Dawson v. Hill & Hill Truck Lines

IN THE SUPREME COURT OF THE STATE OF MONTANA

JAMES H. DAWSON, Individually,
DOLORES J. DAWSON, Individually,
JAMES H. DAWSOlJ as Personal Representative,
Plaintiffs and Petitioners,

-vs-
HILL & HILL TRUCK LINES,
Defendant and Respondent.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Petitioners:

Hoyt & Trieweiler; John C. Hoyt, Great Falls,
lvlontana

For Respondent:
Robert J. Emrnons, Great Falls, Montana

-
"
-

Submitted on Briefs: June 30, 1983
Decided: October 21, 1383

Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
By declaratory relief, petitioners request this Court to
answer the following question certified by the United States
District Court for the District of Montana, Great Falls
Division:
"Are damages for the sorrow, mental distress or
grief of the parents of a deceased minor
recoverable in a wrongful death action brought
pursuant to section 27-1-512, MCA, 1979?"
This is a wrongful death action arising out of a
five-vehicle crash which occurred on a snowy day in January,
1982, on U.S. Highway 87 between Belt and Great Falls,
Montana. The petitioners, James H. Dawson and Dolores J.
Dawson, allege that a driver for the defendant, Hill & Hill
Truck Lines, attempted to pass two vehicles even though the
weather conditions made it impossible for him to see traffic
approaching from the opposite direction. Before the driver
could return to his lane of traffic, petitioners allege that
his loaded and protruding flatbed trailer was struck by a
gasoline tanker truck, which was proceeding from the opposite
direction. The petitioners' son and daughter were in one of
the cars being passed. As a result of the accident, the
Dawsons' seventeen-year old son was killed and a daughter was
injured .
The deceased was the petitioners' only son. Petitioners
allege he was an outstanding individual and student who would
have been the valedictorian of his graduating high school
class had he lived another four months. By this request for
declaratory relief, the petitioners have asked this Court to
recognize that "just" damages authorized by statute include
the mental distress and anxiety suffered by petitioners as a
result of the wrongful death of their son.
 The statute governing damages which may be awarded in
an action brought under section 27-1-512, MCA, is section
27-1-323, MCA, which provides:
"In every action [for wrongful death], such damages
may be given as under all the circumstances of the
case may be just. "
Montana has not allowed wrongful death awards to be
unrestricted. Rather, we have followed the pecuniary loss
rule, although recovery is permitted for loss of society and
companionship to the extent such loss has a pecuniary value.
Mize v. Rocky Mountain Bell Telephone Co. (1909), 38 Monk.
521, 100 P. 971; Hollingsworth v. Davis-Daly Estates Copper
co (1909), 38 Mont. 143, 99 P. 142.
The majority of jurisdictions has consistently refused
to permit recovery for mental anguish in a wrongful death
action. In so doing, these jurisdictions have followed the
English decision rendered in Blake v. Midland Railway Co. (QB

Prior to the Blake decision, the British Parliament
enacted Lord Campbell's Act which, in pertinent part,
provided :
" [W]henever the death of a person shall be caused
by wrongful act, neglect, or default ...
such as
would have entitled the parties injured to maintain
an action and recover damages in respect thereof,
then and in every such case the person who would
have been liable if death had not insued shall be
liable . . .[Alnd in every such action the jury
may give such damages as they may think
proportioned to the injury resulting from such
death to the parties respectively for whom and for
whose benefit such action shall be brought ." . .
Fatal Accidents Act, 1846, 9 & 10 Vict. c. 93.
Lord Campbell's Act was Parliament's attempt to
ameliorate the harshness of a decision by Lord Ellenborough
who, in Baker v. Bolton (KB 1808), 170 Eng.Rep. 1033, held
that at common law there could be no recovery for the
wrongful death of a person.
 Lord Campbell's Act, like the Montana statute governing
wrongful death damages, seemed to provide for all damages as
were found by the jury to be just. However, the English
courts soon imposed the limitations first defined in Blake.
John Blake was killed when two of the defendant's trains
collided. Liability was admitted and the case proceeded to
trial on damages. The trial judge instructed the jury that
the might, in addition to awarding loss of support, also
compensate the widow for her emotional pain. The appellate
court reversed the plaintiff's judgment, holding that the
jury had been improperly instructed on damages. The court
stated: "The title of this Act may be some guide to its
meaning: and it is 'An Act for Compensating the Families of
Persons Killed;' not for solacing their wounded feelings
. . ." Blake, 118 Eng.Rep. 35 at p. 42. The court seemed to
feel that a more expansive rule would be impossible for the
jury to apply. The court said:
"[Tlhe measure of damages is not the loss or
suffering of the deceased, but the injury resulting
from his death to his family. This language seems
more appropriate to a loss of which some estimate
may be made than to an indefinite sum independent
of all pecuniary estimate to soothe the feelings

