text:
    In re the MARRIAGE OF MARY ELLEN McCORMACK, Petitioner and Appellant, and SAM O. McCORMACK, Respondent and Respondent.
    No. 86-192.
    Submitted on Briefs July 31, 1986.
    Decided Oct. 9, 1986.
    726 P.2d 319.

      C.W. Leaphart, Helena, for petitioner and appellant.
    Charles Graveley, Helena, for respondent and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Mary Ellen McCormack appeals a Lewis and Clark County District Court order dividing the property of the parties.

Three issues are raised on appeal:

(1) Whether the District Court erred in rejecting the appraisal of Allen Jones as to the value of the residence at the time of the marriage.

(2) Whether it was error to reject the only expert testimony as to the value of the mining claims.

(3) Whether it was error to evenly divide the appreciated equity in the residence between the parties.

We affirm.

The parties were married on November 24, 1976 and lived together until they separated in September, 1983. Both parties brought some property into the marriage. The wife’s net worth at the beginning of the marriage was appraised at $25,275 compared to $8,202.45 for the husband. Before the marriage, the wife purchased ten acres of land and partially completed a house on the property. During the marriage, the parties made improvements to the property worth $20,439.

At trial two appraisals of the house and the ten acres, as of the time of the marriage, were received into evidence. The appraisals were $45,300 and $56,000. The District Court accepted the $45,300 appraisal prepared by Joseph J. Zimmerman, finding that he was a highly qualified appraiser whose evidence was more credible than that of the other appraiser.

The court found that the wife was entitled to the value of the house at the beginning of the marriage but that the parties should split the appreciation in the net value of the house since the appreciation was a product of their joint efforts and contributions. The court accepted Zimmerman’s appraisal of $95,500 as the market value of the house in 1985, the time of the divorce. The debt owing on the house was $23,500, leaving a net value or equity of the house of $72,000. Subtracting the 1976 net value of the house of $18,800 from the net value of $72,000 at the time of the divorce leaves a balance of $53,200, which is the increased value of the house during the marriage. The court rejected the wife’s claim that the husband was only entitled to half of the total improvements made on the property during the marriage, which amounted to $20,439. The court therefore awarded the house to the wife, but ordered her to pay the husband $26,000 within ten years and assume the $23,500 debt on the house.

A court with jurisdiction to dispose of marital property is guided by Section 40-4-202(1), MCA:

“[T]he court . . . shall . . . equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; antenuptial agreement of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; . . .”

The standard of review was stated in In Re Marriage of Garst (Mont.1983), [206 Mont. 89,] 669 P.2d 1063, 1067, 40 St.Rep. 1526, 1530:

“The District Court has far-reaching discretion in making property divisions. The reviewing court does not substitute its judgment for that of the trial court, and will not alter a judgment unless it finds an abuse of discretion, i.e., that the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Kowis, 658 P.2d at 1087, 40 St.Rep. at 153

The first issue is whether the District Court erred in rejecting Allen Jones’ appraisal of the parties’ residence. In Dickerson v. Dickerson (1980), 188 Mont. 492, 497, 614 P.2d 521, 524, we said “the trier of the facts has the discretion to give whatever weight he sees fit to the testimony of the expert from 0 to 100%.” Biegalke v. Biegalke (1977), 172 Mont. 311, 317, 564 P.2d 987, 990. In Marriage of Peterson (1981), 195 Mont. 157, 162, 636 P.2d 821, 823, we held that “the District Court is free to follow one appraisal and reject another. “ The District Court must make findings supporting the valuation selected where there is a wide disparity in the appraisals offered. Peterson, 636 P.2d at 823.

In this case the District Court received into evidence appraisals from Joseph Zimmerman and Allen Jones and found Zimmerman’s appraisal to be more credible. The court had the discretion to give full weight to either appraisal. Moreover, the court found Zimmerman to be a”highly qualified” appraiser. We conclude that the District Court did not abuse its discretion.

The second issue is whether it was error to reject M.W. Rat-cliff’s appraisal of the Rimini mining claims. Ratcliff appraised the claims on behalf of the wife at a figure between $18,250 and $20,000. We follow Dickerson, 614 P.2d 521, and hold that the District Court, as the trier of fact, had the discretion to give whatever weight it saw fit to the testimony of the wife’s expert. The court found the appraisal of the mining claims to be unreliable because no proof of any commercial value in the claims had been shown. The appraiser did not know who owned the ground, he did not test it, drill it, or look at the production records. He did not know of anyone who would buy the land. Instead he relied on what others had told him about the claims. The District Court acted well within its discretion by adopting the husband’s estimate that the claims had a hobby value of $250.

The third issue is whether it was error to evenly divide the appreciated equity in the residence between the parties. In Torma v. Torma (1982), 198 Mont. 161, 168, 645 P. 2d 395, 399, we held that “a property division should at least reflect the relative contributions of the parties, as well as entitle each to a proportionate share of the appreciation in property values in the wake of divorce. “

The District Court found the parties to be in approximately the same position, each having contributed an equal amount to the marriage. From a finding that the appreciated property value of $53,200 was a product of the parties’ joint efforts, the court divided the appredation equally between them. We agree with the judgment of the District Court.

The wife argues that since she brought the house into the marriage and since title to the house is in her name, she should receive more than 50% of the appreciation in property values.

We have said that property acquired before marriage is still a marital asset subject to division and that there is no definite rule as to how the trial court is to consider the asset. Each case is to be decided on its own facts. In Re Marriage of Keepers (Mont. 1984), [213 Mont. 350,] 691 P.2d 810, 41 St.Rep. 2163. We find Keepers persuasive when read in conjunction with Section 40-4-202(1), MCA, which reads in part:

“[T]he court . . . shall . . . equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both.” (Emphasis added.)

