Dunham v. Southside National Bank of Missoula

MR. JUSTICE HASWELL

(specially concurring):

I concur in all that is said in the majority opinion, but would add a short response to the dissenting opinion.

The issue is not “which argument is morally sound and just” as stated in the dissent. Neither party nor amicus contends' this . is the issue. If Montana’s comparative negligence statute is not substantive as the dissent concludes, it is difficult to follow just how a mere procedural rule can be justified on moral grounds.

The issue is whether the Montana legislature intended to give our comparative negligence statute retroactive effect. The dissenting opinion does not cite a single rule of statutory construction to support such an intention by the Montana legislature. It only states that “the better reasoned and more desirable” philosophy of retroactivity is set forth in the Washington case of Godfrey v. State, 84 Wash.2d 959, 530 P.2d 630; the California case of Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226; and the Minnesota case of Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353. All three cases are distinguished from the situation in Montana in the majority opinion.

Additionally the supposed confusion that would result from prospective rather than retroactive operation does not square with Montana experience. For decades Montana trial courts and juries have been hearing accident cases involving comparative negligence under FELA during the same jury term as other accident cases involving contributory negligence principles without incident. This basis is nothing but a puff of smoke.

If the Montana legislature really intended to alter the *479liability of parties to accidents that occurred prior to the passage of our comparative negligence statute, it would have been a simple matter to say so. This Court’s function is to construe the law as it finds it, not to insert what has been omitted. Section 93-401-15, R.C.M.1947; Dunphy v. The Anaconda Company, 151 Mont. 76, 438 P.2d 660, and cases cited therein.