"We conceive that the Legislature would not have
thrown upon the jury such great difficulty in
calculating and apportioning the solatium to the
different members of the family without some rules
for their guidance." Blake, 118 Eng.Rep. 35 at p.
43.
The English rule has been followed by most American
jurisdictions. See 1 Speiser, Recovery for Wrongful Death,
(2d Ed. 1975), 3 : Prosser, The Law of Torts (4th Ed.

Blake must be read and understood in its historical
context. The social policies existent in 1852 England and
which may have influenced the court were traced by the
Supreme Court of Michigan in Wycko v. Gnodtke (1960), 361
Mich. 331, 105 N.W.2d 118:
" . . .The rulings reflect the philosophy of the
times, its ideals, and its social conditions. It
was the generation of the debtor's prisons, of some
200 or more capital offenses, and of the public
flogging of women. It was an era when ample work
could be found for the agile bodies and nimble
fingers of small children ...
"This, then, was the day from which our precedents
come, a day when employment of children of tender
years was the accepted practice and ther (sic)
pecuniary contributions to the family both
substantial and provable ...
"That this barbarous concept of the pecuniary loss
to a parent from the death of his child should
control our decisions today is a reproach to
justice. We are still turning, actually, for
guidance in decision, to 'one of the darkest
chapters in the history of childhood. ' Yet in
other areas of the law the legal and social
standards of 1846 are as dead as the coachman and
his postilions who guided the coaches of its
society through the dark and muddy streets, past
the gibbets where still hung the toll of the day's
executions." (citations omitted) 105 N.W. 2d at
pp. 120-121.
The English court in Blake articulated the rule's
rationale to be the certainty of loss estimation. The
underpinnings of the rule were discussed by a Federal
District judge in In Re Sincere Navigation Corp. (E.D.La.

"Human experience, as well as the literature of
psychiatry and psychology bear abundant evidence of
the debilitating effect of grief and the resultant
depression. It is certainly no less real, and no
more difficult to appraise, than the 'mental and
physical pain and suffering' attendant upon
personal injury that is awarded those who survive,
or the pain and suffering prior to death that is
recoverable as part of the death action here. . ."
(citations omitted) 329 F. Supp at p. 656.
Montana, unlike many jurisdictions, allows recovery in a
wrongful death action for loss of care, comfort, society and
companionship, holding that the speculative nature of such
awards is no objection. Burns v. Eminger (1929), 84 Mont.
397, 276 P. 437. In Davis v. Smith (19681, 152 Mont. 170,
448 P.2d 133, this Court said:
"As to the third item, loss of society, comfort,
care and protection . . .
no extensive proof was
made except that the son was a normal child. It is
obvious that to put a monetary value on this is
something solely within the province of the jury."
152 Mont. at p. 174, 448 P.2d at p.135.
Although Montana has consistently adhered to the
requirement that the loss of society and companionship be
susceptible of "pecuniary loss" translation, this Court has
refused to require a yardstick for measurement? If a jury
can evaluate the intangible loss suffered from not having the
decedent's care, comfort and companionship, surely that same
jury can be trusted to ascribe damages to grief.
The remaining argument advanced for denying expansion of
the rule lies embedded in stare decisis. A rule whose
ancestral origins are rooted in Charles Dickens' England does
not square with the tort principles of our time.
Chief Justice Haswell, dissenting in Consolidated
Freightways Corp. v. Osier (1979), Mont . , 605
P.2d 1076, 36 St.Rep. 1810, stated eloquently a refutation
for blind adherence to the English common law:
"The source of the rule ..
. is the English common
law . . .
Being a rule of the common law, it is
purely judge-made law. Judges created the rule by
judicial decision, and judges can change it in the
same manner . . .
This approach is now as extinct
as the dodo. Montana's 1972 Constitution
guarantees access to the courts to all persons and
speedy recovery afforded for every injury of
person, property or character. Art. 11, Sec. 16,
1972 Mont. Const. When the reasons for the rule no
longer exist, the rule itself fails. Section
1-3-201, MCA. Mont. at p. , 605 P.2d at
pp. 1082-1083, 36 St.Rep. at p. 1818.
Justice Cardozo, in his singular style, wrote:
"If judges have woefully misinterpreted the mores
of their day, or if the mores of their day are no