The District Court is vested with wide discretion in these matters and we see no facts to indicate that it abused its discretion.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY, MR. JUSTICE MORRISON,

license: Public Domain

text:
    PATRICK DAWSON, Plaintiff and Appellant, v. THE BILLINGS GAZETTE, A DIVISION OF LEE ENTERPRISES, a foreign corporation; Dr. Gene V. Holden, M.D.; and the Billings Clinic, a partnership, Defendants and Respondents.
    No. 85-406.
    Submitted June 12, 1986.
    Decided Oct. 10, 1986.
    726 P.2d 826.

      MR. JUSTICE SHEEHY dissented and filed opinion.
    MR. JUSTICE MORRISON specially concurred and filed opinion.
    Patten Law Firm, P.C., James A. Patten and Russell D. Yerger, Billings, for plaintiff and appellant.
    Moulton, Bellingham, Longo and Mather, P.C., William A. Forsythe, Billings, Anderson, Edwards and Molloy, Donald W. Molloy, Billings, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Patrick Dawson appeals a jury verdict in Yellowstone County District Court which found in his favor on the issues of liability and proximate cause in his wrongful termination suit but awarded him zero damages. The District Court denied Dawson’s motion for a new trial.

The issues on appeal are whether the jury verdict is supported by sufficient evidence in the record and whether the District Court abused its discretion in denying Dawson’s motion for a new trial.

We affirm.

Appellant Dawson filed suit against the Billings Gazette on September 23, 1982, alleging that he had been wrongfully terminated from his employment as a reporter with the newspaper on June 21, 1982, and that the Gazette had violated its duty of, good faith and fair dealing. Dawson also filed suit against Dr. Holden and the Billings Clinic for disclosing confidential medical information to the Gazette without his authorization. The claim against Dr. Holden and the Billings Clinic has been dismissed.

A jury trial was held in March, 1985, and the jury found that:

1) The Gazette had breached its duty of good faith and fair dealing to Dawson;

2) the Gazette was the proximate cause of Dawson’s damages;

3) Dawson was entitled to zero damages;

4) the Gazette was not liable for punitive damages. Dawson motioned for a new trial on the issue of damages or, in the alternative, a new trial on all issues. The motion was denied on May 9, 1985.

As to the first issue, in Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 191, 657 P.2d 594, 597, we stated the standard by which jury verdict is to be reviewed;

“Motions to set aside jury verdicts as not supported by the evidence are proper only when there is a complete absence of any credible evidence in support of the verdict. All evidence and all inferences drawn therefrom must be considered in a light most favorable to the adverse party. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319, 1325-1326, 39 St. Rep. 1565, 1573-1574.”

In Holenstein v. Andrews (1975), 166 Mont. 60, 530 P.2d 476, we held that where there is substantial credible evidence in the record to support a verdict of zero damages, the verdict will be upheld.

We find substantial credible evidence in the record to support the jury’s verdict.

First, Dawson had three sources of income from the time he was fired until the time of trial. He received four and one-half weeks pay for unused vacation and holiday time and two weeks severance pay from the Gazette. He received unemployment compensation and performed free-lance work for several publications, including U.S.A. Today, Time Magazine, The Denver Post, The Miami Herald, The Dallas Morning News, and The Great Falls Tribune.

Second, we find that Dawson has failed to mitigate his damages. An injured party is not required to seek employment in another line of work or to move to a different locality. Selland v. Fargo Public School Dist. No. 1 (N.D.1981), 302 N,.W.2d 391, 393. However, he or she must exercise ordinary diligence to procure other employment. Vallejo v. Jamestown College (N.D.1976), 244 N.W.2d 753, 759.

After he was fired Dawson applied to just four newspapers, restricted his job search to papers of equal or greater circulation than that of the Gazette, and only those located in the western United States. He totally rejected the idea of working for a smaller newspaper in fear of the resulting harm to his career. The Sacramento Bee indicated that a position might be available but Dawson rejected the inquiry because of the salary cut he would be taking.

The Gazette presented several witnesses who testified that in their positions as newspaper editors, they would be willing to hire reporters who had moved to smaller papers and even those who had been fired from other papers. Several of the witnesses themselves had taken positions with smaller papers in hopes of advancing their careers. Evidence was also presented that another reporter fired by the Gazette found comparable employment with the Bozeman Chronicle within one month of her dismissal.

It is very likely that Dawson could have obtained full-time employment with a reputable newspaper a short time after his firing if he had vigorously sought to do so. By failing to pursue comparable full-time work in the journalism field, Dawson failed to mitigate his damages.

The plaintiff has the burden of proving his own damages Holenstein, 530 P.2d at 478. In addition, the jury is not compelled to believe the plaintiff’s testimony. Maykuth v. Eaton (Mont.1984), [212 Mont. 370,] 687 P.2d 726, 41 St.Rep. 1800.

Dawson argues that because he was never offered a job, he has proven his damages. We reject the argument and hold that there is substantial evidence from which the jury could have concluded that Dawson suffered no damages. The jury decides what evidence to accept and what evidence to reject.

We refuse to overturn the jury verdict.

As to whether the District Court abused its discretion in denying Dawson’s motion for a new trial, we refer to Lindquist v. Moran (Mont.1983), [203 Mont. 268,] 662 P.2d 281, 284-285, 40 St.Rep. 439, 442-443.

