No. 12104 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CHAROLETTE L. RESNER, Administratrix of 

the Estate of Herbert Re Resner, Deceased, 

Plaintiff and Appellant, 

THE NORTHERN PACIFIC RAILWAY, a Wisconsin 

Corporation, 

Defendant and Respondent, 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Daniel J. Shea argued, Missoula, Montana. 

For Respondent: 

Garlington, Lohn and Robinson, Missoula, Montana. 

J. C. Garlington appeared and Lawrence F. Daly, argued, 

Missoula, Montana. 

Submitted: September 20, 1972 

Decided : JAN 12 197. 

Filed: JAN 12 1973 
Krr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arose out of a wrongful death action brought 

under the Federal ~m~lo~ers' Liability Act, 45 U.S.C.A. 5 51 et 

seq. Herbert R. Resner and his section foreman, Benny Adams, 

were killed when the track motor car on which they were riding 

collided with a Northern Pacific freight train on August 15, 1967. 

The collision occurred between Alberton and Cyr, Montana, between Mileposts 158 and 159 on the Northern Pacific tracks. At 

the time of their death, both Resner and Adams were employees of 

the defendant railroad company and were acting within the scope 

of their employment. Charolette L. Resner, widow of Herbert 

R. Resner and administratrix of his estate, brought this action 

for his wrongful death on behalf of herself and their children. 

Trial with a jury was held in the district court of the fourth 

judicial district, Mineral County, Hon. Jack L. Green, presiding. 

By special verdict, the jury found Northern Pacific Railway 

negligent in two ways: (1) Failure to enforce, observe and obey 

the safety rules of the railroad for obtaining and using train 

lineups and operating track motor cars, and (2) failure, by and 

through its agent Adams,to see and observe the approaching train 

and avoid the collision. Resner was found to be ten percent 

contributorily negligent. The jury returned a verdict for plaintiff in the amount of $175,000. In answer to special verdict 

questions, the jury found five percent to be a reasonable rate 

of increase in wages and prices to determine future damages, and 

ECve percent to be a reasonable rate of discount to be used in 

determining the present worth of future damages. 

The evidence concerning future earnings was introduced 

through the testimony of plaintiff's witness Dr. George B. 

Heliker, a recognized expert in the field of labor economics. 

He gave several opinions with regard to future damages as concerns 
this case. One opinion was that Herbert Resner could reasonably 

have expected an annual five percent increase in wages during 

the remainder of his work life expectancy. He testified that 

since World War I1 wages have increased at least five percent 

per year and that as applied to Resner, his wages as a section 

man kept pace with the increases of section men throughout the 

United States. Too, wages for section men continued to increase 

after Resner 's death. Resner 's base hourly wage at the time of 

his death was $2.6699. By December 1970, this rate had increased 

to $3.4444. This testimony was not controverted at trial by 

defendant railroad company, 

Dr. Heliker also testified extensively on the discount 

rate to be applied in reducing future earnings to present worth, 

The process of discounting involved taking the product of the 

base earning capacity plus the growth rate of wages and applying 

a discount rate to reduce those amounts to present worth. As a 

result of his calculations, he concluded that a five percent 

discount rate was most reasonable. In so finding, he noted that 

If it was strictly accidentalff that the wage growth rate equaled 

the discount rate. He further concluded that future economic 

losses could best be estimated by projecting them on a flat 

rate basis, that is, no increase for wage growth and no decrease 

for discount. 

On February 23, 1971, defendant filed a motion for entry 

of judgment, requesting the jury's verdict be reduced, The 

motion stated (1) it was erroneous for the jury to be allowed 

to speculate on future wage increases and to offset those increases against the discount to present worth, (2) by the wording 

of the special interrogatories to the jury the future damages 

would be increased, by failure to apply the discount rate, to 

a figure not supportable by the evidence. 

On April 20, 1971, Judge Green granted defendant's motion 

for entry of judgment and recomputed the plaintiff's award to be 
$91,740.49, plus costs. A number of plaintiff's motions were 

denied, On April 30, 1971, defendant sent plaintiff a check 

ror the amount of the judgment, plus costs. Plaintiff refused 

tender and returnedthe check to defendant. 