l ~ o ran excellent discussion of Montana cases, see Strong
and Jacobsen, Such Damages - - Just: A Proposal - -
as are for More
Realistic Compensation - Wrongful Death Cases, 43 Mont. L.
in
Rev. 55 (1982).
 longer those of ours, they ought not to tie, in
helpless submission, the hands of their successor."
-
B. Cardozo, The Nature of the Judicial Process 152
7 -

(1921).
Other jurisdictions have begun to flee the constraints
imposed by Blake. Prior to 1970, Arizona had construed its
Wrongful Death Act to allow for the same type of recovery
permitted in Montana, including expanding the pecuniary loss
rule to embrace compensation for loss of care, comfort and
society. City of Tucson v. Wondergem (1970), 105 Ariz. 429,
466 P.2d 383, afforded the Arizona Supreme Court an
opportunity to shed the vestiges of English common law:

"There can be little argument against allowing
damages 'resulting from the death' for 'anguish,
sorrow, stress, mental suffering, pain and shock,'
under the facts of the instant case, where we have
held, as in Boies v. Cole [ (1965), 99 Ariz. 198,
407 P.2d 9171, that damages for loss of
companionship, comfort and guidance are
recoverable. The loss of companionship and comfort
certainly results in sorrow, and the failure to
permit such recovery falls short of 'fair and just'
standards set forth in [our statute] . . ."
466
P.2d at p. 387.
Petitioners' brief relies upon the concurring opinion
filed in Bedgood v. Madalin (Tex. 1980), 600 S.W.2d 773. In

that case Justice Spears quoted Lambert, Rheingold & Joost,
Recent Important Tort Cases 30 N.A.C.C.A.L.J.

"It is hard to distinguish the deep emotional
wounding of the bereaved parent from the physical
pain and mental suffering of the plaintiff with
bodily injury, or the loss of enjoyment of one who
can no longer engage in sports or favorite
activities, or the loss of consortium by the spouse
of an injured victim." 600 S.W.2d at p. 779.
Petitioner also points to Stanford v. McLean Trucking
Co. (E.D. Texas 1981), 506 F.Supp 1252, wherein a federal
judge predicted that Texas would follow Justice Spears'
concurrence.
Respondent counters by arguing the majority of the Texas
court held mental anguish, sorrow, or grief were not
recoverable and limited recovery to pecuniary damages.
Respondent further states on page 44 of its brief:
" .. . The prediction by the Federal Court in
Stanford v. McLean Trucking Co., 506 F.Supp. 1252,
1259 that Texas would follow the concurring opinion
in Bedgood is bizarre when the majority opinion
denied the recovery of these damages. In fact,
Bedgood recognized that any change on this issue
must essentially come from legislation."

The Texas debate has been answered in an opinion issued
April 27, 1983, rehearing denied June 15, 1983. The Supreme
Court of Texas has overruled all prior decisions and decreed
that damages for mental anguish will be permitted in a
wrongful death action instituted by a parent for the death of
a minor child. Sanchez v. Schindler (Tex. 1983), 651 S.W.2d

