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 2 2 1988 

(-L a 

Clerk 
Mr. Justice Frank 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 to breed by artificial 

insemination. They were pastured 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 that Heyd would manage the 

care and artificial insemination of Graham's cows in exchange 

for pasture fees or a portion of the calves produced. Fourteen 

of Graham's cows bore his registered brand. The remaining five 

were with calf and retained another brand of a previous 

owner. During this period, the respondent, Clarks Fork 

National Bank (Bank) held a security interest in Heyd's 

cattle. The Bank was not aware that Graham's cows were in 

the same pasture. 

On June 15, 1978, the Bank sent notice to Heyd of their 

intention to seize the secured cows. The following morning 

the Bank's agents went to the pasture and loaded the cows, 

including those belonging to Graham. They were taken by 

truck to a pasture 30 miles away. Several days later the 

Bank ran a brand check and discovered they had Graham's 

COWS. 

Graham first learned of the seizure several days later 

and immediately demanded their return. The Bank refused to 

return them without further evidence of ownership or to 
inform him of their location. Heyd and the Bank subsequently 

renegotiated their security agreement and af ter additional 

title documents were produced, all the cows were returned 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 in the same pasture. He determined his planned artificial insemination program for 1978-1979 had been destroyed. 

The cows remained in the 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 all the 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 suit in conversion and 

sought compensation for damages as follows: 

1. Wrongful trespass and conversion for the first 

removal in the amount of $20,175. 

2. Future losses resulting from the destruction of 

his artificial insemination program in the amount of $133,200. 

3. Exemplary damages of $50,000. 

4. General damages for the second conversion in the 

amount of $2,000. 

During trial, the court sustained the Bank's objection 

to expert testimony offered to prove the value of a hypothetical purebred angus calf crop and granted the ~ank a 

directed verdict on the claim for future damages. The court 

further granted the Bank's motion for a directed verdict on 
exemplary damages. By special verdict the jury found all 

cows taken had been returned, but that a reduction in value 

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 District Court erred in granting 

a directed verdict on the issue of future calf crop losses. 

Third, whether the directed verdict on punitive damages was 

error. We hold the granting of a new trial was proper, 

however, on retrial, Graham should be allowed to present 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 is presumed to be: 

"(a) the value of the property at the time of its 

conversion with the interest from that time or, when 

the action has been prosecuted with reasonable 

diligence, the highest market value of the property 

at any time between the conversion and the verdict 

without interest, at the option of the injured party; 

and 

" (b) a fair compensation for the time and money 

properly expended in pursuit 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 District Court disallowed any elements of damage 

not expressly provided for under the statute. In Ferrat v. 

Adamson et al. (1917), 53 Mont. 172, 181, 163 P. 112, this 

Court interpreted the statute ' s language : 

". . . The presumption announced is a disputable one, 

and may be overcome by evidence that by reason of the 

peculiar circumstances surrounding the property 

greater or less injury results from its wrongful 

conversion than the statute contemplates ; but in the 

absence of proof of such special circumstances the 

statutory rules govern . . . " 

The District Court sustained the Bank's objections to 

expert testimony regarding the value of a hypothetical 

purebred angus calf crop. The ostensible reason given was 

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 this Court has recognized and sanctioned such testimony 

although speculative in nature. See Frisnegger v. Gibson 

(1979) r - Mont. , 598 P.2d 574, 582, 36 St.Rep. 1335. 

". . . Section 27-1-203, MCA (formerly section 17- 

203, R.C.M. 1947) provides that damages may be 

awarded in a judicial proceeding for detriment resul ting after the commencement thereof ' or certain 

to result in the future.' While no case in Montana 

has construed this statute, it has always been the 

practice in Montana to instruct juries that future 

damages --- need only be reasonably certain, -- and not 

absolutely certain -- as the statute seems to imply. 

In holding, as we do, that future damagesneed only 

be reasonably certain under the evidence, it must 

be granted that in determining an award for future 

damages, a jury, or an expert testifying on -- the 

subject, must --- to some degree engage in conjecture 

and specula tion. When the con jec tureand speculation 

is based upon reasonably certain human experience 

as to future events, the jury or trier of fact is 

entitled to rely on that degree of reasonable 

certainty in fixing and awarding future damages. 

From that viewpoint, since no man has the gift of 

knowledge of the future, it is possibly less confusing to a jury, given the task of determining 

future damages, to be instructed that it may not rely 

' solely' on speculation or conjecture, but may 

utilize the reasonable certainty the evidence presents with respect to those damages. We do not 
read into the instruction as given that the jury 

could base its award 'partially' on speculation or 

conjecture; rather the instruction fairly plainly 

tells the jury that it should compensate the plaintiff for loss or harm which is 'reasonably certain' 

to be suffered by him in the future. We do not 

see that a jury could hear those words without 

realizing that it was to look to the evidence 

for reasonable certainty on the subject. We find 

no error in the instruction as given." (Emphasis 

added. 1 

The final issue is whether 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 to justify 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 

also partake somewhat of a criminal or wanton 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 act complained of is 

characterized by some such circumstances of aggravation as willfulness, 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 in evidence 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 facie ownership in someone other than the Bank's 

debtor and moved them 30 miles away. When Graham attempted 

to recover his cows, the Bank adamantly refused to divulge 

their location and returned his cows to a pasture with six 

unregistered bulls. In our opinion there was sufficient 

evidence to raise an issue for the jury's consideration. 

This cause is hereby remanded for a new trial in ac- 
We concur: 

'. 

/chief Justice 

n 

Justices