*1 Representative JOHNSON, PATRICIA D. as Personal Johnson, L. Ad Li- and as Guardian Estate Minors, Johnson, tem for Susan P. and Robin J. Plain- Appellants, v. MARIAS RIVER ELECTRIC and tiffs public utility; COOPERATIVE, INC., Edwin Van- Co., Pas, der Vander Pas Oil Defendants d/b/a Respondents. No. 83-370. Submitted March 1984. Aug. Decided 1984. Sept.
Rehearing 1984. Denied P.2d 668. *2 argued, plaintiffs Whitefish, N. Trieweiler for
appellants. argued, Emmons, Falls,
Robert Great for Pas. Vander argued, Borer, Falls, Edward W. Great for Marias River. Greely, Atty. Gen., Helena, Mike for Constitutional challenge. Opinion
MR. JUSTICE SHEEHY delivered the of the Court.
The issue case of a this is whether children dece- spouse proper parties dent who is survived in a his wrongful death action after the enactment of Sections 71-2- MCA, Probate Code. Uniform 103(18), 72-2-202, We hold that of a who is survived the issue decedent spouse may damages for under Sec- his maintain action 27-1-513, tion MCA. way: wrong-
The conflict in this The the statutes arises MCA, provides ful death heirs', per- “his case of the an adult may an action representatives” sonal maintain Uniform against person responsible. prop-
now defines “heirs” as those who are entitled to the Section 72- erty of decedent under intestate succession. statutes, 1-103(18), MCA. Under the intestate succession spouse parent surviving all of who is the es- issue of the all of the decedent entitled to decedent’s Thus, under the Pro- tate. Section MCA. Uniform Code, children, parent bate a decedent’s minor whose other Pro- survives the decedent are not “heirs” as defined bate Code. summary judgment D. entered appeals
Patricia Johnson District, Toole District Court for the Ninth Judicial *3 County, granting summary in favor of defend- judgment children, ants as to the death of the minor wrongful claims P. Robin Since the sum- Susan Johnson and J. Johnson. case, it was mary dispose not of the entire judgment did in District Court ac- purposes appeal by certified for 54(b), cordance with Rule M.R.Civ.P. 14, 1981, Terry while August
On Johnson was electrocuted Pas, working building on a Edwin Vander metal owned drill, In- power with an electric manufactured Rockwell was the Cooperative, ternational. Marias River Electric Inc. supplier electricity. during Johnson five children Patricia had death, the chil- marriage. Terry’s
course of their At three of Patricia, representative personal dren were minors. as in a sought damages litem Terry’s guardian estate and as ad chil- youngest death for herself and the two wrongful action for dren, have filed Separate Susan and Robin. actions been children, abeyance. now in remaining held Rockwell summary International was granted judgment, is which not appealed. The filed remaining defendants mo- summary tions for judgment as to the claims of the minor children on the basis that of Terry not “heirs” Johnson for purposes of a death action. The District agreed granted summary Court judgment as "to the minor This appeal children. ensued.
The of action for the death of an adult is found Section MCA: minor, “When the of one person, being a is caused the wrongful neglect another, act or his heirs or personal representatives may maintain an action for damages against the person causing death, such person be employed by person responsible another who is conduct, for his against then also such person.” other The language 27-1-513, MCA, of Section just quoted, has part (The of our statutory law since 1877. first en- provision 1, II, actment of 14, is found Ch. Title at § 42, (1877).) Laws of Montana An additional sentence original enactment, providing in wrongful may death action given be as under all the circumstances of may the case be just, found in now Section MCA. period all the of time since 1877 that effect, statute an adult decedent has been
under the adoption 1974, Uniform Probate Code our statutes relating provided to intestate succession have that at least some property share an intestate decedent’s go would to his living example, issue. See for last such 91-403, succession 1947, R.C.M. repealed (1974). Ch. S Laws of Montana The Uniform July Probate Code effective became on (Section MCA). 72-1-107(1), provisions of that *4 intestacy code for pertinent part are in these: spouse. “72-2-202. Share the sur- The intestate share of of spouse viving is:
“(1) issue, if ... there are all of whom are issue surviving estate; also, spouse remaining the entire surviving surviving spouse. other than Share “72-2-203. of part surviving to the passing The of the intestate estate not estate if there spouse under or the entire intestate passes as surviving spouse, is no follows: “(1) decedent; . of . .” To the issue the Code, no Mon- adoption Until the of the Uniform Probate later, one we will advert at- except tana to which The of word “heirs.” tempted meaning to define the the term, using the the com- Uniform Probate Code defined mon-law connotation: “ including ‘Heirs’ those the persons, means suc- spouse, who entitled under the statutes of intestate Section 72-1- property to of a decedent.” cession the 103(18), MCA. respondents here that after the
It is the contention the pursuant adoption of Uniform Probate the Code thereto, husband a widow is the sole “heir” her deceased sur- if all of the husband’s are also children children wife; that viving presumed legislature that it must be it existing intended to law when amended change succession; legis- that law pertaining to intestate bring a change did to who had the to lature not intend action, easy “extremely it have wrongful death would accordingly; to have amended” act here sur- interpret so as to include the term “heirs” term viving give Johnson would children expanded meaning not found the statute. single meaning Montana that did fix a stature Sec- prior word Uniform Probate was “heirs” 67-1520, provided It that where the tion R.C.M. 1974. remainders, “issue” in certain appeared words “heirs” or liv- mean or issue “such words must be taken to successors as The statute survives ing at the death of testator.” inter- judicial MCA. It has received pretation by us.
