                                No. 87-70
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1987



JOHN GURNSEY and QUENTIN MANG,
                Plaintiffs and Respondents,
       -vs-
CONKLIN COMPANY, INC., CLYDE IVERSON,
and ROBERT PLACE,
                Defendants and Appellants.




APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Ugrin, Alexander, Zadick & Slovak; Gary M. Zadick
                argued and John Alexander argued, Great Falls, Montana
       For Respondent:
                Erik B. Thueson argued, Helena, Montana
                Dennis P. Connor, Great Falls, Montana



                                  Submitted:    November 5, 1987
                                    Decided:        January 6, 1988




                                               BI
                --        k%,     Clerk
                                     d9U-w+J
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     The plaintiffs brought this multi-count action to recov-
er damages for a partial crop loss. The action was tried by
jury in the District Court for the Eighth Judicial District,
Cascade County.    Plaintiffs obtained a judgment including
$132,500 in compensatory damages and $1,000,200 in punitive
damages. We reverse and remand for retrial.
     Defendant Conklin Company, Inc. (Conklin) has raised
thirteen issues on appeal. We restate them as follows:
     1. Did the District Court err by not granting a mistri-
al as a result of the prejudicial testimony of John Gurnsey
concerning the death of his wife?
     2. Did the District Court err by allowing the introduc-
tion of evidence concerning insurance?
     3. Did the District Court err by allowing the introduc-
tion of testimony and exhibits concerning post-transaction
activity in violation of the order granting severance?
     4. Did the District Court err in allowing testimony
which contained hearsay statements attributed to non-party
independent distributors?
     5. Did the District Court err by giving a special
verdict form which 1) omitted the requirement that the jury
find "legal cause"; 2) did not require the jury to make a
finding of gross negligence, recklessness, or malice as a
prerequisite to an award of punitive damages; 3) did not
allow separate consideration of the theories of actual fraud
and constructive fraud and failed to instruct the jury prop-
erly as to constructive fraud?
     6. Did the District Court err by not allowing the iury
to compare like conduct?
     7. Did the District Court err in its instructions on
emotional distress?
     8.  Did the District Court err in its instructions on
liability for the negligent selection of an independent
contractor?
     9. Did the plaintiffs fail in their burden of proof of
punitive damages, and was the punitive damage award the
result of passion, prejudice, or other error?
    10. Did the District Court err by excluding evidence
offered by Conklin?
     The plaintiffs are Montana grain farmers. Quentin Mang
is John Gurnsey's father-in-law.    At the time this action
arose, the plaintiffs both farmed small tracts west of Great
Falls, Montana.
     The plaintiffs brought a five-count complaint against
defendants for partial failure of their 1983 wheat and barley
crops.   Plaintiffs' complaint states that defendants Clyde
Iverson and Robert Place, acting as agents for defendant
Conklin, sold them liquid fertilizer (FEAST), misrepresenting
it as a "complete" fertilizer which would greatly increase
crop yields. The complaint alleges that the plaintiffs were
unlawfully induced to join the FEAST distribution scheme and
were wrongly instructed on how to use and apply FEAST.
Plaintiffs claim they suffered crop loss and other monetary
damages as the result of defendants' breach of contract of
sale, breach of implied warranties of fitness and merchant-
ability, and breach of express warranties.    Counts two and
three of the complaint allege that in selling FEAST, the
distributors made fraudulent and negligent misrepresenta-
tions.   Count four alleges that defendants violated their
duty of good faith and fair dealing, and count five alleges
that defendants negligently instructed plaintiffs how to use
and apply FEAST.
     The court severed the bad faith claim from the other
claims.   At the two-and-one-half week jury trial on the
remaining claims, the parties presented conflicting evidence
on the contested facts. The defense was based on plaintiffs'
failure to read or follow written and laboratory instructions
on use of the fertilizer. Also, Conklin's position is that
its distributors are independent contractors, so that it is
not liable for their wrongs. The jury returned a verdict in
favor of plaintiffs.   They found Quentin Mang 38% negligent
and awarded him compensatory damages of $82,500 and punitive
damages of $500,100. They found John Gurnsey 30% negligent
and awarded him compensatory damages of $50,000 and punitive
damages of $500,100.
                               I
     Did the District Court err by not granting a mistrial as
a result of the prejudicial testimony of John Gurnsey con-
cerning the death of his wife?
     John Gurnsey's wife died during preparation of this
matter for trial.    There is no claim that her death was
caused in any way by the defendants.
     The of fending testimony came while plaintiff John
Gurnsey was on the stand. He had testified that he was 49
years of age and had daughters ages 7 and 10. He had then
testified at length about the events of 1982-83 during his
purchase and use of FEAST. His attorney then asked:

     0   When you lose a year's crop, does it just
         affect you, John?
    A     It affected me, yes.

     Q    Does it affect the people that rely on you?
     A    It certainly has.   I lost my wife.
The defense objected on the basis of relevance and prejudice
and the court admonished the jury to disregard the statement.
Apparently to allow Mr. Gurnsey time to compose himself, the
court then recessed early for lunch. Conklin's motion for a
mistrial, made in chambers, was denied.
     Conklin argues that this episode was highly prejudicial
and that, considering the amount of punitive damages awarded,
its prejudicial effect cannot be ruled out.         We agree.
Although the trial court has a great deal of discretion in
ruling on a motion for mistrial, it may be reversed if there
is a showing of abuse of discretion. Morehouse v. Ylvisaker
 (1968), 152 Mont. 57, 446 P.2d 432. The emotionally-charged
nature of this exchange can be sensed even in the transcript.
We hold that the District Court erred in failing to grant a
mistrial.
                              XI
      Did the District Court err by allowing the introduction
of evidence concerning insurance?
      As part of count one, plaintiffs' complaint alleged that
defendants misrepresented that they carried "hundreds of
thousands of dollars in insurance" which would protect plain-
tiffs from losses if FEAST did not perform as represented.
Defendant Conklin moved to strike the reference to insurance
prior to trial, but the court ruled that the issue of insur-
ance was relevant to the material issue of defendants' mis-
representations to plaintiffs. At the time of that ruling,
the claim that Conklin breached its contract was still alive.
Quentin Mang testified at trial that Clyde Iverson made the
statement about insurance during their first meeting in order
to induce him to purchase FEAST.
     While jury instructions were being settled, plaintiffs'
counsel informed the court they would no longer proceed under
the breach of contract theory. Conklin argues that this was
a calculated course embarked upon by plaintiffs to wrongfully
get into evidence the statement that Conklin was insured.
Conklin points out there has been no allegation that the
statement was untrue and contends that the statement is not
admissible. Plaintiffs argue that the statement was part of
a fraudulent scheme to get them to buy FEAST, and is there-
fore relevant.
     Rule 403, M.R.Evid. provides:

     Although relevant, evidence may be excluded if its
     probative value is substantially outweighed by the
     danger of unfair prejudice, confusion of the is-
     sues, or misleading the jury, or by considerations
     of undue delay, waste of time, or needless presen-
     tation of cumulative evidence.
Evidence of a party's insured status is generally inadmissi-
ble in Montana tort actions because of the prejudicial poten-
tial of such evidence. See, e.g., Avery v. City of Anaconda
(1967), 149 Mont. 495, 428 P . 2 d 465. While insurance cover-
age for participants in business transactions is increasingly
common, the prejudicial potential of the mention of insurance
is still present.
     After reviewing the record, we conclude that the state-
ment with regard to insurance was a minor part, at most, of
the claim of fraud or misrepresentation. Only one statement
was alleged, and that was made during the initial sales talk.
We hold that the danger of unfair prejudice substantially
outweighed the probative value of the statement of insurance
under Rule 403, M.R.Evid.  We direct that such evidence shall
be excluded on retrial.

