PIo. 83-370
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
PATRICIA D. JOHNSON, as Personal
Representative of the Estate of
TERRY L. JOHNSON, and as Guardian
Ad Litem for SUSAN P. and ROBIN
J . JOHNSON, blinors,
Plaintiffs and Appellants,
-vs-
LWRIAS RIVER ELECTRIC COOPERATIVE ,
INC., a public utility; and EDWIN
VANDER PAS, d/b/a VANDER PAS OIL
CO. ,
Defendants and Respondents.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable Bernard W. Thomas, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Terry N. Trieweiler argued, Whitefish, Montana
For Respondents:
Robert Emmons argued for Vander Pas, Great Falls,
Montana
Edward W. Borer argued for Marias River, Great Falls,
Montana
Constitutional Challenge:
Hon. Mike Greely, Attorney General, Helena, Montana
Submitted: March 5 , 1984
Decided: August 14, 1984
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The issue in this case is whether minor children of a
decedent who is survived by his spouse are proper parties in
a wrongful death action after the enactment of sections
72-1-1.03(18), and 72-2-202, MCA, of the Uniform Probate Code.
We hold that the issue of a decedent who is survived by
his spouse may maintain an action for damages under section
27-1-513, MCA.
The conflict in the statutes arises in this way: The
wrongful death statute, section 27-1-513, MCA, provides that
in case of the wrongful death of an adult "his heirs, or
personal representatives" may maintain an action for damages
against the person responsible. The Uniform Probate Code now
defines "heirs" as those who are entitled to the property of
the decedent under intestate succession. Section
72-].-I03 (18), MCA. Under the intestate succession statutes,
a surviving spouse who is the parent of all of the surviving
issue of the decedent is entitled to all of the decedent's
estate. Section 72-2-202, MCA. Thus, under the Uniform
Probate Code, a decedent's minor children, whose other parent
survives the decedent are not "heirs" as defined by the
Probate Code.
Patricia D. Johnson appeals a summary judgment entered
in District Court for the Ninth Judicial District, Toole
County, granting summary judgment in favor of the defendants
as to the wrongful death claims of the minor children, Susan
P. Johnson and Robin J. Johnson. Since the sumnary judgment
did not dispose of the entire case, it was certified for
purposes of appeal by the District Court in accordance with
Rule 54 (b), M.R.Civ.P.
On August 14, 1981, Terry Johnson was electrocuted while
working on a metal building owned by Edwin Vander Pas, with
an electric power drill, manufactured by Rockwell
International. Marias River Electric cooperative, Inc. was
the supplier of electricity.
Terry and Patricia Johnson had five children during the
course of their marriage. At Terry's death, three of the
children were minors. Patricia, as personal representative
of Terry's estate and as guardian ad litem sought damages in
a wrongful death action for herself and the two youngest
children, Susan and Robin. Separate actions have been filed
for the remaining children, now held in abeyance.
Rockwell International was granted summary judgment,
which is not a.ppealed. The remaining defendants filed
motions for summary judgment as to the claims of the minor
children on the basi.s that they are not "heirs" of Terry
Johnson for the purposes of a wrongful death action. The
District Court agreed and granted summary judgment as to the
minor children. This appeal ensued.
The right of action for the wrongful death of an adult
is found in section 27-1-513, MCA:
"When the death of one person, not being a minor,
is caused by the wrongful act or neglect of
another, his heirs or personal representatives may
maintain an action for damages against the person
causing the death, or if such person be employed by
another person who is responsible for his conduct,
then also against such other person."
The language of section 27-1-513, MCA, just quoted, has
been a part of our statutory law since 1877. (The first
enactment of the provision is found in Ch. 1, Title 11, S 14,
at 42, Laws of Montana (1877).) An additional sentence in
the original enactment, providing that damages in a wrongful
death action may be given as under all the circumstances of
the case may be just, is now found in section 27-1-323, MCA.
In all the period of time since 1877 that the wrongful
death statute for an adult decedent has been in effect, until
the adoption of the Uniform Probate Code in 1974, our
statutes relating to intestate succession have provided that
at least some share of an intestate decedent's property would
go to his living issue. See for example, the last such
succession statute, section 91-403, R.C.M. 1947, repealed Ch.
365, 5 2, Laws of Montana (1974).
The Uniform Probate Code became effective on Jul-y 1,
1975 (section 72-1-107(1), MCA). The provisions of that code
for intestacy are in pertinent part these:
"72-2-202. Share of spouse. The intestate share
of the surviving spouse is:
"(1) . . . if there are surviving issue, all of
whom are issue of the surviving spouse also, the
entire remaining estate;. . ."
"72-2-203. Share - -
of heirs other than survivinq
spouse. The part of the intestate esta.te not
passing to the surviving spouse under 72-2-202, or
the entire intestate estate if there is no
surviving spouse, passes as follows:
"(1) To the issue of the decedent;. . ."
Until the adoption of the Uniform Probate Code, no
Nontana statute, except one to which we will advert later,
attempted to define the meaning of the word "heirs." The
Uniform Probate Code defined the term, using the common-law
connotation:
"'Heirs' means those persons, including the
surviving spouse, who are entitled under the
statutes of intestate succession to the property of
a decedent." Section 72-1-103(18), MCA.