“In considering a motion for new trial, the trial court is not to weigh the evidence where conflicting evidence is presented. Yerkich v. Opsta (1978), 176 Mont. 272, 274, 577 P.2d 857, 859. Rather, the trial court’s discretion to grant a new trial for insufficiency of the evidence is exhausted when it finds substantial evidence to support the verdict. Stenberg v. Neel (Mont.1980), 613 P.2d 1007, 1011, 37 St.Rep. 1170, 1175; Kincheloe v. Rygg (1968), 152 Mont. 187, 191, 448 P.2d 140, 142. Where conflicting evidence is present, it is an abuse of the trial court’s discretion to grant a new trial. Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122, 128, 580 P.2d 915, 919, overruled on other grounds, Bohrer v. Clark 180 Mont. 233, 590 P.2d 117. We will not substitute our view of the evidence for that of the jury where that evidence furnishes reasonable grounds for different conclusions. Rock Springs Corp. v. Pierre (Mont.1980), 615 P.2d 206, 211, 37 St.Rep. 1378, 1384.”

In addition, the evidence must be reviewed in a light most favorable to the prevailing party. Holstein, 530 P. 2d at 478.

There is conflicting evidence as to whether or not Dawson has been damaged. Dawson testified that due to his inability to find comparable employment subsequent to his dismissal from the Gazette he had been damaged in the amount of lost wages. The Gazette presented testimony that Dawson failed to mitigate his damages and actually made a conscious decision to pursue a free-lancing career in journalism rather than to seek full-time employment with another publication.

The following is an excerpt of the cross-examination of Dawson at trial. Counsel for the Gazette is referring to Dawson’s December 7, 1982 deposition.

“Q. Let me refer you to page 44, line 25. That is the very bottom of the page. And I asked you: ‘Isn’t it true that to an extent, you have turned away from, I guess, the chance of getting an entry-level position as a beginning reporter at a small to medium sized newspaper so that you could pursue the course you’ve set for yourself?’
“And you answered: T think I am justified in making that a low priority.’
“A. Yes.
“Q. I asked: ‘But, in fact, you have made it a low priority, haven’t you?’ And you answered affirmatively, didn’t you?
“A. Right.
“Q. The free-lancing work and staying in Billings as opposed to going to work for a small weekly or, I guess, a small and not very significant daily, is a choice you have made with your life, isn’t it?
“A. I would say so.”

The jury decided that the Gazette had breached its duty of good faith and fair dealing to Dawson but concluded that Dawson was not entitled to any damages. The District Court must respect the jury’s decision when conflicting evidence is present, as is the case here. To grant a new trial in light of conflicting evidence would be an abuse of discretion.

Reviewing the evidence in a light most favorable to the Gazette, we agree with the District Court that substantial evidence exists to support the jury’s verdict of zero damages. The Gazette’s witnesses established that there is a job market for a person with Dawson’s skills. He certainly had the ability to work as a salaried reporter for another news organization but decided to work on his own. The jury could reasonably conclude that Dawson had not done enough to mitigate his damages.

The District Court did not abuse its discretion in denying Dawson’s motion for a new trial.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE HUNT concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent to permitting evidence of jobs outside of his living area for mitigation of damages.

MR. JUSTICE MORRISON,

specially concurring:

In the recent case of Safeco Insurance Co. v. Ellinghouse (1986), [220 Mont. 199,] 725 P.2d 217, 43 St.Rep. 1689, this Court blatantly substituted its judgment for that of the jury. In addition to an award for punitive damages, the jury in Ellinghouse had awarded $200,000 for mental distress damages. In setting that award aside the majority said:

“The trial court awarded damages of $200,000 to Ellinghouse for emotional distress, in opposition to which Safeco advanced the argument of an absence of malice on its part. Although an award of mental anguish is justified by the evidence presented by Ellinghouse on the issue of malice, the amount of the award substantially exceeds that which the evidence could sustain and therefore must be reduced.”

Without any question there was substantial evidence to support the jury’s award of $200,000 in compensatory damages to Ellinghouse. This Court simply disagreed with the jury award and substituted its judgment for that of the jury.

Let us see how the Court’s approach in Safeco can be squared with the Court’s rationale employed to uphold a zero verdict. The majority in this case states:

“Dawson argues that because he was never afforded a job, he has proven his damages. We reject the argument and hold there is substantial evidence from which the jury could have concluded that Dawson suffered no damages. The jury decides what evidence to accept and what evidence to reject. (Emphasis supplied. )

The jury decided that the Gazette had breached its duty of good faith and fair dealing to Dawson but concluded that Dawson was not entitled to any damages. The district court must respect the jury’s decision when conflicting evidence is present, as is the case here. To grant a new trial in light of conflicting evidence would be an abuse of discretion.” (Emphasis supplied.)

My learned brother, the Chief Justice, has signed this opinion upholding an award of zero damages on the basis that courts cannot interfere with the discretion of a jury. In the Ellinghouse case, the Chief Justice cast a decisive vote in favor of disregarding the discretion of the jury.

The Chief Justice is not the only villain in this melodrama of inconsistency. Time and again the members of this Court disregard appellate rules of review and substitute their judgment for that of the District Judge or the jury; except, of course, where the members of the Court agree with the District Court or jury and then they employ the rule, applicable in all cases, that we must respect the judgment of the trier of fact.

I am concurring in the decision to affirm the discretion of the jury in this case, although I personally disagree with the verdict. The law compels us to respect the discretion of the trier of fact in all cases whether the verdict be large or be nothing at all.


author: MR. JUSTICE HUNT MR. JUSTICE MORRISON,

text:
    SHARON L. JEVNING, individually and as Personal Representative of the Estate of Richard L. Jevning, Deceased, Plaintiff and Appellant, v. SKYLINE BAR, Its Agents, Servants and Employees, Defendants and Respondents.
    No. 85-586.
    Submitted Sept. 16, 1986.
    Decided Oct. 10, 1986.
    726 P.2d 326.