On May 3, 1971, plaintiff moved to alter or amend the 

judgment, stating that the defendant had previously agreed to 

have the interest on the judgment run from February 10, 1971, 

and that interest was not included in the check. Defendant 

deposited the check for the amount of the judgment plus costs 

in a savings account in plaintiff's name at the Southside 

National Bank, Missoula, Montana on Play 19, 1971. Defendant 

contended the deposit of the check in the bank constituted 

compliance with section 58-423, R.C.M. 1947, relating to the 

extinction of money obligations, and thereby the interest on 

the judgment was terminated. Plaintiff, on the other hand, 

maintained that since the defendant did not deposit the amount 

of interest on the judgment along with the judgment, the statute 

was not satisfied and the interest did not terminate. Defendant 

conceded that it had been previously agreed that interest should 

run from February 10, 1971. The court ruled that plaintiff should 

receive interest from February 10, 1971 through May 24, 1971, and 

later overruled plaintiff's objections to the court deducting 

ten percent for Herbert Resner's contributory negligence. 

On June 21, 1971, final judgment for $91,740.49, plus 

costs and interest was entered by the court. Plaintiff appeals 

from that final judgment and all related rulings. 

The basic issue here is whether the trial court was correct 

in granting defendant's motion for entry of judgment, In granting 

the motion, the court recomputed the jury's award, reducing it 

considerably. At the hearing on plaintiff's motion to amend, 

May 28, 1971, the court indicated that the reason for not using 

the five percent figure deduced by the jury to be a reasonable 

I I figure for determining future wage increases was that as a 

matter of law * 9~ the question of inflation is speculative, 
conjectural, uncertain, and is an improper element of damages 

" #, " ,, ,, ".I' We hold the trial court was in error in granting defendant's motion. 

The jury was allowed to consider extensive expert testimony 

on the subject of future wage increases. Dr. Heliker testified 

at length concerning future wage increases. Based on his 

appraisal of past economic history of this country, he indicated 

why wages and prices will continue to rise in the future: 

lIJc L. 5: because prices have been increasing, the 

value of money has been decreasing or declining. 

It is necessary to pay higher wages in order to 

maintain purchasing power and because output per 

man hour has been increased steadily, you see * * * 

it [man's productivity] has been rising the entire 

period very steadily at a steady rate. At the 

present time, it is rising around about 3 percent 

per year, which means that even if prices didn't 

increase at all, that wages would tend to rise 

about 3 percent per year simply because labor is 

more active. It turns out more per man hour, so 

it is possible to pay higher wages. Two reasons 

why wages will go up is because productivity increases and they go up also because it is necessary 

that they go up, prices go up, 

I I 

This Court, as well as others, has allowed the testimony of 

actuaries and economists to produce testimony on future earning 

capacity, recognizing that such testimony removes considerable 

speculation and conjecture from the jury's deliberation, Krohmer 

v, Dahl, 145 Mont. 491, 495, 402 P.2d 979; Scruggs v. Chesapeake 

and Ohio Railway Company, 320 F.Supp. 1248, 1251; Magill v. 

Westinghouse Electric Corporation, 327 F.Supp. 1097, 1105. 

The jury determined that five percent was a reasonable 

figure to determine future wage increases. It apparently accepted 

Dr. ~eliker's testimony in full on that point, which it had a 

right to do. Defendant did not produce expert testimony demonstrating a different figure to be more appropriate. Dr. Heliker 

explained how he arrived at the five percent figure: 

''I?ow actually if you add together the rates of 

increase of prices and productivity in post-war 

periods, post-second World War period, you add 

them together, you would get just about exactly 

the rate of increase of wages that we have had 
over this period since the second World War and 

increased prices between 1 and a half to 2 percent, 

much higher at the present time. Over that whole 

period, it has averaged somewhere around 1 and a 

half to 2 percent. Productivity has increased at 

somewhere around 3 to 3 and a half percent. 