It is the contention of the respondents here that after
the adoption of the Uniform Probate Code and pursuant
thereto, a widow is the sole "heir" of her deceased husband
if all of the husband's children are also children of the
surviving wife; that it must be presumed that the legisl-a-ture
intended to change the existing law when it amended the law
pertaining to intestate succession; and that if the
legislature did not intend to change who had the right to
bring a wrongful death action, it would have been "extremely
easy to have amended" the wrongful death act accordingly;
that to interpret the term "heirs" so as to include here the
surviving minor children of Terry Johnson would give the term
an expanded meaning not now found in the statute.
The single Montana statute that did fix a meaning of the
word "heirs" prior to the Uniform Probate Code was section
67-1520, R.C.M. 1947. It provided that where the words
"heirs" or "issue" appeared in certain remainders, "such
words must be taken to mean successors or issue living at the
death of the testator." The statute survives as section
70-1.-518, MCA. It has not received judicial interpretation
by us.
We in the majority must start with the admission that a
wrongful death action is purely a statutory creation. It is
true also that recently in Versland v. Caron Transport (Mont.
1983), 671 P.2d 583, 588, 40 St.Rep. 1681, 1687, we held that
the nonadopted minor stepchildren of the decedent have no
claim for the wrongful death of their step-parent. We relied
in Versland on the provisions of the Uniform Probate Code to
demonstrate that nonadopted stepchildren coul-d not be "heirs"
within the meaning of section 27-1-513, MCA, since they could
never succeed to the property of the decedent under the
statutes of intestate succession. We are now urged by the
respondents to take the next step, and to declare that by
reason of the provisions of the Uniform Probate Code, living
issue of a decedent have no right of recovery for the
wrongful death of their parent, if at the time of the death
the other parent was married to the decedent and survived
him.
We keep in mind that the damages which are recoverable
in a wrongful death action are not assets to the estate of
the decedent, and are not distributed as a part of the
decedent's esta-te. See discussion in Swanson v. Champion
Interna.tiona1 Corporation (1982), 197 Mont. 509, 51-8, 646
P.2d 1166, 1171. We said in Champion:
"When a wrongful death action is prosecuted, the
damages are returned by general verdict, covering
all of the heirs involved. The jury is not given
the duty of ascribing so much to one heir and so
much to another. Rather, the trial court, a.fter
the verdict, is given the ta.sk of allocating the
money damages among the heirs. State ex rel.
Carroll v. District Court (1961), 139 Mont. 367,
372, 364 P.2d 739, 741. The distribution to the
heirs is not controlled by the decedent's will or
by the laws of intestate succession."
It is a rule of statutory construction that to make
tenable the claim that an earlier statute was repealed by a
later one, the two must be plainly and irreconcilably
repugnant to or in conflict with each other, must relate to
the same subject, and must have the same object in view.
State ex rel. Helena Allied Printing Council v. Mitchell
(1937), 105 Mont. 326, 74 P.2d 417. Applying that rule of
statutory construction to whether the right of the children
to bring an action in this case was in effect repealed or
voided by the legislature, we do not find that the wrongful
death statutes and the Uniform Probate Code relate to the
same subject, or have the same object in view. The
legislature, in adopting and continuing the wrongful dea.th
statute had in mind the salutary objective of providing
pecuniary damages to those whc suffer detriment by reason of
a wrongful death. The Uniform Probate Code dces not concern
itself with the rights of persons who were damaged by
wrongful death.
It is a further fundamental rule of statutory
construction that the unreasonableness of the result produced
by one interpretation is reason for rejecting it in favor of
another that would produce a reasonable result. In In Re
Kay's Estate (1953), 127 Mont. 172, 260 P.2d 391, we refused
to follow California's construction of adoption statut.es to
deprive an adopted child from participating in his natural
parent's estate, holding that California's construction was
not founded upon right reasoning.
All statutory construction by courts is an attempt to
search out the will of the legislature. Did the legislature
intend in this case, by an indirect but overwhelming stroke,
to cut off forever the time-honored rights of children to
recover damages for the wrongful death of their parent? If
such was the intent of the legislature in 1974 when the
Uniform Probate Code was adopted, it is the best kept secret
of the decade. Not a single word was uttered in debate, i-n
the legislature, in the press, or by the legal scholars who
proposed or propounded the code, and sponsored it in the
legislature and in seminars, that the code severed the rights
of such children. Tens of actions for wrongful death damages
have been brought by or on behalf of children before and
since the adoption of the Uniform Probate Code, and yet no
legal writer has sounded the tocsin that a legal upheaval. of
such earthquake proportions in tort damages actions had
occurred.
