Although I deplore the necessity, I feel impelled again, as inYellowstone County v. Wight, ante p. 411, 145 P.2d 516, to dissent separately in order to point out what seem to me the essential errors of the majority and also to emphasize the fact that as in the Wight case and as in In re Irvine's Estate (Wild v. Hall), 114 Mont. 577, 139 P.2d 489, 147 A.L.R. 882, the majority dispose of the present controversy without expressly reversing the law although they badly unsettle it. While three members concur in the disposal of the case, the form of one member's concurrence, as in the two cases mentioned above, does not fully indicate in what respects he agrees with the extended treatise signed by the other two members constituting the majority. Thus the bench and bar cannot know what the majority of this court think the law is, or ought to be, but only that it does not consider that the law is, or ought to be, as declared by this court during more than half a century.
As the majority decision points out, the territorial legislature *Page 497 in 1871, nearly three-quarters of a century ago, altered the defendant's "ancient and valuable right" to be sued in the county of his residence, by providing that actions in general shall be tried either in that county "or where the plaintiff resides, and the defendants, or any of them, may be found;" thus, as to the defendant, making the test not merely his residence, but his "residence or whereabouts," as the court said in State ex rel.Interstate Lumber Co., infra; at the same time it provided that "actions upon contracts may be tried in the county in which the contract was to be performed, and actions for torts in the county where the tort was committed." Those provisions have since been re-enacted and carried through the successive compiled and revised codes without amendment, and now appear as section 9096, Revised Codes of 1935. It must be emphasized that in the latter provision there is only one "may" and that whatever its meaning as applied to contract actions must also be the same as applied to tort actions.
In State ex rel. Interstate Lumber Co. v. District Court,54 Mont. 602, 172 P. 1030, 1031, this court in a unanimous opinion written by Mr. Chief Justice Brantly, after referring to the first provision of the section, making venue in general dependent upon where the defendant resides, or where the plaintiff resides and the defendant may be found, said with reference to the special provision relative to contract and tort actions:
"The last sentence, however, excepts out of the application of this general provision, actions upon contracts and actions for torts, and requires the place of trial in these cases to be determined by considerations wholly apart from the residence or whereabouts of the defendant. In the one case, the place of trial is determined by an answer to the inquiry, Where was the contract to be performed? And in the other, Where was the tort committed? * * *
"To determine, then, whether an action in either of these two classes has been commenced in the proper county, the only question the court may consider and determine is where, in the one case, the contract was to be performed, or, in the other, where *Page 498 the tort was committed. As will appear below, our own decisions are not in harmony, but in two of them at least this court impliedly adopted the construction we have given the last sentence of the section, by refusing to recognize the residence of the defendant as a material consideration. (Oels v. Helena Livingston Smelting R. Co., 10 Mont. 524, 26 P. 1000;State ex rel. Coburn v. District Court, 41 Mont. 84,108 P. 144.)"
Ever since that decision was promulgated in 1918, twenty-six years ago, it has been the recognized law that the residence of the defendant has nothing to do with the venue of actions upon torts, or upon contracts the place for performance of which could be determined. Whether or not the Oels decision cited there constitutes valid authority to the same effect, it clearly held that the place of performance need not expressly appear by the terms of the contract. That decision was promulgated in 1891, fifty-three years ago. Since that time twenty-six regular legislative sessions (all but the first two since statehood) and numerous special sessions have been held without any legislative action to change the statute as so interpreted by this court. Nevertheless, the majority decision above proposes to change the law by now holding that a defendant is not necessarily entitled to have a tort action tried in the county where the tort was committed or a contract action in the county in which the contract was to have been performed, but that there are two other "proper counties" for the trial under the general provision, namely the county where the defendant resides, and the county where the plaintiff resides and the defendant may be found; and that the latter are the only proper counties for the trial of a contract action unless the place for performance appears by the terms of the contract. By this holding the majority limits the effect of the special provision to express contracts which expressly provide for the place of performance, thus adding a requirement which the legislature omitted. The majority thus destroys the certainty with which bench and bar are entitled to regard a statute of seventy-three years' standing and the judicial precedents of more than half a century, covering virtually Montana's entire period of statehood. *Page 499 The majority's expressed reason is that this court was wrong fifty-three years ago and has been wrong ever since; but under the circumstances it would seem that in the absence of legislative amendment the bench and bar should be justified in regarding as definitely settled the propositions (1) that the only proper county for the trial of a contract or tort action is the county where the contract was to be performed or the tort was committed, (2) that the word "contract," being used in the statute without limitation or qualification, includes all contracts, without limitation or qualification; (3) that the place for performance need not be specifically stated in the contract, since the legislature did not so provide; and (4) that the courts should therefore determine the place of performance by reference to the nature of the contract, the circumstances under which it was made, and the law generally applicable to place of performance of contracts, including the law as to tenders. Certainly, in the absence of express contractual provisions to the contrary, the latter indicates the lawful place for the performance of a contract to pay money, as this court held in theCoburn case, supra, in 1910, thirty-four years ago.
