No. 13097 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

HELEN TORCHIA, individually and as a personal representative, Plaintiff and Appellant,

BURLINGTON NORTHERN, INC. a corporation, Defendant and Respondent and Cross Appellant.

Appeal-from: District Court of the Eighth Judicial District, Hon. Paul G. Hatfield, Judge presiding. Counsel of Record: For Appellant: Gough, Booth, Shanahan and Johnson, Helena, Montana Cordell Johnson argued, Helena, Montana For Respondent: Hoyt and Bottomly, Great Falls, Montana John C. Hoyt argued and Richard V. Bottomly argued,

Great Falls, Montana

Submitted: June 6, I977

Filed: '_?I" I I

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## E&m,. 

# # :~'~~~i~-~- #+'* . ClerkHon. M. James Sorte, District Judge, delivered the Opinion of the Court: This isa wrongful death action filed inthe district court, Cascade County, under the Federal ~mployers' LiabilityAct, 45 U.S.C. $51etuseq.(FELA). Plaintiff Helen Torchia aspersonal representative of the estate of decedent Gennaro Torchia, and on behalf of their children, sued defendant Burlington Northern, Inc. for damages occasioned by the death of her husband Gennaro Torchia. Gennaro Torchia, a Burlington Northern fireman, was killed in a head-on collisionbetween two railroad trains. In her complaint plaintiff alleged negligence under the 

### FELA and prayed for compensatory damages. She also, individually and

aspersonal representative of the minor children, alleged willful and wanton conduct and prayed for punitive damages. In its amended answer, defendant admitted 1iability"fornegligence under the 

### FELA. The trialcourt denied defendant's motion to strike those allegations from the complaint which had reference topunitive damages. The case was tried toa jury on the issues of compensatory damages and conduct which would form thebasis for an award of punitive damages. The jury returned a verdict for plaintiff for compensatory damages only, in the amount of 

### $580,000. The jury found the facts did not justify an award of punitive damages. Defendant appeals from thejudgment entered on the jury verdict. Plaintiff crossappeals from an order denying her motion for a
new trialon the issue of punitive damages. The facts of this care are: Atapproximately 11:45 p.m. on May 

### 11, 1971, ata point

near Sheffels on the Burlington Northern linebetween Great Fallsand Havre, therewas a head-on collision between two trains. Four of defendant's employees were killed and several others injured. One of those killed was plaintiff's husband, Gennaro Torchia. The movement of trainsbetween Great Falls and Havre 

### is controlled out of the dispatcher's office inHavre. Trains are operated over this segment of the trackby train orders and clearances. The Havre toGreat Falls route consistsof but one track, Thus, the orders and clearances are significant in controlling trainmovements where a "meet" isanticipatedbetween trains traveling inopposite directions. A dispatcher issues various orders to the operators at various stations on the line. The orders are communicated from the dispatcher to the operator by telephone. The operator then copies the orders on train order forms. The orders are then read back to the dispatcher to insure the copied orders

are correct. It 

### is also the responsibility of the dispatcher to issue clearances which are communicated to and copied by the operator in the same manner as are train orders. A train isnot allowed tomove over a trackwhich 

### iscontrolled by trainorders and clearances unless a proper clearance 

### is issued for the trainmovement. Typically, orders and clearances arenot issued until the trainhas been "called", that is, assembled and ready for departure. Generally, the conductor in charge of the train and

crew picks up the orders and clearances from the operator. When it becomes necessary to issue a second order and clearance on a given trainmovement, the firstorders and clearance are taken up and destroyed. 

# - 3

# -In 1971 it was and had been for many years the practice inHavre for the operator toplace copies of the completed clearances and orders on the train register desk in the Havre Relay Office. There was no procedure whereby it could be determined when the orders were actuallypicked up by the conductor. In this case Dispatcher Newel1 was on shift from 7:30 a.m. until 3:30 p.m. on May 

### 11, 1971. He issued orders and a clearance at3:08 p.m. for the Havre to Great Falls train, designated

as "Extra 2013 West." Newel1 expected the trainwould be called momentarily. Operator Wirtzberger then placed the clearance and orders on the train register desk. Atthat time Newel1was
unaware a trainwas being assembled inGreat Falls destined forHavre, also to leave on May 

### 11. Newel1 turned over his dispatching district to Dispatcher McMaster at3:30 p.m. Pursuant to the then operative "staggered shift" work system, McMaster who was on duty dispatching another district was,in addition, given responsibility for Newell's district until4:30 p.m. Newel1 explained toMcMaster that he had cleared the Havre toGreat Falls train. The clearance 