      MR. JUSTICE MORRISON specially concurred and filed opinion.
    John F. Iwen argued, Great Falls, for plaintiff and appellant.
    Alexander & Baucus, J. David Slovak argued, Great Falls, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff Jevning appeals the order of the District Court, Eighth Judicial District, Cascade County granting defendant’s motion for judgment on the pleadings. We vacate and remand.

There are two issues on appeal. First, is Ch.l, 1986 Mont.Spec.Sess. 49th Leg. as approved and adopted on April 4, 1986 retroactively applicable to Jevning’s cause of action which occurred October 15, 1983? Second, do Nehring v. LaCounte (Mont. 1986), [219 Mont. 462,] 712 P.2d 1329, 43 St.Rep. 93, and Bissett v. D.M.I., Inc. (Mont. 1986), [220 Mont. 153,] 717 P.2d 545, 43 St.Rep 252, provide Jevning with a cognizable cause of action?

From 11:00 p.m. to 2:00 a.m., Richard Jevning purchased and consumed alcoholic beverages at the Skyline Bar near Great Falls. At about 2:30 a.m., Richard Jevning’s pickup left the frontage road South of Great Falls and rolled over, throwing him from the vehicle. He died as a result of his injuries.

His widow sued the Skyline Bar for negligence seeking damages for the personal injuries and death of her husband. The complaint alleged that Skyline Bar was negligent in allowing Jevning to consume liquor on the premises and then drive, and that Skyline Bar violated Section 16-3-301(2)(b), MCA, and Section 16-6-304(1), MCA. The complaint alleges that the negligence of the Skyline Bar was the proximate cause of Jevning’s injuries and death.

Skyline Bar answered the complaint and set forth two affirmative defenses. First, the injuries were the direct and proximate result of decedent’s own negligence, thus the judgment should be denied or proportionately reduced. Second, the complaint should be dismissed for failure to state a claim on which relief could be granted. Skyline Bar also filed a motion for judgment on the pleadings alleging Jevning had failed to state a claim on which relief could be granted. The District Court granted Skyline Bar’s motion for judgment on the pleadings, relying on Runge v. Watts (1979), 180 Mont. 91, 589 P.2d 145. The District Court stated, “The current state of Montana law does not recognize common law dram shop liability against an alcohol vendor.”

Since that time, this Court has handed down the Nehring v. LaCounte and Bissett v. D.M.I., Inc. opinions. Nehring v. LaCounte, involved a tavern patron who, after drinking heavily at a bar, attempted to drive back to North Dakota. He drove the wrong way down a four-lane divided highway and ran head on into another vehicle killing the driver of the on-coming vehicle as well as two passengers in his car. The widow of the man struck and killed sued the tavern owner for negligence. The District Court granted summary judgment in favor of the tavern owner. We vacated the summary judgment and remanded for further proceedings. In Nehring, we allowed the widow of the innocent third party to maintain a negligence action against the tavern owner and the tavern patron. We held the alcoholic beverage control statutes (Sections 16-3-301 and 16-6-304, MCA) furnished a standard against which negligence could be measured. We also held that “consumption of the alcoholic beverages served, subsequent driving, and the likelihood of an injury-producing accident are foreseeable intervening acts which do not relieve the tavern owner of liability for negligence.” Nehring, 712 P.2d at 1335, 43 St.Rep. at 99. In Bissett v. D.M.I., Inc., we held that a tavern owner who serves an intoxicated minor could be held liable for injuries sustained by that minor in a motor vehicle accident, and that the minor’s acts in drinking alcoholic beverages served to her and then becoming involved in an injury-producing accident were reasonably foreseeable events that would no longer protect a defendant from liability for negligence. Bissett v. D.M.I., Inc., 717 P.2d at 547-48, 43 St.Rep. at 255.

Since our decisions in Nehring and Bissett, the Montana Legislature met in a special session and passed Ch.l, 1986 Mont.Spec.Sess. 49th Leg., a law which creates civil liability for injuries involving alcohol consumption. That law states:

“Section 1. Civil liability for injuries involving alcohol consumption. (1) The purpose of this section is to set statutory criteria governing the liability of a person or entity that furnishes an alcoholic beverage for injury or damage arising from an event involving the person who consumed the beverage.
“(2) A person or entity furnishing an alcoholic beverage may not be found liable for injury or damage arising from an event involving the consumer wholly or partially on the basis of a provision or a violation of a provision of Title 16 of the Montana Code Annotated.
“(3) Furnishing a person with an alcoholic beverage is not a cause of, or grounds for finding the furnishing person or entity liable for, injury or damage wholly or partly arising from an event involving the person who consumed the beverage unless:
“(a) the consumer was under the legal drinking age and the furnishing person knew that the consumer was under age or did not make a reasonable attempt to determine the consumer’s age;
“(b) the consumer was visibly intoxicated; or
“(c) the furnishing person forced or coerced the consumption or told the consumer that the beverage contained no alcohol.”
“Section 2. Effective date. This act is effective on passage and approval.”

The law was approved on April 4, 1986. The first issue we face is whether Ch.l, 1986 Mont.Spec.Sess. 49th Leg. applies retroactively to Jevning’s cause of action which accrued October 15, 1983.

The Montana rule concerning retroactivity is set forth in Section 1-2-109, MCA, as follows: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” We have held that this statute means the intent of the legislature to make a statute retroactive must be determined from the statute and no other source. Penrod v. Hoskinson, MD (1976), 170 Mont. 277, 281, 552 P.2d 325, 327; Dunham v. Southside National Bank of Missoula (1976), 169 Mont. 466, 475, 548 P.2d 1383, 1386. We find nothing in Ch.l, 1986 Mont.Spec.Sess. 49th Leg. which indicates an intent that the law be applied retroactively. Indeed, the statute is declared to be effective on passage and approval. The statute was approved on April 4, 1986. We hold that Ch.l, 1986 Mont.Spec.Sess. 49th Leg. is not to be applied retroactively.

