to
reflect the dismissal of Dr. Davidson, but were unable to
agree on whether     any mention of Dr.         Davidson should be
excluded at trial.       The trial judge then took the motion
under advisement, to see how the trial developed.
         At   the   commencement      of    his   cross-examination       of
Easterday's mother, counsel for Dr. Canty initially avoided
any    reference to        Dr.   Davidson's   former presence       in the
lawsuit.       However, after a few minutes of questioning, Dr.
Canty's counsel brought to the jury's attention the fact that
Dr. Davidson had previously been a defendant in the action.
Easterday contends that although Dr. Canty's examination of
her mother on this subject was very brief, the cat was out of
the bag and her right to a fair trial was damaged beyond
repair.
       We disagree with Easterday's contentions under this
issue.        Easterday contends that her motion in limine to
exclude any mention of Dr. Davidson at trial was ba.sed on
Rule 408 of the Montana Rules of Evidence                      (evidence of
compromises or offers to compromise are inadmissible to prove
liability for or invalidity of a claim).               Easterday correctly
points out that the policy behind this rule is to encourage
compromise and settl-ement between parties.               However, in the
instant case, we find no evidence in the record that Dr.
Canty's counsel introduced, or attempted to introduce, any
evidence of Easterday's settlement with Dr. Davidson.                   Dr.
Canty's counsel only brought to the jury's attention the fact
that Dr. Davidson had also been charged in the original
complaint.       F e see no violation of the provisions of Rule
                  J
408.
         It   has   long    been    the    rule   in    this    state   that
party-defendant's may introduce into evidence the allegations
set forth in a party-plaintiff's complaint.               In Fox v. Fifth
West, Inc. (1969), 153 Mont. 95, 100, 454 P.2d 612, 615, this
Court developed the following general rule:
              We find too that the court erred in not
              allowing  the appellant to use the
              original complaint to cross-examine the
             respondent on certain admissions of the
             respondent.   The trial court took the
             position that because of the pre-trial
             order the allegations of the complaint
             had been superseded and the complaint was
             no longer relevant. Clearly it was error
             for it has been this Court's position
                                                -


             since Johnson - Butte - Superior
                             v.          and
             Comer .
             L   L
                     Com~anv (citation omitted), that
                       *.
             the opposite party is entitled to
             introduce into - evidence    inconsistent
             pleadings relating to the same issue for
             whatever the jury might find it worth in
             arriving at the truth of the controversy.
See also McDonald v. Peters (1954), 128 Mont. 241, 272 ~ . 2 d
730.   Therefore, under this general rule, the allegations set
forth in Easterday's complaint charging Dr. Davidson with
malpra-ctice are relevant and admissible.           Consequently, Dr.
Canty's   counsel     limited   cross-examination of        Easterday's
mother establishing the fact that Dr. Davidson had also been
charged in the original complaint was proper.
       The    judgment   of   the   District Court    and    its order
denying the motion for a new trial are affirmed.




We concurs
                  ,
                  P