523 We in the majority must start with the admission that wrongful a purely statutory action is creation. It is in Versland v. Caron Transport true recently also that (Mont. 1983), 583, 588, 313,] Mont. 671 P.2d 40 [206 1681, St.Rep. 1687, we held that the nonadopted stepchildren of a decedent have no claim for the death of Versland on the step-parent. their We in relied provisions of the Uniform Probate Code to demonstrate nonadopted that stepchildren could not be “heirs” within the meaning 27-1-513, MCA, of Section since could never property succeed to the of the decedent under the statutes of intestate by succession. We are urged now respondents to take step, by the next and to declare that provisions reason of the Code, of the Uniform Probate liv ing issue of a right recovery decedent have no to for the wrongful death parent, of their if at the time of the death parent the other was married to the decedent and survived him.
keepWe in mind that the damages which are recover able in a wrongful death action are not assets to the estate decedent, and are part not distributed as a Swanson v. Champion decedent’s estate. in See discussion Corporation (1982), International 509, 518, 197 Mont. 1171. We in Champion: said “When a wrongful prosecuted, death action is by general verdict, returned covering all in- heirs volved. The jury is not given duty ascribing so much Rather, court, to one heir and so much to another. the trial verdict, after the given money the task of allocating damages among the heirs. State ex rel. Carroll v. District Court (1961), 367, 372, 139 Mont. 364 P.2d 741. The distribution to the by is not controlled the decedent’s will or the laws of intestate succession.” It is a rule construction that to make ten able the claim that an earlier repealed statute was one, later plainly irreconcilably repug the two must be other, nant to or in conflict with each must relate to the State object have same view. subject, same and must Printing (1937), rel. Helena v. Mitchell ex Allied Council rule of Applying 105 Mont. P.2d 417. bring of the children
construction whether repealed or voided an action this case was effect stat- legislature, not find that the we do sub- relate to the same utes and Uniform ject, object legislature, or have the same in view. had adopting continuing death statute pecuniary damages salutary objective providing mind the *6 of by to those who reason suffer detriment itself death. The Probate does not concern Uniform by wrongful rights damaged with the who persons were death.
It is a rule of construc further fundamental produced result tion unreasonableness an interpretation one for it favor of rejecting is reason In re produce other that would reasonable result. (1953), Kay’s Estate re we Mont. stat adoption fused to follow California’s construction of in his deprive adopted participating utes to child from parent’s estate, construc holding natural that California’s upon right reasoning. tion was not founded All attempt construction courts is an in legislature. legislature search out the will of the Did the stroke, case, by overwhelming tend this an indirect but re to cut off of children to rights forever the time-honored If damages parent? cover of their in 1974 when the Uni legislature such was the intent of the adopted, best secret of kept form Probate Code was it is the debate, in the decade. word uttered single Not a was pro legislature, press, legal or scholars who code, leg in the posed propounded sponsored it and seminars, rights severed the islature and that the code damages children. such Tens of actions for or on of children before brought by have been behalf Code, no adoption yet since the of the Uniform legal legal upheaval writer has sounded the tocsin that a earthquake proportions such in tort actions had occurred.