### is reflected inthe clearance record kept by the dispatcher. There

was no dispatching activity during thehour McMaster had responsibility for the district so no further entrieswere made in the dispatcher's book. Atthe end of his shiftMcMaster merely initialed the record book and passed it on toDispatcher Magnuson. There isa dispute in the evidence as towhether McMaster verbally informed Magnuson the Havre toGreat Falls trainwas cleared when the dispatching districtwas turned over tohim. McMaster testifiedhe informed Magnuson of the clearance. Magnuson testified no such statements were made. However, there 

### isnodispute the records McMaster turned over toMagnuson clearly indicated the trainhad been cleared at3:08 p.m. by Newell. Magnuson, during his dispatching shift, was informed that

a trainwould soonbe leaving Great Fallsbound forHavre. To arrangefor a "meet" between the respective trainswhereby one would take a side track as the other passed by, Magnuson issued

a second order and clearance at 8:18 p.m. The second order and clearancewere communicated to Operator Porter, who prepared them and placed them on the train register desk. Sometime between the time OperatorWirtzberger placed the firstorder and clearance on the trainregister desk and the time the second order and clearancewere placed on the desk, Conductor Freeburg, conductor for "Extra 2013 West", came into the Havre Relay Office and picked up the firstorders and clearance. He was not seen picking up the orders and clearance by any dispatcher or operator. Plaintiff's husband, Gennaro Torchia, was a member of the

crew of the Great Falls to Havre train. Under the second orders issued to that train, but unknown to Conductor-Freeburg of "Extra 2013West" and 

### itscrew, it was to proceed to Portage: where

a "meet" would take place. The Havre toGreat Falls trainwas to wait atPortage topermit the Great Falls toHavre train to take the siding. The Havre toGreat Falls trainpassed the siding atPortage without stopping and, shortlybeyond Sheffels, the head-on collisionbetween the two trains occurred. Gennaro Torchia was killed instantly. Atthe time of his death he was 

### 49 years of age. Additional pertinent facts

### willappear later inthis opinion.Defendant raises numerous points of error on appeal. For this opinion we 

### willdiscuss eight determinative issues: 

### 1. Whether punitive damages are recoverable inan action under the FELA? 2. Whether thetverdict should be set aside asbeing excessive and based on passion or prejudice? 

### 3. Whether the voir dire examination by counsel for plaintiff was improper? 

### 4. Whether admission of evidence pertaining to future railroad retirement benefits was error? 

### 5. Whether the trialcourt erred inadmitting certain testimony given by plaintiff's expert witness in the area of economics? 6. Whether a potential witness for defendant, whose name

was not listed on the pretrial order, should have been permitted to testify? 

### 7. Whether the trialcourt erred in selectionof instructions and form of verdict? 8. Whether admission into evidence of a portion of the Federal Railroad AdministrationAccident report was prejudicial error? Issue 

### 1. A major contention of defendant is that punitive damages should not have been an issue in the case, and evidence and proposed instructions related thereto should not have been permitted. Defendant asserts such issue should have been removed upon 

### itsmotion to strike. Defendant alleges punitive damages

arenot allowable under the FEU, and allowing plaintiff to introduce proof not only of liability,but also on the question of punitive damages was prejudicial and resulted inan excessive award

as a result of passion and prejudice on the part of thejury.Asnoted, defendant admitted 

### its liability for ordinary negligence. Atthe outsetwe reject defendant's theory that upon such an admission, plaintiff's case must be limited solely to the issue of damages. Under the facts of this case plaintiff could prove her case as she wishes subject, of course, to the ordinary controland discretion exercised by the trialjudge. Whether ornot evidence of punitive damages&as a proper place inan actionunder the FELA, thejury here refused to allow such damages to plaintiff. Inview of the evidence presented by plaintiff and the result reached by the jury, the presence of the element of punitive damages didnot prejudice defendant inthis case. Sliferv. Yorath, 52 Mont. 129, 155 P. 1113; Martin v. Corscadden, 34 Mont. 308, 86 P. 33. Further, the same reasoning applieswith reference to the alleged error inthe giving of instructions on willful and wanton misconduct and other matters relative topunitive damages. The salient fact remains thejury refused toaward such damages and, in fact, specifically found therewas no evidence of conduct which would form the basis forpunitive damages. Defendant suffered

no prejudice as a result. Hill

### v. Chappel Bros. of Montana, Inc., 

### 93Mont.92, 18P.2d 1106. Issue 

### 2. Was thejury verdict excessive and based upon passion and prejudice? Defendant asserts there must be substantial evidence in the record upon which thejury award canbe predicated, citing Montana cases. While there was more than substantial evidence inthe record tojustify the jury's award, nevertheless this 