Next, Jevning raises the issue of whether she has a cognizable claim for relief against the tavern owners. Jevning contends she should be allowed to go forward with her claim for relief under Nehring and Bissett on the grounds that a violation of Section 16-3-301(2)(b), MCA, is evidence of negligence regardless of whether the intoxicated person is a minor, as in Bissett, or an adult, as here. She argues that under Bissett, whether an intoxicated person is a minor or an adult, their negligence as compared to the tavern owner’s negligence is a question the jury should determine. Further, she asserts that under the new law passed by the 1986 Special Session, the negligence of the adult patron as compared to the negligence of the tavern owner is a jury question. She argues it would be unfair to refuse to allow the adult patron in this case the opportunity to present and meet his burden of proof.

Skyline Bar, on the other hand claims this case is distinguishable from Nehring, which involved an innocent third party injured by the bar patron, and Bissett, which involved a minor. Skyline further contends that the actions of Jevning in consuming alcoholic beverages, then driving a motor vehicle while intoxicated should be construed by this Court as willful and wanton conduct which, as a matter of law, must be the primary cause of the subsequent car accident. We decline to so rule for two reasons.

The issue of willful and wanton conduct is not properly before this Court. The District Court granted Skyline’s Rule 12(c) motion for judgment on the pleadings. The only record before this Court is the complaint and the answer. For purposes of a Rule 12(c) motion for judgment on the pleadings, we must accept the allegations in the complaint as true and we cannot look to matters outside the pleadings. 2A Moore ‘s Federal Practice Section 12.15; Kinion v. Design Systems, Inc. (1982), 197 Mont. 177, 641 P.2d 472; Mathews v. Glacier General Assurance Co. (1979), 184 Mont. 368, 603 P.2d 232. In this case, Skyline pled two affirmative defenses: One, that the damages were a direct and proximate result of decedent’s own negligence and thus any judgment should be denied or proportionately reduced; and two, that Jevning’s complaint failed to state a claim for relief on which relief can be granted. Thus the issue of willful and wanton conduct by Jevning is not before us on the pleadings and cannot be considered in a motion for judgment on the pleadings.

Even if willful and wanton conduct had been alleged in the pleadings, we could not rule as a matter of law that driving a motor vehicle while intoxicated is willful and wanton conduct absent any factual allegations as to the cause of the accident.

We hold, therefore, that the District Court erred in granting Skyline’s motion for judgment on the pleadings. Jevning’s complaint alleging negligence against Skyline for violation of Section 16-3-301(2)(b), MCA, and Section 16-6-304(1), MCA, states a claim for relief.

We vacate the decision of the District Court and remand for further proceedings.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY and GULBRANDSON concur.

MR. JUSTICE MORRISON,

specially concurring:

I concur in the result. In Bissett v. D.M.I., Inc. (Mont. 1986), [220 Mont. 153,] 717 P.2d 545, 43 St. Rep. 252, I filed a dissent stating that I thought an intoxicated driver should be barred in a suit against the tavern based upon the fact the driver would necessarily be more than fifty percent responsible for his or her injuries.

I still adhere to the concept I espoused in Bissett but I join in this result because the legislature, after we rendered the Bissett decision, enacted a statute governing liability which did not exempt the driver from its purview. In other words, the statute enacted by the legislature permits the driver or any other person to proceed with litigation against the tavern upon showing that the defendant knew that the person was intoxicated at the time that person was served alcoholic beverages. Since the legislature has spoken since our Bis-sett decision, and has not exempted the intoxicated person from those persons who are permitted to recover, I find myself in a position where I must concur in allowing this case to go forward although I feel it to be poor public policy.


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE MORRISON, MR. JUSTICE HUNT,

text:
    JUNE MEAD, Plaintiff and Appellant, v. THOMAS M. McKITTRICK, individually and as a District Judge of the Eighth Judicial District of the State of Montana; Richard G. Gasvoda, individually and as a member of the Board of County Commissioners of Cascade County, Montana; Jack T. Whitaker and Patrick L. Ryan, as members of the Board of County Commissioners; and the County of Cascade, Montana, Defendants and Respondents.
    No. 85-523.
    Submitted June 3, 1986.
    Decided Oct. 21, 1986.
    Rehearing Denied Nov. 25, 1986.
    727 P.2d 517.

      MR. JUSTICE MORRISON filed dissenting opinion in which MR. JUSTICE HUNT joined.
    MR. JUSTICE HUNT filed dissenting opinion.
    James P. Reynolds, Helena, argued for plaintiff and appellant.
    John Bobinski, Dept, of Admin., Helena, argued for Judge McKittrick.
    Marra, Wenz, Johnson & Hopkins, Charles R. Johnson, Great Falls, argued for County and Co. Com’rs.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

June Mead appeals from an order of the Eighth Judicial District Court, Cascade County, granting defendants’ motions to dismiss Mead’s wrongful discharge suit.

We affirm.

June Mead raises two issues for our review:

1. Is a District Court judge immune, under Section 2-9-112(2), MCA, from suit for the summary discharge of his predecessor’s personal secretary?

2. Are the county and county commissioners immune, under Section 2-9-112(1), MCA, from a suit arising from an act of the judiciary?

June Mead began working for Cascade County as a deputy clerk in the Clerk of Court’s office in 1976. In 1979, Mead temporarily replaced Judge Coder’s personal secretary, who was on maternity leave. When the personal secretary decided against returning to work, her position was opened for applications. Mead applied and was hired for the position.