     Did the District Court err by allowing the introduction
of testimony and exhibits concerning post-transaction activi-
ty in violation of the order granting severance?
     Conklin alleges that the court erred by allowing into
evidence various letters written by the plaintiffs subsequent
in time to the crop loss. Conklin argues these letters have
      no place in the present trial and are admissible only in the
      bad faith cause of action. As previously mentioned, prior to
      trial the court severed the bad faith claim for separate
      trial. The plaintiffs contend the letters were admissible as
      evidence of the "pain, frustration, and anger" suffered by
      Mr. Gurnsey and Mr. Mang.     They also contend the letters
      address the punitive damages prerequisites of maliciousness,
      recklessness, and conscious effort to commit a fraud.
           After carefully reviewing the transcript, we conclude
      that the letters written subsequent to the loss of crops,
      including those written shortly prior to trial, should not be
      admitted as evidence in this action.    They do not directly
      relate to the fraud theory or negligence theory. They do not
      support the claim for emotional distress except in an indi-
      rect manner.   The use of the letters as evidence should be
      postponed to the trial of the bad faith claim. On retrial
      the letters should not be admitted as evidence.
                                   IV
'ts
           Did the District Court err in allowing testimony which
      contained hearsay statements attributed to non-party indepen-
      dent distributors?
           Before the trial commenced Conklin sought to restrict
      the use of the depositions of certain farmers residing in
      Oklahoma.   Those depositions contained statements allegedly
      constituting misrepresentation by independent distributors of
      FEAST in Oklahoma. Portions of the depositions of the Okla-
      homa farmers were read to the jury, including statements
      attributed to these independent distributors that FEAST could
      be used as a full program without the need of a supplement.
      Plaintiffs contend that the statements are not hearsay be--
      cause they were not offered for the truth of the statements,
      but as evidence of Conklin's fraudul ent market-inq scheme.
     The   independent   distributors   referred   to   in   the
depositions were subject to the same type of a contract as
were the defendants Iverson and Place.       These contracts
provided that they were independent contractors. No evidence
was submitted with regard to the character of the relation-
ship between these distributors and Conklin.
     The commission comment under Rule 801, M.R.Evid., makes
the following statement with regard to proof of an agency
relationship:

    It should first be pointed out that the statute
    plainly requires a foundation to be laid showing
    the existence of a partnership or agency before an
    agent's admissions will be allowed in evidence. .    .
    under (D) the terminology "agent or servant" and
    "scope of agency or employment" indicates that this
    must be shown before this type of statement would
    be admitted.
In the absence of some proof of an agency relationship, the
statements attributed to the non-party independent distribu-
tors constitute hearsav. We hold that it was error to admit
this deposition testimony.
                              v
     Did the District Court err by giving a special verdict
form which 1) omitted the requirement that the jury find
"legal cause"; 2) did not require the jury to make a finding
of gross negligence, recklessness, or malice as a prerequi-
site to an award of punitive damages; 3) did not allow sepa-
rate consideration of the theories of actual fraud and
constructive fraud and failed to instruct the jury properly
as to constructive fraud?
     Conklin argues that any one of these errors, standing
alone, constitutes reversible error.     The special verdict
form was six pages long.    Issue one asked whether Conklin
committed "actual or constructive fraud" which caused damages
t o Q u e n t i n Mang, t o which t h e j u r y a n s w e r e d " y e s " .         I s s u e two
a s k e d w h e t h e r C o n k l i n n e g l i g e n t l y c a u s e d damages t o Q u e n t i n
Mang,     t o which t h e        jury     answered       "yes".        I s s u e s t h r e e and
four     asked whether           defendant        Iverson         committed      "actual       or
c o n s t r u c t i v e f r a u d " and n e g l i g e n t l y c a u s e d damages t o Q u e n t i n
Mang,     t o which t h e j u r y answered " y e s " .             I s s u e s f i v e and s i x
a s k e d t h e same two q u e s t i o n s a b o u t t h e a c t i o n s o f d e f e n d a n t
P l a c e , t o which t h e j u r y answered "no".
        The v e r d i c t form t h e n r e a d :