I cannot concur in the belief that all these well-established propositions should be overturned. If they are overturned, the plaintiff may bring a tort action either where a defendant resides, or where the plaintiff resides and a defendant can be found, or where the tort was committed; and the cause cannot be removed from whichever county he selects, since it cannot be characterized as "not the proper county," so as to entitle the defendant to a change of venue under section 9097. The same will be true of contracts which expressly provide for a place of performance. But for the immensely greater number of contracts which are not express, or which do not expressly provide for the place of performance, the legislative provision will have nothing to do with venue, and the choice of counties will be governed entirely by the first sentence of section 9096. Perhaps that should be the law, but few members of Montana's bench and bar now believe that it is the law. *Page 500
It may well be that our predecessors erred in practically all venue decisions of the last fifty-three years, and that if the questions now came before us as matters of first impression we should decide otherwise. But if this court has been wrong throughout that period with reference to the venue of tort and contract actions, the errors include the unanimous decision made by this court only eight months ago in Maio v. Greene,114 Mont. 481, 137 P.2d 670, 671, which held that "the proper county" for the trial of a tort action was the county "where the tort was committed." The record in that case showed without controversy that all parties plaintiff and defendant resided in Missoula county and that at least one of the defendants was served there. But neither litigants nor courts considered residence of parties as relevant, and this court held that the case should be removed to Lake county, where the tort was alleged to have been committed. If the majority decision above is correct, under section 9096 the proper place of trial was the county (1) where the defendants resided, which was Missoula county, or (2) where the plaintiff resided and at least one of the defendants was found, which again was Missoula county, or (3) where the tort was committed, which was Lake county. Since, under that view, Missoula county was a proper county for trial under both the first and second provisions of section 9096, it must have been error to remove the cause to Lake county for trial; for the statutes do not authorize the transfer from one proper county to another except under the last three subdivisions of section 9098, Revised Codes, which were not applicable to the case. Although the undersigned wrote the decision in Maio v.Greene, it was concurred in without question or comment by the entire court as now constituted. Certainly if the individual views of the momentary majority of the court, rather than established principles and precedents, are to govern each case coming before it for decision, the bench and bar are entitled to rely upon some consistency in those individual views for at least eight or nine months.
Under the circumstances I feel justified in quoting here from a dissenting opinion by Mr. Justice Roberts, concurred in by Mr. *Page 501 Justice Frankfurter, who, to say the least, can hardly be considered a fanatical stickler for precedent. In Mahnich v.Southern Steamship Company, 64 S.Ct. 455, 463, promulgated as recently as January 31, 1944, the dissent said:
"The evil resulting from overruling earlier considered decisions must be evident. In the present case, the court below naturally felt bound to follow and apply the law as clearly announced by this court. If litigants and lower federal courts are not to do so, the law becomes not a chart to govern conduct but a game of chance; instead of settling rights and liabilities it unsettles them. Counsel and parties will bring and prosecute actions in the teeth of the decisions that such actions are not maintainable on the not improbable chance that the asserted rule will be thrown overboard. Defendants will not know whether to litigate or to settle for they will have no assurance that a declared rule will be followed. But the more deplorable consequence will inevitably be that the administration of justice will fall into disrepute. Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy.
"Of course the law may grow to meet changing conditions. I do not advocate slavish adherence to authority where new conditions require new rules of conduct. But this is not such a case. The tendency to disregard precedents in the decision of cases like the present has become so strong in this court of late as, in my view, to shake confidence in the consistency of decision and leave the courts below on an uncharted sea of doubt and difficulty without any confidence that what was said yesterday will hold good tomorrow, * * *."
While the question in the Mahnich case was substantive rather than procedural, what was there said about the disregard of precedents is fully applicable here. In addition we have here the unusual spectacle of a present majority completely reversing itself in less than a year, and of doing it in such a way as to unsettle, without definitely resettling, the law. Hence this separate dissent. *Page 502