Mead continued to work for Judge Coder as his personal secretary until he resigned in late 1983. Thomas McKittrick was appointed to replace Judge Coder. Immediately upon taking office, Judge McKittrick informed Mead of his intention to open her position for applications. Mead applied but was not granted an interview. Judge Mc-Kittrick terminated Mead’s employment on January 6, 1984.

On January 17, 1984, Judge McKittrick sent Mead a letter giving his reasons for the termination. Mead asserts that the reasons in the letter merely outline work patterns she had established under Judge Coder. Mead believes her termination was unfair because Judge Mc-Kittrick had told her to continue her previous duties.

On July 6, 1984, Mead filed a complaint against Judge McKittrick, the members of the Cascade County Board of Commissioners and Cascade County, alleging: (1) violation of her right to due process of the law, (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, (4) wrongful discharge, and (5) fraud.

Defendants responded with motions to dismiss, alleging immunity among their defenses. Following oral argument on the issues, the District Court granted defendants’ motions. The trial judge held that Mead was a court employee rather than a county employee, and that her employment was “at-will.” Mead appealed the dismissal of her cause but dropped her breach of contract and fraud claims.

Issue No. 1

Is a district court judge immune, under Section 2-9-112(2), MCA, from suit for the summary discharge of his predecessor’s personal secretary?

Historically, judges have enjoyed absolute immunity for judicial acts. Pierson v. Ray (1967), 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288, 294. Montana has codified the doctrine of judicial immunity in Section 2-9-112(2), MCA, which provides:

“A member, officer, or agent of the judiciary is immune from suit for damages arising from his lawful discharge of an official duty associated with judicial actions of the court.”

The doctrine clothes Montana district courts with inherent and statutory powers to do all that is necessary to render their jurisdiction effective. Board of Commissioners of Flathead County v. Eleventh Judicial District Court (1979), 182 Mont. 463, 470, 597 P.2d 728, 732. The appointment and removal of key court employees is an effective judicial action.

The public policy of judicial immunity safeguards principled and independent decision-making. The contributions of a personal secretary are a significant part of judicial efficiency, which is why district court judges have the exclusive authority to choose their own personal secretaries. Section 3-1-113, MCA, is a general grant of power to the courts: “[W]hen jurisdiction is . . . conferred on a court or judicial officer, all the means necessary for the exercise of such jurisdiction are also given.” This section authorizes the district court to hire the employees necessary to carry out statutorily-mandated duties.

We can see no violation of public policy in a newly-elected or appointed district judge selecting his own personal secretary. Indeed, public policy is best served when newly-elected officials are free to select their own key staff members. Holley v. Preuss (1977), 172 Mont. 422, 427, 564 P.2d 1303, 1306. The efficient and proper administration of justice requires that judges have personal secretaries with whom they can work professionally and confidentially. As such, the personal secretary occupies a distinct and unique status among district court employees.

“[T]he modern judge differs from his predecessor in that he must rely more on his staff... A judge’s institutional personality, therefore, extends beyond his person.” Forrester v. White (7th Cir. 1986), 792 F.2d 647, 654. “[I]f an employee’s duties are intimately related to the functioning of the [judicial] process, then personnel decisions regarding that employee are also part of the process.” Forrester, 792 F.2d at 655.

Immediately upon appointment, Judge McKittrick began an orderly transition into judicial office. Judge McKittrick opened Mead’s position for new applicants and informed Mead of this fact.

As we have stated earlier: “The immunity statute applies to judicial acts with no stated limitation.” Knutson v. State of Montana (Mont. 1984), [211 Mont. 126,] 683 P.2d 488, 490, 41 St.Rep. 1258, 1260. Such acts naturally include the power to employ key court personnel.

In conclusion, Mead’s discharge was a judicial act, which is immune under Section 2-9-112(2), MCA.

Issue No. 2

Are the county and county commissioners immune, under Section 2-9-112(1), MCA, from a suit arising from an act of the judiciary?

Section 2-9-112(1), MCA, provides:

“The state and other governmental units are immune from suit for acts or omissions of the judiciary.”

In Knutson, 683 P.2d at 490, 41 St.Rep. at 1260, we held that “[Section 2-9-112(1)] applies to protect the state and governmental agencies whenever the judicial power of the state is put to use in a judicial action.” Since Mead’s discharge was a judicial act, the county and its commissioners cannot be liable, because the legislature has expressly immunized them. Furthermore, the immunity of the defendants is dispositive of any subordinate issues raised by Mead.

Affirmed.

MR. JUSTICES HARRISON, WEBER, SHEEHY and GULBRANDSON concur.

MR. JUSTICE MORRISON,

dissenting:

The cases are divided on the question of whether judicial immunity extends to acts of administration. The terminating of an employee is clearly an act of administration. Although I realize there is support for the position of the majority I feel that the better public policy is to recognize that judges, in the treatment of their personnel, are subject to the same rules to which others in society are subject.

Further, I feel that the majority opinion has not adequately treated the issue of whether the county is directly responsible for the plaintiff’s discharge. One important fact omitted from the majority opinion is that Judge McKittrick’s decision to terminate the plaintiff was reviewed and ultimately approved by the county. While the county is immune for Judge-McKittrick’s acts, the county is responsible for its own conduct.

June Mead was employed by Cascade County as a deputy clerk of court in 1976. In 1979 she was assigned to Judge Coder as a personal secretary. When Judge McKittrick decided her services were no longer needed in the judge’s office, the county had the option to reassign her to another position.

We should keep in mind that judgment was here entered on the pleadings. No discovery has been done and judicial intervention at this juncture is premature.