'"ow if you add those two things together and 

you get just about exactly the rate of increase c ~rom wages, about 5 percent or a little more. 11 

Dr. Heliker's computations were extensive and involved, but 

essentially he said: 

"* fc * here is what happened in the past and, 

as far as I can see, this same thing is going to 

happen in the future. +C +C "'I ,. 

At the same time Dr. Heliker predicted a five percent 

wage growth rate, he foresaw five percent to be a reasonable 

discount rate. Although the wage growth rate and the discount 

rate were both five percent, the figures were arrived at 

independently. In selecting the five percent figure, Dr. Heliker 

rejected the historical four percent figure used as a discount 

rate. As a result, the wage growth rate equaled the discount 

race, thereby canceling each other. Of necessity, the effect 

would have been that the jury's special verdict would only be 

reduced by Resner's ten percent contributory negligence. However, the trial judge's ruling after the special verdict was 

returned that inflation was speculative and not a proper element 

of damages, removed the cancellation effect. The judgment 

ignored the five percent future wage growth rate, but used the 

five percent discount rate. 

Defendant repeatedly asserted in its motion for entry of 

judgment and in its brief before this Court, that future wage 

increases are speculative and conjectural. This is not enough. 

This Court's function in a Federal ~rn~lo~ers' Liability Act case 

is clear. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 

90 L.Ed 916, 923, a Federal Employers' Liability case, the 

United States Supreme Court said: 

I I It is no answer to say that the jury's verdict 

involved speculation and conjecture. Whenever 

facts are in dispute or the evidence is such that 

Fair-minded men may draw different inferences, a 
measure of speculation and conjecture is required 

on the part of those whose duty it is to settle 

the dispute by choosing what seems to them to be 

 he 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 f: 9: there is an evidentiary basis for 

the jury's verdict, the jury is free to discard or 

disbelieve whatever facts are inconsistent with its 

conclusion. And the appellate court's function is 

exhausted when that evidentiary basis becomes apparent, 

it being immaterial that the court might draw a contrary inference or feel that another conclusion is 

more reasonable." (Emphasis added). 

Here, the evidentiary basis for determining the discount rate 

and the future wage growth rate is apparent to us, and most 

certainly it was to the jury. 

Furthermore, the testimony of Dr. Heliker was not the only 

evidentiary basis on which the jury could make its award, There 

was other evidence equally as convinchg. For example, certain 

wage agreements, not yet finalized at the date of trial, pertaining to contracts between the Brotherhood of Maintenance of Way 

Employees and Burlington Northern Railway, were introduced into 

evidence. The wage increases in those contracts have now been 

scheduled and indicate substantial wage growth over even a short 

period of time. Such evidence offered the jury an evidentiary 

basis for its decision, independent of Dr. ~eliker's testimony. 

It would be sufficient to reverse the trial court's ruling 

on the basis of Lavender alone. However, since both plaintiff 

and defendant raise issues concerning future wage increases, we 

shall determine them. We are aware that federal law governs 

damages in a Federal ~mplo~ers' Liability Act case. Further, as 

defendant pointed out, the United States Supreme Court held in 

Chesapeake & Ohio Railway Company v. Kelly, 241 U. S. 485, 4-91, 

l Ifc - ik that when future payments or other pecuniary 

benefits are to be anticipated, the verdict should be 

made upon the basis of their present value only. 11 

Defendant relied heavily on Kelly and on the more recent 

case of Sleeman v. Chesapeake and Ohio Railway Company, 414 F.2d 

305, 307, wherein the court said: 
"To date [the Kelly case] has not been amended 

or overruled, and it was error to fail to apply 

it to the computation of future earnings. '1 

However, there that court went on to point out: 

"As to the inflationary trend offset, this 

record provides no evidentiary basis for the 

decision of the District Judge." (Emphasis added). 

That cannot be said in the instant case; clearly, there was an 

eviden~iary basis for the jury's finding of five percent to be 

a reasonable rate of increase in future wages. Therefore, we 

find Sleeman not applicable. 