We choose to rule that such was not the intent.ion of the
legislature. In the monumental task of adopting the Uniform
Probate Code, it is remarkable that so few anomalies have
occurred. The legislature was careful to guard from conflict
the subjects with which the Code was concerned, probate,
guardianship and estate proceedings. The Code states:
"72-1-106. Uniform Probate Code to take
precedence. Should any provision of t E s code
conflict with any provisions of other statutes of
the State of Montana relatin to robate,
--
uardianship or other subjects inco9rpor~tedPinthis
:d
o e and suchy.ther statute or statutes was or were
adopted prior to the enactment of this code, the
provisions of this code shall. be deemed to be
controlling.'! (Emphasis added.)
It was the apparent intention of the legislature that
the Code should control with respect to its inherent subjects
of probate, guardianship and estate matters. It left open
the effect on statutes involving other subjects not intrinsic
to the Probate Code.
Therefore, until the legislature specifically tells us
otherwise, we will recognize the historical right of the
issue of a decedent to join with their surviving parent to
recover damages in a single wrongful death action to the
extent permitted prior to the Uniform Probate Code. We are
confident that this is what the legislature intended. To
hold otherwise would result in consequences for which only
the legislature itself should be directly responsible. In
this case, it would wipe out the right of the two minor
children involved to recover damages, if the proof shows
damages, that they suffered by virtue of the death of their
parent. In the worst case example we can think of, if we
were to hold otherwise, it is conceivable that minor children
would have no right of recovery of any kind for the wrongful
death of their bread-winning parent, if both parents were
injured in the same tortious accident, and the other parent
survived the bread-winner for more than 120 hours.
O t h e r p o s s i b i l i t i . e s come t o mind, b u t t h e r e i s no need
t o f u r t h e r burden t h i s o p i n i o n . The summary judgment a g a i n s t
t h e r i g h t of a c t i o n of t h e minor c h i l d r e n i n t h i s c a s e i s
reversed.
W e Concur:
Chief J u s t i c e
Justices
I concur in the result. As the majority opinion
correctly notes, section 27-1-513, MCA, known as the wrongful
death statute, has been with us since 1877. At the time of
its enactment the decedent's natural children met the
statutory definition of heirs. Therefore, it is apparent
that legislative intent was that children would be eligible
for damages under the language of the wrongful death statute.
When the Uniform Probate Code was enacted in 1974, the
intestate succession was changed so that, where there was a
surviving spouse, the children did not take. If the wrongful
death statute had been considered by the legislature and
amended or reenacted following the change in definition of
heirs resulting from enactment of the Uniform Probate Code in
1974, then an argument could be made that the legislature
intended to change those eligible for benefits under the
wrongful death statute. However, such has not been the case
here. Since adoption of the Uniform Probate Code the
legislature has not considered the wrongful death statute.
Adoption of the Uniform Probate Cod.e, with its consequent
change in the definition of "heir", could have no effect upon
the wrongful death statute without making specific reference
to that statute.
I concur in the result for the reason that the
definition of "heirs" used in section 27-1-513, MCA,
necessarily accords with the statutory definition of heirs in
effect at the time of the enactment of the wrongful death
statute. That definition included decedent's natural
children.
I concur in the foregoin<
Morrison.
Mr. Chief Justice Frank I. Haswell, dissenting:
I dissent. I cannot subscribe to the philosophy that
acts of the legislature will not be enforced at our option
until the legislature speaks louder and clearer.
Only the "heirs or personal representatives" of a
decedent can maintain an action for wrongful death. Section
27-1-513, MCA. Such has been the law in Montana for over one
hundred yars.
The heirs of a decedent, by definition and common law,
are those persons "appointed by law to succeed to the estate
in case of intestacy," or, stated another way, those "who
would receive [the] estate under statute of descent and
distribution." Black's Law Dictionary, 4th Ed., p. 854, and
cases cited therein. The only Montana statute defining heirs
provides :
" 'Heirs' means those persons, incl-ud.i.ng
the surviving spouse, who are entitled
under the statutes of intestate succes-
sion to the property of a decedent."
Section 72-1-103(18), MCA.
By statute, the surviving wife succeeds to the entire
estate of her deceased husband where, as here, all the chil-
dren are issue of both. Section 72-2-202, MCA.
In construing the meaning of statutes, the function of
the court is simply to ascertain and declare what in terms or
in substance is contained therein and not to insert what has
been omitted. Section 1-2-101, MCA; Dunphy v. Anaconda
Company (1968), 151 Mont. 76, 438 P.2d 660, and cases cited
therein. interpreting statute, the court must first
look to the plain mea.ning of the words used and, if its
meaning can be thus determined, the court may not go farther
and apply any other means of interpretation. Dunphy v.
Anaconda Company, supra, and cases cited therein.
Here, the statutory limitation of wrongful death ac-
tions to heirs and personal representatives and the statutory
definition of heirs are plain, unambiguous, and certain from
the statutory language used by the legislature. We looked at
the same statutory language recently and held that nonadopted
minor stepchildren of a decedent were not "heirs" under our
intestacy laws and accordingly could not maintain a wrongful
death action for loss of consortium and support. Versland v.
Caron Transport (Mont. 1983), 671 P.2d 583, 40 St.Rep. 1681.
Today, the majority have bastardized the same statutory
language to achieve what they consider an equitable result.
Accordingly, I dissent.
\
Chief Justice