I would reverse and remand to allow discovery to go forward.

MR. JUSTICE HUNT,

dissenting:

I join in the dissent of Mr. Justice Frank B. Morrison. I would further dissent and add that because the majority does not adequately treat the issue of the county’s responsibility in this matter, the county’s conduct as an employer is improperly ignored.

The county is responsible for its own conduct. It did ratify Judge McKittrick’s decision to terminate plaintiffs employment. As such, Section 2-9-112, MCA, is not applicable here. The county, as plaintiff’s employer should be held accountable for express or implied promises made to plaintiff regarding her employment.

The county paid plaintiff’s salary, provided her with health insurance benefits and issued a county employee’s manual to her. She was given repeated pronouncement by various county officials that she indeed was a county employee. Understandably she assumed she was protected under terms similar to those in the employee manual.

These objective manifestions of her status as a county employee entitle her to an opportunity to present evidence on her allegations that the county breached its duty of good faith and fair dealing, denied her due process and wrongfully discharged her.

The District Court’s grant of summary judgment to defendants wrongly denied plaintiff this opportunity. I would reverse and remand this case to allow discovery to go forward.


author: MR. JUSTICE HARRISON

text:
    In re the MARRIAGE OF SHIRLEY REA JENSEN, now Shirley Rea Wanberg, Petitioner and Appellant, and GORDON STEVEN JENSEN, Respondent and Respondent.
    No. 86-10.
    Submitted on Briefs Aug. 7, 1986.
    Decided Oct. 20, 1986.
    727 P.2d 512.

      Rex Palmer, Missoula, for petitioner and appellant.
    Connell & Beers, Thomas J. Beers, Missoula, for respondent and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from an order of the District Court of the Fourth Judicial District in and for Missoula County, Montana. The District Court found respondent husband responsible for child support that was not paid prior to June 1, 1981. The court modified the amount of child support, made a supplemental decree regarding visitation part of the final decree, refused to hold the respondent in contempt, and made each party responsible for his own costs and attorney’s fees. The petitioner wife appeals. We affirm.

The parties in this action have been before this Court before. In Re the Marriage of Jensen (Mont. 1981), 629 P.2d 765, 38 St.Rep. 927. The facts prior to that decision are the same. In that action husband appealed the District Court’s award of back child support based on a percentage increase in his hourly wage rate, future support payments of $275 per child per month, and the order to pay his wife’s attorney’s fees. A stay of judgment was granted pending appeal. We upheld the District Court. Predictably the decision did not relieve the friction between the parties.

Husband (Steve) began making $550 monthly support payments after our 1981 decision. Because he did not pay the increased support until the appeal was final, he owed considerable arrearage and interest. Steve and appellant, Shirley, orally agreed that when he took the children for an extended visit his payment would be reduced proportionately with the number of days he had the children. Additionally, in January, 1982, Shirley, knowing Steve would be working fewer hours because of layoffs and strikes, orally agreed to a reduction of child support on a monthly basis during time of layoff and strike. Consequently, Steve has paid less than the total amount ordered by the District Court; however, he has lived up to the oral agreement with Shirley.

Realizing he was about to be transferred from Bozeman to Missoula in the spring of 1984, with a concomitant loss of about $5,000 in subsistence pay, Steve discussed with Shirley the possibility of a modification of child support. Shirley indicated she preferred the present oral arrangement to an actual modification — that is, a reduction when Steve was on strike, laid off, or had the children. Nevertheless, Steve petitioned the court for reduction, claiming a change in circumstances so substantial and continuing as to make the terms of the 1980 decree unconscionable. Shirley’s income had continued to rise since the 1980 modification, while Steve’s remained more or less the same, with the reduction when he moved to Missoula. Shirley appeals the order issued from that hearing.

The Court will consider the following issues:

(1) Whether a child support decree can be modified orally to reduce the support and if so, whether there was substantial evidence to find the oral modification binding;

(2) whether there was substantial evidence to support the court’s conclusion there had been a change in circumstances requiring a change in child support;

(3) whether it was error to modify the visitation provisions of the existing decree; and

(4) whether the court erred in denying attorney’s fees.

In reviewing orders of the District Court we presume the judgment of the District Court is correct. Reynolds v. Reynolds (Mont.1983), [203 Mont. 97,] 660 P.2d 90, 93, 40 St.Rep. 321, 324, and will reverse the District Court only when there is a clear abuse of discretion. Rule 52(a), M.R.Civ.P.

“The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. [Citing cases.]”

In Re the Marriage of Perry (Mont. 1985), [217 Mont. 162,] 704 P.2d 41, 43, 42 St.Rep. 1101, 1104.

Shirley argues the court’s findings of an oral modification of the child support provision is directly contrary to Section 40-4-208, MCA. The statute reads in pertinent part:

“(1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to the motion for modification.
“(2) (a) . . .
“(b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; or (ii) upon written consent of the parties . . .”

We have recognized that parties to a child support decree may orally modify the amount of support. See In Re the Marriage of Good (Mont. 1984), [213 Mont. 269,] 691 P.2d 1337, 1339, 41 St.Rep. 2109, 2111; Haaby v. Haaby (1974), 165 Mont. 475, 478, 529 P.2d 1387, 1388. The statute allows a court to modify a decree of support on two different theories. Under Subsection (2)(b)(i), the court may order modification upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. This statutory statement is similar in nature to a statement that a modification may be made only upon substantial circumstances rendering enforcement inequitable. In addition, under (2)(b)(ii), the court may make its order as to subsequently accruing installments based upon the written consent of the parties. The question then becomes whether an oral modification of the support or maintenance provisions of a decree is enforceable in Montana, and the extent of any such enforcement.