The Texas court addressed the question of whether the
judiciary should await legislative action. The court said:
"The legislature has attempted to amend the Texas
Wrongful Death Act to allow damages for loss of
society and mental anguish; however, none of the
bills have passed. This court should not be bound
by the prior legislative inaction in an area like
tort law which has traditionally been developed
primarily through the judicial process. Green,
Protection of the Family under - - Tort Law, 10
Hastinas L.~'-r 3 7 245 (1959).
2 In his article,
Dean ~;een stated 'that because the difficulties in
reducing the refinements of tort law doctrines into
statutory form often result in legislation which is
either underinclusive or overbroad and which is
frequently couched in ambiguous terms which the
court must interpret, judicial decision is the best
way to develop tort law. Id. at 246. Inaction of
the legislature c a n n o t be interpreted as
prohibiting judicial reappraisal of the judicially
created pecuniary loss rule . . ."
651 P.2d at 252.
An English court in the 1852 Blake case judicially
restricted a legislatively granted remedy. The courts which
followed that lead should, one-hundred thirty-one years
later, be free to apply a more fitting interpretation.
Montana allows the estate of a decedent to recover damages
for the decedent's pain suffered prior to death. Surely a
jury which can lawfully weigh such intangible damage can be
trusted to fairly compensate for the grief suffered by the
survivors.
The same day that this opinion is being released
another opinion from this Court is being released answering
a certified question from the United States District Court
in a case entitled Sharon K. Versland, Individually, as
Personal Representative of the Estate of Bert Martin Versland,
Deceased, and as Next Friend of Michelle Louise Jones and
Laura Korpela, Minor Children, vs. Caron Transport. In the
Versland case, this Court, for the first time, recognizes
a cause of action for negligent infliction of mental and
emotional distress. The opinion in this case, for the first
time, allows recovery for mental distress damages in a
wrongful death action. The two are not to be confused. A
negligent infliction action, such as the one recognized in
Versland, supra, compensates for mental distress from having
witnessed an accident. The mental distress for which
recovery can be sought under the rationale of Dawson, is
limited to mental anguish, sorrow or grief resulting from
the death. The two actions are distinct and separate. If
the two actions are joined in one case then damages for the
negligent infliction of mental and emotional distress must
be limited to those damages caused by the witnessing of the
accident. Damages awarded for mental distress as the result
of wrongful death must be limited to the damages which are
caused by the loss of the decedent's life.
We hold that damages for the sorrow, mental distress or
grief of the parents of a deceased minor are recoverable in a
wrongful death action brought pursuant to section 27-1-512,
MCA. Any previous Montana decisions, to the extent they
conflict with this holding, are

We concur:
.. .. .Chief JustYce W d d @
~.h ' & &
I '-

J u s t i c i Harrison deems himself disqualified and did not
participate.
Mr. Justice Fred J. Weber respectfully dissents as follows:
In its opinion the majority concludes by overruling any
previous Montana decisions which are in conflict, without
analyzing the same. I do not agree with that procedure. The
majority is making a significant change in the case law of
this state and should specify the decisions being modified or
overruled.
Sanchez v. Schindler (Tex. 1983), 651 S.W.2d 249 is the
Texas case cited as authority in the majority opinion. The
Texas Supreme Court listed in a footnote the cases it
overruled. Sanchez, 651 S.W.2d 249, 251 n.2.
historical perspective, the majority opinion refers
to the 1852 Blake decision and other 19th century cases from
England. No reference is made to California, the state from
which Montana adopted its wrongful death statute. In
addition to the English cases, reference is made to case law
from Michigan, Louisiana, Arizona and Texas. I believe the
cases from Michigan, Louisiana and Arizona are clearly
distinguishable, but will not discuss them in detail. In
VJycko v. Gnotke (1960), 361 Mich. 331, 105 N.W.2d 118, 122,
the Michigan Supreme Court held that the pecuniary value of a
child's companionship was recoverable. In 1968, this Court
reached the same conclusion, modified the strict pecuniary
loss rule which had originated from Lord Campbell's Act, and
allowed recovery for loss of a child's society, comfort, care
and protection. See Davis v. Smith (1968), 152 Mont. 170,
174, 448 P.2d 133, 135. I found no Michigan authority
allowing recovery for grief and sorrow of a survivor. The
Louisiana and Arizona case law appear inapposite since the
Louisiana code specifically allows recovery for "grief,
mental anguish, and distress" and the Arizona Constitution
specifically prohibits any limitation on recovery in wrongful
death cases. See La. Code Civ. Proc. Ann., Forms 321 & 325;
Ariz. Const. art. 2, 531.