We are not persuaded by the cases cited by defendant holding 

future wage growth as speculative. In Scruggs v. Chesapeake and 

Ohio Railway Company, 320 F.Supp. 1248, 1250, 1251, a Federal 

Employers' Liability Act case cited by plaintiff, the opposite 

point of view is taken. There the court said: 

"Courts have split on the question whether juries 

should be allowed to consider future trends in 

the purchasing power of money. 

"The question before the jury was the pecuniary loss 

which would be suffered by the plaintiff and her son 

in the future. The probability of increases in 

decedent's income was certainly relevant to that issue. 

It seems unlikely that their conclusion will be any 

less valid from having heard the testimony objected 

to, and they may be much more correct than otherwise. 

Inflation is a topic of almost universal discussion 

and it seems improbable that the jury could avoid 

taking it into account even in the absence of any 

testimony about it. The defendant cross-examined Dr. 

Sandridge and also argued its analysis of the trends, 

which the jury apparently did not accept. Each day 

juries are required to assess damages for future pain 

and suffering, which are also somewhat speculative, 

and the court believes that the defendant was not 

unfairly prejudiced by the admission of Dr. sandridge's 

testimony. I I 

We find the situation in Scruggs and the instant case to be 

analogous. Also, we find further support for allowing the jury's 

determination to stand undiminished in Grunenthal v. Long Island 

K.Co., 393 U.S. 156, 89 S.Ct. 331, 21 L ed 2d 309, 312, 313. There, 

in the original action, 292 F.Supp. 813, 815, the plaintiff moved 

to amend the ad damnum clause of the complaint to increase it in 

conformity with the higher verdict rendered by the jury. In 
granting the motion, the judge indicated there was a likelihood, 

on the basis of the evidence presented, that the discount rate may 

be setoff by future increases. As in the instant case, the testinloi-iy went unrefuted. In a 2 to 1 decision, the court of appeals 

remanded the case for a new trial unless the plaintiff agreed to 

accept a reduction in the amount of the award. Grunenthal v. 

Long Island R.Co., 388 F.2d 480,484. 

The United States Supreme Court, on the other hand, agreed 

with the district court decision and reversed the court of appeals. 

Judge Brennan, delivering the opinion for the court, noted that 

the trial judge considered the petitioner's present salary "plus 

likely increases over a life expectancy of 27.5 years" and then 

went on to say: 

"The trial judge 9; J; -?; appraised the evidence on 

future earnings as sufficient to support an award 

of $150,000 for loss of future wages in light of the 

I convincing testimony not refuted J; demonstrating 

the steady wage increases in recent time for work 

equivalent to that rendered by plaintiff, and the 

strong likelihood that similar increases would cont inue . I 

"We cannot say that the trial judge's view that the 

jury might properly have awarded $150,000 for loss 

of future earnings is without support in the evidence. I I 

The court more than tacitly approved a calculated and expert 

investigation of future wage increases to be a proper and necessary element in awarding future damages. To do otherwise is to 

ignore reality. Here, defendant would have this Court take the 

position of an ostrich with his head in the sand. Economic reality 

requires us to consider not only what the plaintiff is to receive 

in theory, but in fact. Abstract rules of law are of little comfort to a plaintiff whose injuries remain unrequited. The United 

States Supreme Court has recognized that where competent expert 

testimony supported by mathematical data is presented concerning 

future damages, more certainty is added to the jury's deliberation. 

In Krohmer v. Dahl, 145 Mont. 491, 496, 402 P.2d 979, this 

I I Court recognized that the testimony of a specialist [in economics] 
presented the jury a reasonable basis llpvn which ilo -.sti~naLe with 

some degree of certainty the probable future earnings of the 

11 deceased. In Krohmer, the Court cited with approval the New 

Nexico case of Turrietta v. Wyche, 54 N.M, 5, 212 P.2d 1041, 1047, 

11 wherein it was said the probability of its [a man's future 

earning capacity] increase or decrease in the future ought to be 

admitted." If it is admitted, it ought to be considered by the 

jury. Surely here, the defendant had as much opportunity to 

refute the future wage increase of a railroad section hand as the 

plaintiff had the opportunity to prove it. 