We choose to rule that such was not the intention of legislature. adopting In the monumental task of Code, Uniform Probate it is remarkable that so few anoma legislature guard lies have occurred. The was careful to subjects from conflict the with which the Code was con probate, guardianship proceedings. cerned, and estate Code states: precedence. Probate to take Should “72-1-106. Uniform
any provision any provisions of this code conflict with relating probate, other statutes of the State of Montana guardianship subjects incorporated or other in this code adopted and such other statute or statutes was or were prior provisions to the code, enactment of this of this added.) controlling.” (Emphasis code shall be deemed to be apparent legislature It was the intention of the that the respect subjects Code should control with to its inherent probate, guardianship open and estate matters. It left involving subjects effect on statures other not intrinsic to the Probate Code. legislature specifically
Therefore, until the tells us other- recognize wise, we will the historical of the issue of a *7 join surviving parent decedent to with their to recover deun- ages single wrongful permit- in a death action to the extent prior ted to the Uniform Probate Code. are We confident legislature that this is what the intended. To hold otherwise consequences only legislature in would result for which the directly responsible. itself should be case, In this it would wipe right out the of the two minor children involved to damages, proof damages, recover if the shows that suf- parent. fered virtue of the death their of the worst example case of, otherwise, we can think if we were to hold right it is conceivable that minor children would have no of recovery any wrongful of kind for the their bread- death of parent, winning parents injured in both were the same accident, the survived bread- parent and the other tortious hours. for more than 120 winner no to mind, but there is need possibilities
Other come summary judgment this opinion. further burden in case the minor children this the of action of against reversed. is HARRISON, and GULBRAND-
MR. JUSTICES SHEA concurred. SON MORRISON, concurring: specially
MR. JUSTICE correctly opinion As the majority I concur in the result. MCA, notes, wrongful death known as the Section At time of its en- with us since 1877. the has been the natural children met actment the decedent’s Therefore, legislative apparent it that definition heirs. of eligible intent was that children would be death statute. language wrongful under the the in the the was enacted When Uniform Probate Code that, there was a changed so where intestate succession was wrongful If the not take. spouse, children did legislature and death had been considered statute following change definition amended reenacted Uniform Probate resulting from enactment of the made that then could be argument for benefits change eligible intended those legislature However, such has wrongful death statute. under adoption here. of the Uniform case Since legislature Code the has not considered Code, with its Uniform Probate Adoption statute. “heir”, no could have consequent change the definition of spe- making without upon death statute effect to that statute. cific reference
I the definition concur in the result for reason MCA, necessarily accords “heirs” used at the time definition of heirs effect with definition statute. That enactment of the children. included decedent’s natural *8 WEBER, MR. JUSTICE specially concurring: I foregoing concurring opinion concur Justice Morrison. HASWELL,
MR. CHIEF dissenting: JUSTICE I I dissent. cannot that acts philosophy subscribe to the the legislature will be at our until option not enforced legislature speaks louder and clearer.
Only personal representatives” the “heirs or .of a decedent can maintain action for death. Section 27-1- 513, MCA. Such has for over law Montana one years. hundred decedent, law,
The heirs of definition and common persons are those “appointed by law to succeed to the es- intestacy,”, or, tate case of way, stated another those “who would receive estate under of descent statute [the] Ed., and Dictionary, distribution.” Black’s Law p. 4th and cases cited only therein. The Montana defining statute provides: heirs “ ‘Heirs’ means persons, those including surviving spouse, who are entitled under the statutes of intestate suc- cession to the property of a decedent.” 72-1- Section 103(18), MCA. statute,
By wife succeeds to the entire estate where, here, of her deceased husband all as the children are issue of both. Section MCA.
In construing meaning .statutes, function simply court is to ascertain and declare what in terms or substance therein not what contained and to insert has Anaconda 1-2-101, MCA; been omitted. Dunphy v. Company (1968), 151 Mont. and cases cited therein. must interpreting the court first and, look plain to the meaning the words used its determined, be meaning may go can thus the court far- Dunphy apply any ther and interpretation. other means of v. Anaconda Here, Company, supra, limita- repre- tion of personal death actions to plain, sentatives definition of heirs statutory language used from the and certain unambiguous, statutory lan- at the same by We looked legislature. *9 stepchil- recently nonadopted and held that guage intestacy under our “heirs” decedent were not dren not maintain could accordingly laws and v. Versland support. loss consortium and action for 313,] (Mont. 1983), Transport Caron Mont. [206 have bastardized Rep. Today, majority St. 1681. what consider to achieve statutory language the same equitable result. I Accordingly, dissent.