        I f you have answered " y e s " t o any o f t h e s i x i s s u e s
        above and t h e r e f o r e , h a v e found t h a t one o r more o f
        t h e d e f e n d a n t s h a s w r o n g f u l l y c a u s e d damages t o
        Q u e n t i n Mang, you s h o u l d p r o c e e d t o I s s u e No. 7 .
                  I f , on t h e o t h e r hand, you have answered " n o "
        t o - o f t h e s i x i s s u e s above and t h e r e f o r e , h a v e
              all
        found t h a t none o f t h e d e f e n d a n t s h a v e w r o n g f u l l y
        c a u s e d damages t o Q u e n t i n Mang, t h e n y o u r v e r d i c t
        i s f o r t h e d e f e n d a n t s and a g a i n s t Q u e n t i n Mang.
        You s h o u l d p r o c e e d t o i s s u e s r e l a t e d t o J o h n
        Gurnsey commencing a t I s s u e No. 1 2 .

        ISSUE NO. 7 :             What i s t h e t o t a l amount o f damages
        c a u s e d t o Q u e n t i n Mang?          (Do - c o n s i d e r compara-
                                                         not
        t i v e n e g l i g e n c e o f Q u e n t i n Mang, i f a n y , i n making
        t h i s calculation)       .
                $          82,500
                P l e a s e p r o c e e d t o I s s u e No. 8 .

        ISSUE NO. 8 :   What amount o f p u n i t i v e o r e x e m p l a r y
        damages, i f a n y , d o you a s s e s s a g a i n s t e a c h o f t h e
        defendants?

        D e f e n d a n t C o n k l i n Co.:       -
                                                   $     500,000.00
        Defendant Clvde Iverson:                   $    100.00                          -
        Defendant ~ o b e r t lace:    P           $

                I f you h a v e a s s e s s e d p u n i t i v e damages a g a i n s t
        a l l t h r e e d e f e n d a n t s , t h e n p r o c e e d t o I s s u e No. 11.
        -
                I f you h a v e n o t , t h e n p r o c e e d t o I s s u e No. 9 .

        ISSUE NO. 9:               Was Q u e n t i n Mang n e g l i g e n t   and d i d
        t h i s n e g l i g e n c e c o n t r i b u t e t o h i s damages?
                   Answer "yes" or "no".
                   ANSWER:     Yes
         If you answer "yes", please proceed to Issue
    No. 10.    If you answer "no", please proceed to
    Issue No. 11.
    ISSUE NO. 10:   Assuming that 100% represents the
    combined neqliqence of the plaintiff and of the
    defendants who&e negligence cbntributed as a cause
    to plaintiff's damages, what proportion of such
    combined negligence is attributable to the plain-
    tiff on the one hand and what proportion is attrib-
    utable to the defendants on the other hand?
              ANSWER:   Defendant   Conklin Company:    61%
                        Defendant   Robert Place:       0%
                        Defendant   Clyde Iverson:      1%
                        Plaintiff   Quentin Mang:       38%
                                     Total:            100%

The verdict form then relisted all of the above issues, but
as to the claim of John Gurnsey.     The jury again answered
that both Conklin and Mr. Iverson had committed "actual or
constructive fraud" and negligence.    It again answered the
questions "no" as to Mr. Place. It found that John Gurnsey
suffered $50,000 in damages and assessed an additional
$500,000 in punitives against Conklin and $100 in punitives
against Mr. Iverson.    It found Conklin 69% negligent, Mr.
Iverson 1% negligent, and John Gurnsey 30% negligent.
     The court has used a three-part standard to determine
the adequacy of a special verdict form. Kinjerski v. Lamey
(Mont. 1981), 635 P.2d 566, 38 St.Rep. 1703. The instruc-
tions must, 1) when read as a whole and in conjunction with
the general charge; adequately present the contested issues
to the jury; 2) fairly submit the issues to the jury; and 3)
clearly submit to the jury the ultimate questions of fact.
Kinjerski, 635 P.2d at 5 6 8 . We conclude that the special
verdict form used in this case      has   fail.ed to meet   the
standard in several respects.
     Issues numbered 1, 2, 11, and 12 of the special verdict
form asked the jury whether Conklin "caused" damages to the
plaintiffs. One of the objections of Conklin to the special
verdict form is the omission of any requirement that the jury
find that the defendants' activities were the legal cause of
the damages. We conclude that the questions should have been
modified so that the jury could assess damages based upon the
conduct of the defendants which was the -
                                        legal cause of injury
                                        -
to the plaintiffs.
     Special interrogatory Issue 8, punitive damages, was
reached after the jury answered "yes" to any of issues 1
through 6. The verdict form does not specify that punitive
damages can be awarded only under certain circumstances.
Those circumstances are set out separately at Instruction No.
39. The necessary circumstances should have been incorporat--
ed into the special verdict form either by reference to
Instruction No. 39 or by use of a statement of Issue No. 8
such as:

     If you find that the conduct of the defendant was
     grossly negligent, reckless, or malicious, what
     amount of punitive or exemplary damages, if any, do
     you assess against that defendant?
     From the verdict form we are unable to determine whether
the jury found constructive fraud, actual fraud, or both. On
retrial, the verdict form should be revised to clarify this.
The jury was instructed on the elements of constructive fraud
in instructions number 20, 21, 22, 23, and 24.        Conklin
asserts that all the elements must be set out in one instruc-
tion so that it is clear to the jury that all elements must
be present in order for constructive fraud to be found.    On
remand, the instructions should clearly state that all the
necessary elements of constructive fraud must be present
before constructive fraud may be found.
                             VI
     Did the District Court err by not allowing the jury to
compare like conduct?
     Conklin offered a jury instruction which instructed the
jury to compare "like conduct".     It was refused.   Conklin
argues that this was error and that the jury should have had
the opportunity to consider whether the plaintiffs acted in a
reckless disregard of their own interests.
     In Simonson v. White (Mont. 1986), 713 P.2d 983, 988, 43
St.Rep. 133, 139, this Court held that willful or wanton
conduct may be compared with like conduct for the purpose of
ascertaining damages. In this case, Conklin elicited testi-
mony that Mr. Mang wrote out two checks for almost $6,000 for
FEAST fertilizer after having met for two hours with Mr.
Place and Mr. Iverson, then strangers to him; that neither
plaintiff professed to have read the literature available to
them on the FEAST program; that plaintiffs professed to being
in the practice of signing contracts and letters without
reading them. We conclude that Conklin presented a factual
issue of whether plaintiffs engaged in willful and wanton
conduct proximately causing their damages. For that reason,
we hold that the lower court was in error in refusing the
offered jury instruction on comparing like conduct.
                             VII
     Did the District Court err in its instructions on emo-
tional distress?
     Conklin asserts that the lower court erred in failing to
instruct the jury that emotional damages should be awarded
only if the jury concluded there was a substantial invasion
of a legally protected interest which caused a significant
impact upon the person of the plaintiff.       In Johnson v.
Supersave Markets, Inc. (Mont. 1984), 686 P.2d 209, 213, 41
St.Rep. 1495, 1500, we concluded that such an instruction is
required where there has been no proof of physical or mental
injury to the plaintiff.
     Here Mr. Gurnsey claimed aggravation of his heart condi-
tion and Mr. Mang claimed aggravation of his stomach and
digestive condition. They do not contend that these condi-
tions were the result of any direct physical or mental in-jury
which resulted from the conduct of the defendants.     Essen-
tially their claims are that they suffered emotional injury,
as a part of which there were aggravations of previously
existing physical conditions. Under these circumstances we
hold that the instruction described in Johnson should have
been given.    In the present case an award for emotional
injury is proper only if the jury concludes that the defen-
dants' conduct resulted in a substantial invasion of a legal-
ly protected interest, causing a significant impact upon
either or both plaintiffs.
                            VIII
     Did the District Court err in its instructions on lia-
bility for the negligent selection of an independent
contractor?
     The court instructed the jury on agency principles and
on the difference between agents and independent contractors.
In Instruction No. 48, it further instructed the jury that,
even if they found that the Conklin distributors were inde-
pendent agents, Conklin could be held liable for the distrih-.
utors' actions. Instruction No. 48 states in part:

     Defendant Conklin should be held responsible if it
     negligently failed to select competent or qualified
     contractors to do the work and that said failure
     caused the Plaintiffs ' losses. Under this excep-
     tion, the Defendant Conklin should be held respon-
     sible for damaqes i f it negligently failed to
     ascertain whether or not its independent contrac-
     tors were competent or qualified to sell FEAST
     fertilizer or negligently failed to select contrac-
     tors who possessed the measure of skill necessary
     to properly sell FEAST fertilizer.
     In determining whether or not the Conklin Company
     has been negligent in the selection of people to
     perform the work in question you may consider
     evidence of whether said persons had the measure of
     skills necessary or experience necessary to do the
     work required. You can also consider the nature of
     the work to be performed and the risk of harm to
     others if it is not performed properly.
Conklin argues that this exception to the general rule on
independent agents is inapplicable to fertilizer salesmen.
The plaintiffs argue that this instruction is appropriate
under Restatement (Second) of Torts    411 (1986).    That
section states

     S. 411.   Negligence in Selection of Contractor
    An employer is subject to liability for physical
    harm to third persons caused by his failure to
    exercise reasonable care to employ a competent and
    careful contractor
         (a) to do work which will involve a risk of
    physical harm unless it is skillfully and carefully
    done, or
         (b) to perform any duty which the employer
    owes to third persons.
     We adopt the limitation of S 411 which provides that
liability is limited to physical harm. The jury instruction
here did not contain such a limitation. We conclude that the
giving of this instruction was error.
                             IX
     Did the plaintiffs fail in their burden of proof of
punitive damages, and was the punitive damage award the
result of passion, prejudice, or other error?
     Plaintiffs did not submit anv evidence to the jury on
Conklin's net worth.   Instead, they presented evidence of
Conklin's dollar sales of FEAST fertilizer over a period of
several years. Conklin says that the plaintiffs have failed
to address one of the factors listed in Court's Instruction
No. 40 for determining the amount of punitive damages: "the
wealth and pecuniary ability of the Defendants."
     Conklin has cited as authority for its position Safeco
Ins. Co. v. Ellinghouse (Mont. 1986), 725 P.2d 217, 43
St.Rep. 1689. In that opinion, this Court listed as a factor
in determining the amount of punitive damages "the relative
wealth of the defendant. "    Although this would logically
appear to include net worth, it does not require proof of net
worth.   Therefore, in a case such as the present case, in
which the defendants' net worth does not support an award of
punitive damages in the amount the plaintiffs seek, we con-
clude that it is up to the defendant to bring in the evidence
if the plaintiff does not do so.
     Conklin also argues that in light of its net worth of
$2.9 mill-ion the award of $1 million in punitive damages is
reversible because it is so excessive as to "shock one's
conscience." See - Safeco, 725 P.2d at 227. Tn light of the
                    -
reversal of this judgment on other grounds, it is not neces-
sary that we discuss this issue.
                             X
     Did the District Court err by excluding evidence offered
by Conklin?
     This refers to a 1984 videotaped presentation on FEAST
to a group of farmers in Great Falls. The videotape includes
a statement by the presenter that FEAST is only a starter
system, not a complete fertilization program.     Plaintiffs
successfully argued to the lower court that the presenter,
who testified at trial, could testify that this disclaimer
was part of his presentation, and that the tape was unre3.i-
able and was made in contemplation of trial. Conklin argues
that the tape should have been admitted as a response to
plaintiffs' claims that Conklin and its distributors contin-
ued to misrepresent FEAST up to the day of trial. We affirm
the trial court's ruling that the tape was not admissible at
trial, because it was cumulative and because it k7as too
likely to have been made in contemplation of trial.
     The judgment is reversed and this case is remanded to
the trial court for further proceedings consistant with this
opinion.