### is not the applicable standard under the Federal Employers' Liability Act. In Resner 

### v. The N.P.Railway, 161Mont. 177, 505 P.2d 86(1973), thisCourt quoted the standard as setout inLavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L ed 916, 923, a Federal Employers' LiabilityAct case. There the United States Supreme Court said:

I1I

### It 

### isno answer to say that thejury's verdict involved speculation and conjecture. Whenever facts are indispute or the evidence 

### is such that fairminded men may draw different inferences, a measure of speculationand conjecture 

### is required on the part of those whose duty it 

### is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there 

### is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where

# * *

# * there isan evidentiary basis for thejury's verdict, thejury 

### is free todiscard or disbelievewhatever facts are inconsistent with 

### its conclusions. And the appellate court's function 

### is exhaustedwhen that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feelthat another conclusion 

### ismore reasonable.

## '(Emphasis added.)" 161Mont. 183. Plaintiff's evidence of damages was almost entirely uncontradicted. Through the testimony of variouswitnesses, plaintiff elicited facts and figureswhich, when projected into the future and discounted topresent value, would reasonably support a verdict such aswas rendered in this case. The trialjudge agreed the verdict was not unjust and a new trialwas not granted to defendant. We refuse to disturb the findings of the jury, Issue 3. This issue involves alleged improper voir dire examination of prospectivejurors by counsel for plaintiff. Nothing atallappears inthe record suggestive of the statements attributed to counsel. The law 

### is clear that unless there 

### is a record of the alleged error, this Court willnot consider the matter. Kipp

v. Willoughby, 

### 161Mont. 432, 506 P.2d 1365; Nissen 

### v. Western Construction Equipment Co., 133Mont. 143, 320 P.2d 997, Defendant's argument in this regard 

### iswithout merit.Issue 

### 4. Did the trialcourt err in allowing the testimony of plaintiff's witness, Judith Kirkness, an employee of the United StatesRailroad Retirement Board, concerning retirement benefits? The core of defendant's argument 

### is that the witness

was asked tomake certain assumptions, while the facts forming the basis for such assumptions were not of record or in evidence. The record shows that, at some time inadvance of trial, defense counsel verbally stipulated to the evidence tobe elicited from witness Kirkness. In fact, he had so stipulated ina previous FELA action. However, immediately before the instant trial, defense counsel informed counsel forplaintiff Burlington Northern had assigned a Minnesota attorney to direct the case for defendant and asa result the prior stipulation

was no longer valid. He then suggested plaintiff callJudy Kirkness as a witness. We note atthispoint that such tactics

on the part of the new counsel are strongly disapproved by this Court. The proposed evidence and the procedure tobe employed in developing it was discussed inchambers and fully considered by the trialjudge. The witness was to determine the amount of benefits Gennaro Torchia would have been entitled toupon retirement from the railroad. The factors tobe considered inarriving at such a computation are the employee's age, marital status, length of employment, rate of compensation, and length of military service. These factspertaining toGennaro Torchia, were substantially in evidence and presented ina correct fashion to thewitness forher determination. The resulting testimony was properly admitted as it was based upon evidence before the court. Graham v. Rolandson, 150Mont. 270, 435 P.2d 263; Burns v. Fisher, 132Mont. 26, 313 P.2d 1044.Issue 

### 5. Defendant alleges error in the admission by the trialcourt of testimony of plaintiff's economic expert, Dr. George P. Heliker, on the issue of economic loss suffered as a result of the death of Gennaro Torchia. It 

### is argued the expert opinions were speculative on future inflationary trends, in forecasting loss of earnings, in forecasting future earnings without considering the impact of income taxes thereon, and in forecasting loss of future Railroad Retirement Benefits. Proof of the present value of a future economic loss 

### is necessarily uncertain to a degree. Any determination of factors such as growth in the sizeof the total labor force, output per madhour, wage trends and inflationarypatterns 