The Alaska Supreme Court in a recent non-Federal Employers' 

Liability Act case, Beaulieu v. Elliott, (Alaska 1967), 434 P.2d 

665, 671, considered the subject of future wage increase: 

"Annual inflation at a varying rate is and has been 

with us for many years. There is no reason to expect 

that it will not be with us in the future. This rate 

:~f depreciation offsets the interest that could be 

1 earned on government bonds and many other safe' investments. As a result the plaintiff, who through 

no fault of his own is given his future earnings reduced to present value must, in order to realize his 

full earnings and not be penalized by reduction of 

future earnings to present value, invest his money in 

dnter rises, other than those which are considered I: 'safe investments, which promise a return in interest 

Jr dividends greater than the offsetting rate of annual 

inflation. I I 

no 

There can belquestion that the award in the instant case 

was a generous one, but not so generous as to take it out of the 

realm of possibility presented by the evidence. It is not for 

this Court to determine the award to be given to plaintiff, but 

only whether the jury had a reasonable basis, supported by the 

evidence, to award the sum. We believe the jury had that basis. 

Plaintiff contends defendant's failure to object to certain 

jury instructions waived the defendant's right to later complain. 

The specific instructions referred to were (1) Instruction No. 26, 

regarding what the jury might consider in awarding damages, and 

(2) Instruction No. 34, the special verdict form. Defendant 

awaited the jury's verdict before asserting, in defendant's motion 

for entry of judgment, that the jury should not have been allowed 
to speculate on future wage increases and that the special 

interrogatories were improperly worded. It is fundamental that 

failure to object to the giving of instructions at trial precludes 

raising the issue on appeal. In this case defendant raised the 

issue to the trial judge after the jury had rendered its verdict. 

We cannot allow defendant to wager on the outcome of the jury's 

deliberation before availing itself of the proper procedural 

remedies. Since the objection cannot be raised on appeal, then, 

likewise, it cannot be raised at the post-trial level. 

Plaintiff raises the issue of interest on the judgment 

contending that since defendant's deposit into the bank account 

did not include the interest from February 10, 1971, as agreed, 

then the deposit did not satisfy the statute and interest continued to run. The statute, section 58-423, R.C.M. 1947, reads: 

I I An obligation for the payment of money is extinguished by a due offer of payment, if the 

amount is immediately deposited in the name of 

the creditor, with some bank of deposit within 

this state, of good re ute, and notice thereof is 

~iven to the creditor. R 

?laintiff relies on the word obligation, implying that its 

deiinition includes all interest to the date of deposit. Plaintiff had, prior to the date of deposit, refused tender of the deposited amount on the same ground--that interest from February 10, 

1371 was not included. Plaintiff, however, is merely arguing rhetoric, 

Uefendant in good faith made an attempt at substantial compliance 

with the statute in order that future interest would not continue 

tu increase. The trial court's ruling in the first amended judgment, 

that the defendant pay interest on the $91,740.49, from February 
10, 1971 to Nay 24, 1971, shall remain in effecc, The result 

is that all interest on that amount terminated on May 24, 1971, by 

the terms of the statute and by order of the trial court. 

Our decision reinstates the jury's award of $175,000, less ten 

percent for Resner's contributory negligence, resulting in a judgment of $157,500. The rules for interest on judgments were correctly 

stated by the California Supreme Court in Stockton Theatres, Inc. 

v. Palermo, 55 Cal.2d 439, 11 Cal.Rptr. 580, 582, 360 P.2d 76: 

"A judgment bears legal interest from the date of 

its entry in the trial court even though it is still 

subject to direct attack. 9: * When a judgment is 

modified upon appeal, whether upward or downward, the 

new sum draws interest from the date of entry of the 

original order, not from the date of the new judgment. ;I< 9; -f. 

db On the other hand, when a judgment is reversed 

on appeal the new award subsequently entered by the 

crial court can bear interest only from the date of 

entry of such new judgment. 1 I 

The second rule enunciated is applicable here. 

