### No. 80-349 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

DEAN GRAHAM, 

### Plaintiff and Appellant,

CLARKS FORK NATIONAL BANK, a Montana Corporation,and RAYMOND L. MIRABAL, Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Carbon. Honorable William J. Speare, Judge presiding. Counsel 

### of Record: For Appellant: Swandal, Douglass & 

### Swandal, Livingston,Montana Kent Douglass argued, Livingston,Montana For Respondent: Joseph E. Mudd argued, Bridger,Montana

Submitted: June 18, 1981 Decided: July 22, 1981 Filed: 

## JuL

## 221988 

# (-L

a 

### ClerkMr. JusticeFrank B. Morrison, 

### Jr., delivered the Opinion of the Court.

This 

### is an appeal from an order of the District Court which 

### set aside a jury award as excessive and granted a new trial limited to the issue of damages arising from the wrongful conversion of cows belonging to the appellant, Dean Graham. In the spring of 1978, Graham was the owner of 19 registered angus cows which he planned tobreed by artificial insemination. They 

### werepastured with cows belonging to one Marvin Heyd. Graham, a full-time employee of a telephone company, and Heyd, an experienced rancher and breeding specialist, had earlier agreed thatHeyd would manage the

care and artificial insemination of Graham's cows inexchange forpasture fees or a portion of the calves produced. Fourteen of Graham's cows bore hisregistered brand. The remaining five



### werewith calf and retained another brand of a previous

owner. During thisperiod, the respondent, Clarks Fork National Bank (Bank) held a security interestinHeyd's cattle. The Bank was not aware thatGraham's cows 

### were in the same pasture. On June 15, 1978, the Bank sentnotice toHeyd of their intention to seize the secured cows. The followingmorning the Bank's agentswent to the pasture and loaded the cows, including those belonging toGraham. They 

### were taken by truck to a pasture 30 

### milesaway. Several days later the Bank ran a brand check and discovered they had Graham's

COWS.Graham firstlearned of the seizure several days later and immediately demanded their return. The Bank refused to return them without further 

### evidence of ownership or toinform him of their location. Heyd and the Bank subsequently renegotiated their security agreement and af

### ter additional 

### title documents 

### wereproduced, all the cows 

### werereturned on June 29, 1978, to a second ranch leased by Heyd. Although Graham told the Bank he should be consulted regarding the return of his cows, he was not notified prior to their return. When Graham examined his cows on July 1, he found six bulls inthe same pasture. Hedetermined his planned artificialinsemination program for 1978-1979 had been destroyed. The cows remained inthe pasture through the summer and fall of 1978. Several months after the cows were returned, Heyd defaulted on the renegotiated agreement with the Bank. The Bank's agents returned to the pasture on October 5, 1978, and drove allthe cows to a corral approximately 300 yards away. Graham's cows 

### were separated from the herd and returned to the pasture. Graham subsequently instituted a suitinconversion and sought compensation for damages as follows: 

### 1. Wrongful trespass and conversion for the first removal inthe amount of $20,175. 2. Future losses resulting from the destruction of his artificial insemination program inthe amount of $133,200. 3. Exemplary damages of $50,000. 

### 4. General damages for the second conversion inthe amount of $2,000. During trial, the court sustained the Bank's objection to expert testimony offered toprove the value of a hypothetical purebred angus calf crop and granted the ~ank 

### a directed verdict on the claim for futuredamages. The court further granted the Bank's motion for a directed verdict onexemplary damages. By special verdict the jury found all

cows taken had been returned, but that a reduction invalue between June 16 and June 29 had occurred in the total amount of $1,425. The jury further found that Graham suffered general damages as the result of the Bank's second seizure of the cows in the amount of $1,000 and found that Graham

was entitled to recover $1,050 as a reasonable amount in regaining possession of the cattle. The jury also returned

a general verdict for $50,000, although future calf crop losses and exemplary damages had been removed from their consideration. This appeal presents three issues for review. First, whether the District Court properly granted a new trial on damages. Second, whether the DistrictCourt erred ingranting

a directed verdict on the issue of future calf crop losses. Third, whether the directed verdict on punitive damages was
error. Wehold the granting of a new trialwas proper, however, on retrial, Graham should be allowed topresent his expert testimony on future calf crop losses and the claim of exemplary damages should be submitted to the jury. The statutory damages for conversion are stated in section 27-1-320, MCA. 