### is admittedly grounded inprobabilities. However, this does not mean the amount of a future loss 

### isnot provable. Such losses arebest proved through employment of economic and statisticaldisciplines, applied tothe very factors listed above, asthis Court has recognized innumerous prior decisions. Where, ashere, the testimony of a specialistpresents a jury with a reasonable basis upon which to estimate, with some degree of certainty, the probable future losses occasioned by the death of decedent, such testimony should be admitted. Resner v. The N.P. Railway, supra; Krohmer v. Dahl, 145Mont. 491, 402 P.2d 979. See Lavender v. Kurn, supra, for a general discussion of trends involving speculation and conjecture in ascertaining damages in FELA actions. Defendant was aware, pretrial, that plaintiff intended to 

### call Dr. Heliker to testify toprecisely those matters defendant

now disputes. The opportunity tocontest the accuracy of such testimony, through itsown expert testimony, was available to defendant. However, it chose not tocallan expert witness on these matters.


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# -Issue 

### 6. Did the trialcourt err inexcluding the testimony of defendant's proposed witness S. M. Smiland, with respect to insurance benefits, wages, damages, etc.? We emphasize here that considerable pretrial discovery and discussionwas had inthis case, duringwhich the identities of allwitnesses were disclosed and listed in thepretrial order. However, the name of S.M. Smiland firstappears following plaintiff's case-in-chief. There 

### isno record plaintiff knew witness Smiland, or that he was present inGreat Falls during

a portion of the trial. He was never introduced toplaintiff and plaintiff was afforded no opportunity totalk toSmiland before hisproposed testimony was tobegin. Under the circumstances, itwas certainlywithin the discretion of the trial judge to allow or disallow thewitness to testify. Sanders v. Mount Haggin Livestock Co., supra. Issue 

### 7. This issue concerns instructions given and refused by the trialcourt. Court's instructionsNo. 14 and No. 

### 20 were objected to by defendant on the grounds a decedent father's comfort, protection, society, education and companionship arenot proper elements of damage recoverable under the FELA. Instruction No. 14provides inpart:

"You may also consider and award such sum asyou may determine represents the pecuniary value of any loss, if any, sustainedby thewidow and the familyby reason of being deprived of Gennaro Torchia's comfort, protection, society, education and companionship. In considering such pecuniary loss, you may consider the age and lifeexpectancy of the wife and family inrelation to the age of the decedent, the disposition of the deceased, whether itwas kindly, affectionate, or otherwise, the degree of intimacy existingbetween the deceased and his family, their station in life, and such other facts shown by the evidence which may throw lightupon such losswhich theheirs reasonably might have expected toreceive from the deceased, had he lived. 

# ** *'IInstruction No. 20 states: "You are instructed that: "You have heretofore been instructed on damages which may be allowed towife and family for the death of Gennaro Torchia. One of the elements of such damage 

### is the pecuniary value of the society, comfort, care, companionship, protection and education the wife and family have lostby reason of his death. If you find from the evidence that the deceased did provide society, comfort, care, companionship, protection and education, which went to the moral orphysical training and well-being of the widow and family, this loss if 

### it has,pecuriiary or.financialvalue, may be measured and compensated. 

# ** *'I It istrue damages under the FELA aremeasured by and limited to the pecuniary loss sustained by the survivors

as a result of the death of the employee. Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L ed 906; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L ed 417. Recovery 

### isauthorized only to the extent the survivors are shown tohave been deprived of a reasonable expectation of financialbenefits, assistance or support. Mellon v. Goodyear, supra; SeeAnno: 67 ALR2d 745,746. However, thepecuniary value associatedwith the loss of parental care, guidance and education the decedent would expectably have given hisminor children, is recoverable under the FELA. Norfolk & Western R. Co. v. Holbrook, 235 U.S. 625, 35 S.Ct. 143, 59 L ed 392; Michigan Central R. Co. 