The Texas case of Sanchez is discussed at length by the
majority. One of the problems of using that case as
authority is best stated by Chief Justice Pope, who noted in
his dissent in Sanchez that the majority failed to:
". . .cite a single case in which a court has
authorized damages for mental anguish by overruling
a longstanding statutory construction that has been
ratified by legislative reenactment " 651 . . ..
S.W.2d at 257.
The Montana Legislature has met a number of times since the
1877 enactment of what today is section 27-1-323, MCA. The
Legislature has not seen fit to modify this Court's
interpretation of that statute by amendment or otherwise. In
Sanchez, Chief Justice Pope noted that aside from the Supreme
Court of Texas, only eleven states have permitted recovery
for mental anguish of survivors in wrongful death cases. Ten
of those eleven states have allowed recovery by legislative
action. See Sanchez, 651 S.W.2d 249, 257 n.6. This is a
strong argument for leaving to the Montana Legislature the
decision which the majority is making here.
The trend to allow recovery for grief, sorrow and mental
distress in wrongful death cases appears to be legislative,
rather than judicial. I note that in the Pacific Reporter
region, nine states including Montana have statutes allowing
such damages as are just. Alaska Stat. S09.55.580 (fair and
just) ; Cal.Civ.Proc. Code S377 (a) (just); Hawaii Rev. Stat.
5663-3 (fair and just); Idaho Code 55-311 (just); section
27-1-323, MCA (just); N.M. Stat. Ann. S41-2-3 (fair and
just); Utah Code Ann. S78-11-7 (just); Wash. Rev. Code
54.20.020 (just). washington has, by statutory amendment,
allowed recovery for injury to or destruction of the
parent-child relationship. Wash. Rev. Code 54.24.010. This
statute has been judicially interpreted to include recovery
for grief. Kansas, Nevada and Oklahoma statutory law
specifically permit such recovery. Kan. Stat. Ann 560-1904
(mental anguish, suffering or berievement) ; Nev. Rev. Stat.
541-090 (grief or sorrow); Okla. Stat. Ann. title 12 51053
(grief). California, from which Montana adopted its wrongful
death statute, has not amended its statute and has refused to
allow recovery for grief and sorrow by judicial decision.
Krouse v. Gra.ham (1977), 19 Cal.3d 59, 73, 562 P.2d 1022,

1028, 137 Cal.Rptr. 863, 869. This suggests the wisdom of
allowing the Legislature to determine if public policy has
changed and whether recovery for mental distress, grief and
sorrow requires abandonment in Montana of longstanding

statutory construction that is consistent with that of other
jurisdictions with similar legislation.
The majority opinion does not state if it is modifying
or abandoning the pecuniary loss rule in Montana, as was done
in Sanchez by the Texas Court. If the rule has not been
abandoned, will substantial evidence of the pecuniary value
of the loss of companionship and society still be required in
Montana? Will a different standard be applied to measure
damages recoverable for loss of companionship and damages
recoverable for grief and sorrow?
I am unable to distinguish between mental or emotional
distress recoverable in a wrongful death case (Dawson) and
mental or emotional distress recoverable in a negligent
infliction of emotional distress case (Versland). Our
Versland decision is based upon the California case of Dillon
v. Legg (1968), 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72.
In Dillon, the California Supreme Court allowed recovery for
emotional distress suffered by a mother who witnessed her
daughter being struck and killed by a motorist. That case is
factually comparable to Versland, where the wife watched the
collision in which her husband was killed. Dillon and
subsequent California cases have allowed recovery by
bystanders for emotional distress suffered as a result of
witnessing or hearing the accident with damages including
mental and emotional distress suffered after the victim's
death. Note that California does not, however, allow
recovery for grief, sorrow or mental distress in a case like
Dillon.
In seeking to analyze Versland in relation to Dawson,
the majority points out that if the action for mental
distress from having witnessed the accident is combined with
a wrongful death action for mental anguish, sorrow and grief,
then the recovery under Versland is limited to the damages
caused by witnessing the accident but does not include the
mental distress resulting from the death. That concept
suggests that there is a line between the emotional distress
suffered from witnessing an accident that results in the
instantaneous d.eath of a loved one, and the emotional
distress suffered from sorrow and grief that follows the
death. I do not understand that distinction and would be