### "(1)The detriment caused by the wrongful conversion of personal property 

### ispresumed to be: "(a) the value of the property atthe time of 

### its conversion with the interest from that 

### timeor, when the action has been prosecuted with reasonable diligence, the highestmarket value of the property atany time between the conversion and the verdict without interest, atthe option of the injured party; and 

### "(b) a fair compensation for the 

### time and money properly expended inpursuit of the property. 

### "(2) The presumption declared by subsection (1) cannot be repelled in favor of one whose possession was wrongful from the beginning by his 

### subsequent application of the property to the benefit of the owner without such owner's consent."The DistrictCourt disallowed any elements of damage not expresslyprovided for under the statute. InFerratv. Adamson 

### etal. (1917), 53 Mont. 172, 181, 163P. 112, this Court interpreted the statute

## 's language: 

# ".

. . The presumption announced 

### isa disputable one, and may be overcome by evidence thatby reason of the peculiar circumstances surrounding the property greater or 

### less injury results from 

### itswrongful conversion than the statute contemplates; but inthe absence of proof of such special circumstances the statutoryrules govern

# . . ." The DistrictCourt sustained the Bank's objections to expert testimony regarding thevalue of a hypothetical purebred angus calf crop. The ostensible reason givenwas the testimony lacked foundation and was too speculative. This 

### was error. Sufficient foundation was laid for the expert's testimony regarding future calf crop losses. This kind of testimony 

### is necessarily speculative to some degree, but thisCourt has recognized and sanctioned such testimony although speculative innature. See Frisnegger v. Gibson Mont. (1979)r 

### - 

## , 598 P.2d 574, 582, 36 St.Rep. 1335. 

# ".

. . Section 27-1-203, MCA (formerly section 17- 203, R.C.M. 1947) provides thatdamages may be awarded ina judicial proceeding for detriment 

### resul ting after the commencement thereof 

## 'orcertain to result in the future.' While no case inMontana has construed this statute, 

### it has always been the practice inMontana to instructjuries that future damages 

## --- need only be reasonably certain, 

## -- and not absolutely certain 

## -- as the statute 

### seems toimply. Inholding, 

### as 

### we do, that future damagesneed only be reasonably certain under the evidence, 

### itmust be granted that indetermining an award for future damages, a jury,

# oran expert testifying on 

## -- the subject, must 

## --- to some degree engage inconjecture and specula tion. When the con jectureand speculation 

### is based upon reasonably certain human experience as to future events, the jury or 

### trier of factis entitled to rely on thatdegree of reasonable certainty infixing and awarding futuredamages. From thatviewpoint, sinceno man has the giftof knowledge of the future, it 

### is possibly 

### less confusing to a jury, given the task of determining future damages, tobe instructed that 

### itmay notrely 

### 'solely' on speculation or conjecture, butmay utilize the reasonable certainty the evidence presentswith respect tothose damages. Wedo notread into the instruction asgiven that the jury could base 

### its award 'partially' on speculation or conjecture; rather the instruction fairlyplainly 

### tells the jury that 

### it should compensate the plaintiff for loss or harm which 

### is 'reasonably certain' tobe suffered by him inthe future. We do not 

### see thata jury could hear those words without realizing that

### itwas tolook to the evidence for reasonable certainty on the subject. We find no error inthe instruction asgiven." (Emphasis added.

### 1 The final issue 

### iswhether the evidence supported a under jury issue on punitive damages,/section 27-1-221, MCA. We have carefully reviewed the record and find sufficient evidence tojustify submission of the issue of punitive damages to the jury. In Klind 

### v. Valley County Bank (1924), 69 Mont. 386, 399, 222 P. 439, 444, 

### we stated the general rule respecting punitive awards: "'To warrant the recovery of such damages the 

### act complained of must not only be unlawful, but must alsopartake somewhat of a criminal orwanton nature. And 

### it 

### is an almost universally recognized rule that such damages may be recovered in

### cases, and only in such cases, where the wrongful actcomplained of 

### is characterized by some such circumstances of aggravation aswillfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant. (8

### R.C.L. 585, 586.)

## '" We find the following facts inevidence justified the submission of punitive damages to the jury under the "recklessness" standard of Klind and section 27-1-221, MCA. The Bank seized Graham's cows which carried brands establishing prima facieownership in someone other than the Bank's debtor and moved them 30 

### milesaway. When Graham attempted torecover his cows, the Bank adamantly refused to divulge their location and returned his cows to a pasturewith six unregistered bulls. Inour opinion there was sufficient evidence to raise an issue for the jury's consideration. This cause 

### ishereby remanded for a new trial inac-We concur: 

### '. /chief Justice

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Justices