### v. Vreeland, supra. In determining the extent of contribution which 

### is reasonable tobe anticipatedby thebeneficiaries, thejury may properly consider evidence the decedent was industrious, thrifty, kind and faithful tohis family. Allendorf v. Elgin, Joliet & Eastern R. Co., 8 I11.2d 164, 133N.~.2d288, 

### 79 ALR~~ 241, cert. den. 352 U.S.833, 

### 77 S.Ct. 49, 

### 1L ed 2d 53, reh.den. 352 U.S. 937, 

### 77 S.Ct. 219, 1Led 2d 170.Contained within the court's instructions No. 14 and No. 

### 20 is language having the effect of limiting recovery to the pecuniary value of losses sustained. Further, the language speaks to limiting losses toChose which the survivors reasonably might have expected to receive from decedent, had he lived. Plaintiff's evidence pertaining to the extent of the loss of parental care, guidance and education was ample and uncontradicted, aswas the evidence demonstrating the decedent was industrious, thrifty, kind and faithful to his family. Thus, while there may have been minor variations inthe instructions from the accepted measure of damages inFELA actions, they cannot be said tohave prejudiced the defendant. The instructions were not totally confined to an 

### FELA death action, there being variations but on those variations no evidence was adduced attrial. We findno prejudice. Defendant also objects to the giving of court's instruction No. 19, which provides: "You are instructed that: "In considering the loss of contribution tothe family from future earnings of decedent you are instructed that you should first reduce future earnings to present value using a reasonable rate of discount for thispurpose. The evidence as to annual inflationwhich has an effect on depreciating the value of a dollar should alsobe considered as towhat extent such depreciation offsets the interest that could be earned on an award of future earnings. Inaddition, you may consider wage increases the deceased might have expected to receive inarriving atdeceased's true loss of future earnings and earning capacity." Aspreviously pointed out, this Court approves of considerationby thejury of the fact of inflation in arriving atan award for loss of future earnings, where the evidence as to annual inflation and related matters 

### ispresented, ashere, in

a competent manner. Resner v. The.N.P. Railway, supra.The trialcourt refused defendant's proposed instruction No. 

### 8 asbeing duplicitous.' We find it tohave been properly refused by the trialcourt. The court also refused togive defendant's proposed instructions No, 14, No. 15 and No. 16, on considerationof the impact of income taxes on damage awards. In so doing, the trialcourt

was in accord with the weight of authority, Future income tax liability 

### isnot a proper consideration in an award for loss of future earnings. Bracy v. Great Northern Ry. Co., 136Mont. 65, 343 P.2d 848. Defendant relies on Burlington Northern, Inc. v. Boxberger, 529 F.2d 284 (1975), for theproposition that future tax liability should be considered inmaking a damage award. A careful reading of Boxberger, however, discloses that it is an admitted departure from the majority position. The court therein stated rhat an instruction on the effect of future income tax liability is proper when competent evidence 

### isbrought forth attrial showing the likely amount of tax. Defendant here has made no such showing.
, A further objection raised by defendant was to the form of the verdict approved by the trialcourt inthat it includes items of compensatory damage not contemplated under theFELA, The same reasoning employed regarding defendant's objection to court's instructions No. 14and No. 

### 20 isno lessapplicable in this instance. Defendant was not prejudicedby the form of verdict in this case. Issue 8. This issueconcerns the propriety of admission in evidence of conclusions contained in theFederal Railroad Administration Report of 

### its investigation of the trainwreck of May 

### 11, 1971. 45 U.S.C.541 states:"Neither the report required by section 38 of this title nor any report of the investigation provided for in section 

### 40 of this titlenor any part thereof shallbe admitted asevidence orused for any purpose inany suit or action for damages growing out of any matter mentioned in said report or investigation

# ." During trialcounsel forplaintiff read into the record, before thejury, a verbatim copy of certain conclusions contained inthe accident report, which were incorporated into the complaint. Counsel was alsopermitted, over objection, to read to thejury

an interrogatory to defendant and the amended answer thereto. The answer also contained accident report conclusions. Inneither

case was the report itself made a part of the record. Atno time

was thejury informed the statements being read were taken from the accident report orbased on findings of the Federal Railroad Administration. This Court does not condone such a method of bringing potentially objectionable material before thejury. However, here the error, if any, was harmless. The manifest purpose of theprohibitive legislation is the prevention of the use inevidence of a report which, being issued by a federal agency, has the outward appearance of being conclusive on the facts. The eviltobe avoided 

### isthe undue weight thejury would give to the report, denominated as such, over other evidence produced atthe trial. Here, itwas defendant's own answer to the interrogatory, produced attrial, which was thevehicle for introduction in evidence of certain of the report conclusions. We cannot see how thisprocedure, given the other evidence produced inthis particular case, prejudiced defendant ina substantialmanner. The judgment entered upon the verdict of the jury is affirmed. 

# on.. J~~HM. ~ortF, District w* Judge, sltting for

### Mr. Chief Justice Paul G. Hatfield.

### We 

### Concur:



# /i Justices.