This cause is returned to the district court to compute 

the interest to be granted in accordance with the law, not inconsistent with this decision. 

/ 

/ ysociate Justice 

' / Chief Justice 

................................. Associate Justices. 
Mr. Justice Wesley Castles dissenting: 

L dissent. The majority opinion states thac the jury 

rerurned a verdict in the amount of $175,000. This is not 

1-egally accurate. Rather, the jury answered a special verdict 

4 

question in that amount. And, as the trial court carefully 

pointed out in its closing remarks, the jury was to answer only 

Che specific questions posed in the special verdict. The court, 

not the jury, was to make the determination of final damages 

and enter judgment accordingly. As provided in the Montana Rules 

of Civil Procedure, if a matter is submitted to the jury in the 

form of a special verdict an issue not specifically included in 

the special verdict may be decided by the court, and each party 

is deemed to have waived its right to trial by jury on that 

specific issue. 

The vice of the majority opinion is that it approves 

speculative, highly speculative, inflation trends for thirty 

years as to future wage increases. Speculation on the future 

of railroads, much less the future of jobs and wage increases, 

is a never-never land. Except for one Federal District Court 

case, Scruggs v. Chesapeake and Ohio Railway Company, 320 F.Supp. 

1248, I have been unable to find any Federal Employers' Liabi1i.t~ 

Act case to support the majority opinion. I believe the correct 

law to be that stated by the 6th Circuit in 1969 in Sleeman v. 

Chesapeake 6 Ohio Railway Company, 414 F.2d 305,308, where that 

court sai.d: 

I1 Nor do we encourage the trial courts of our 

circuit to explore such speculative influences 

on future damages as inflation and deflation. 

"Of course, the nation's economic hlstory since 

the 1930's would appear to make the use of 

present wages as the standard for loss of future earnings somewhat unfair to plaintiffs . 8ut as to the future, the inflation versus deElation debate rages inconclusively at the 

highest policy levels of our government, in 

national electoral campaigns, in learned eco110mi.c journals and is exemplified in the daily 

syrations of the stock markets. The debate 

seems unlikely to be resolved satisfactorily 
in one personal tnjury trial. And ir testimonial resolution of this factor bearing on the 

future is attempted, the door is opened to 

similarly speculative and debatable offsets 

tending in other directions. See McWeeney v. 

New York N.H. & H.R.R., 282 F.2d 34 (2d Cir. 

1960). If 

In Sleeman the court found the following quotation from 

2 Harper & James, The Law of Torts, 5 25.11, to be applicable: 

11 1 Future trends in the value of money are necessarily unlcnown and so always render such damages 

speculative in a way we cannot escape. If the 

estimates represent a straight-line projection 

of present living costs, they will be frustrated 

by fluctuations either way. If prophecy of change 

is heeded, frustration will follow if no change, 

or the opposite change, occurs. When courts have 

con~c~ously grappled with the problem they have 

either found all prophecy too speculative and so, 

perforce, have taken the equally speculative 

course of betting on a continuance of the status 

quo; or they have made intuitive and not always 

very wise judgments that present conditions represent a departure from some imaginary norm to 

which they thinlc we shall rapidly return. It is 

not at all clear that courts would be willing to 

hear experts on the matter, or that they would 

get much real help if they did. For the most part 

che problem--which is inevitably present in every 

case of future loss--is not analyzed and the present value of money is assumed to be the proper 

basis. 1 I1 

Sleeman was confirmed by the 6th Circuit in 1970 in 

Peticion of United States Steel Corporation, 436 F.2d 1256, 1280: 

"It is equally well settled in this Circuit that 

the prospect of a future decline in the purchasing 

power of the dollar may not be used to offset the 

reduction to present value. I1 

L would affirm the judgment. 

~ssocibde Justice.