We Concur:        ,/



      Chief Justice
Mr. Justice William E. Hunt, Sr., dissenting:


     Of the ten issues discussed in the majority opinion, I
disagree with conclusions reached in eight. I will address
each in the same order as the majority opinion.
     The District Court refused to grant a mistrial
regardless of testimony at trial concerning the death of John
Gurnsey's wife. I believe that the lower court judge is in a
much better position than this reviewing court to determine
the impact of statements made during trial.      The District
Court judge did not deem the comment critical or prejudicial
enough to warrant a mistrial.      I would not overrule the
District Court's judgment on this issue.      Also, the jury
verdict does not reflect that the jury was swayed by
Gurnsey's comment about his wife. The award for compensatory
damages was barely above Gurnsey's actual crop loss.
     I would also affirm the District Court on the
introduction of evidence concerning insurance carried by
Conklin Co.    The evidence was not admitted to show the
existence of insurance or to prove negligence or liability of
the party.   The evidence was critical only to the issue of
fraudulent and deceitful sales tactics on the part of
Conklin's salesmen. As such, it was relevant and admissible.
     The granting of a severance of trials for the purpose of
establishing liability versus bad faith placed appellants in
an awkward situation at trial. Much of the evidence relevant
to proving bad faith was also relevant to proving liability.
The admission of a letter written by Mang to the Department
of Agriculture is such a piece of evidence. The letter was
properly admitted at the trial to establish Conklin's
liability, even though it may also be relevant as to the
issue of bad faith at a later trial. Mang's solicitation of
help from the Department of Agriculture goes toward proving
Conklin's business practices and the resulting damages to
appellants.
     Admission of the deposition testimony of other farmers
who had used FEAST was not reversible error. The testimony
was not offered to prove FEAST'S capabilities or lack
thereof. It was offered as evidence of Conklin's fraudulent
representations to farmers depicting FEAST as a full
fertilizer program.     The testimony does not fall under
hearsay, Rule 801, M.R.Evid., and was properly admitted.
     I acquiesce in the holding that the special verdict form
could have been better written. However, as presented to the
jury, it was not inaccurate or misleading enough to justify a
retrial.   The special verdict form, read together with all
jury instructions, adequately informed the jury of the
applicable laws, definitions and criteria which must be met
before finding Conklin liable and awarding damages.
     In my opinion, the issue concerning the giving of an
instruction comparing "like conduct" should also be affirmed.
There is nothing in the record which suggests that either
Mang or Gurnsey acted in a willfully reckless manner.      If
anything, appellants are guilty of being ignorant as to the
capabilities of FEAST. Conklin agents knew, or should have
known, enough about the product which they were selling to
correctly inform the farmers. Because of this expertise as
sales representatives, Conklin's employees should be held to
a higher standard of conduct than purchasers of FEAST. There
is no need to compare like conduct. To do so inaccurately
raises appellants' standard of care and required degree of
knowledge to that of respondents.
     Given the facts of this case, the instruction given
concerning emotional distress was not in error.     Both Mang
and Gurnsey had physical problems which were complicated and
exaggerated by the conduct of Conklin's employees.        The
"substantial invasion of a legally protected interest"
language would     be   appropriate where    there   was   no
manifestation of physical harm caused by emotional distress.
      As with the preceding issues, the majority would also
reverse because of an alleged error by the District Court in
giving an instruction on independent contractors. As with
the preceding issues, I disagree with the majority.
      It seems obvious from the facts that Conklinls salesmen
were much more than independent contractors, excusing Conklin
from any liability for their actions except in the case of
negligent hiring which caused physical harm to third parties.
Giving instruction no. 48, as quoted by the majority, was not
an inaccurate statement of the law under the facts of this
case.
      I do agree with the majority opinion that where
"defendants' net worth does not support an award of punitive
damages in the amount plaintiffs seek,.    ..it is up to the
defendant to bring in evidence if the plaintiff does not do
SO. I
    '    Likewise, I agree that the videotape offered as
evidence by Conklin was properly refused admission by the
District Court.
      In careful consideration of the complete record and
evidence submitted to the jury, I
the jury on all issues.




Mr. Justice John C. Sheehy:
     I concur in the foregoing dissent.

                                 (..X
                                 ,-


                                          Justice