In the recent case of State of Washington ex rel. Blakeslee v. Horton (Mont. 1986), [222 Mont. 351,] 722 P.2d 1148, 43 St.Rep. 1321, the uncontradicted findings of the District Court established an oral agreement which had been carried out for fourteen years by both the former husband and wife. The District Court concluded that when parties mutually agree to support amounts different than those set forth in the decree, equity cannot allow a party to nullify such agreement and later to claim the benefit simply on the basis that there is a meter running totaling a dollar loss in child support. We affirmed the District Court and held that equity demanded the claim of the mother should fail.

In a similar manner, in In Re the Marriage of Cook (Mont. 1986), [223 Mont. 293,] 725 P.2d 562, 43 St.Rep. 1732, we agreed with the District Court that the mother was estopped from enforcing the support provision of the decree from the date she and the father had entered into an oral agreement modifying the amount of the support provisions. We noted the provisions of Section 40-4-208, MCA, are subject to the doctrine of equitable estoppel under the facts of the case, pointing out that the doctrine may be applied only in those cases where there is clear and compelling evidence of its elements.

In the present case, we again find an oral agreement between a mother and father which has been followed for several years. We therefore hold that in Montana a decree for support may be modified on equitable grounds by a court where there is clear and compelling evidence of the terms of an oral agreement of modification. We further hold such modification may be applied only to maintenance and support payments to be made subsequent to the oral agreement for modification. These conclusions are consistent with Section 40-4-208, MCA, which limits modifications to installments subsequently accruing, and which also limits the power of the district court to modify, except upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable where there is no written consent of the parties. These conclusions also are consistent with both Blakeslee and Cook where we enforced oral agreements pertaining to installments of support subsequently accruing.

We further hold that where an oral agreement for the modification of maintenance or support payments is enforced, not only must the agreement be made in good faith, but the mother or father may not impair the rights of any assignee of support payments based upon public assistance paid to a party. In the present case the child support decree can be modified orally to reduce subsequently accruing support payments.

The next question before the Court is whether there is an enforceable oral agreement between Shirley and Steve. A party to an agreement which has been performed for some length of time is es-topped to deny its validity. A letter from Shirley to Steve provides written manifestation of the agreement: “We have always come in agreement upon the reduction of support during layoffs.” She also testified, “We discussed the shortage almost every time there was a shortage.” Steve testified that he and Shirley had an agreement whereby he would reduce child support payments during strikes and layoffs or when he had the children. There is substantial evidence to support the finding of the District Court an enforceable oral agreement had been made.

On finding there is an enforceable oral agreement, we must consider whether there is substantial evidence that there has been a change in circumstances requiring a change in child support. Not surprisingly, conflicting evidence as to the parties’ financial circumstances was offered. It is the duty and function of the District Court to resolve such conflict and its findings will not be disturbed on appeal where they are based on substantial, though conflicting evidence. In Re Support of Rockman (Mont. 1985), [217 Mont. 498,] 705 P.2d 590, 592, 42 St.Rep. 1323, 1325.

While Steve’s wages have been reduced, Shirley’s financial situation has improved. She has remarried and her new husband has a steady job. They are buying a piano and an expensive car. Shirley owns two pieces of rental property. They have no day-care expenses because of Shirley’s work schedule, and recently took a trip to Hawaii. Steve lives in a fifth-wheel travel trailer, and has assumed the financial obligations for his disabled girlfriend and her young son. He owns very little personal property and no income producing property. His employment is subject to strikes and layoffs, yet he has tried to make payments as he is able. The court found these changed circumstances so substantial and continuing as to make the terms of the 1980 modification unconscionable pursuant to Section 40-4-208(2) (b)(i), MCA. The court’s findings are not in error.

Shirley’s argument it was error for the District Court not to grant the petition for child support income deduction is moot. The day this appeal was filed, the parties executed a stipulation that Steve was to pay $3,460 to Shirley, and Shirley was to release all Steve’s funds held by the Missoula County Sheriff’s Department in satisfaction of his obligations to her pursuant to paragraph 1 of the District Court’s order of September 27, 1985.

Shirley contends it was error for the court to modify the visitation provision of the existing decree because neither she nor the court had been served notice of the motion to modify. “Under Section 40-4-217(3), MCA, the trial court may modify visitation rights when the modification would be in the best interest of the children.” Gall v. Gall (1980), 187 Mont. 17, 19, 608 P.2d 496, 498. The original decree allowed Steve reasonable visitation rights on the then apparent ability of the parties to agree. Testimony during the hearing indicated conflict between Shirley, Steve and Steve’s girlfriend over visitation. The court did not abuse its discretion in concluding visitation periods needed to be spelled out to preclude further disagreements between the parties. There is no evidence such modification would not be in the best interests of the children. The modification clarifies visitation to guarantee them frequent and substantial contact with their father. In view of the continuing instances of controversy between the parties, such a decision is in the best interests of the children.

Shirley is not entitled to attorney’s fees. Award of attorney’s fees under the statute is not mandatory. Section 40-4-110, MCA. In Re the Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 501, 41 St.Rep. 2419, 2425. Shirley argues the separation agreement and an award of attorney’s fees in Jensen, supra, 629 P.2d 765, 38 St.Rep. 927, entitles her to cost of suit in this action. However, in that case she prevailed and made a showing of need. In the case at bar she has made no showing of need and is not the prevailing party. We will not disturb the District Court’s refusal to award attorney’s fees.

The order of the District Court is approved.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY, GULBRANDSON, MORRISON and HUNT concur.


author: MR. JUSTICE SHEEHY

text:
    MARY HELEN BAIN and Allyn M. Bain, husband and wife, Plaintiffs and Appellants, v. DANIEL G. GLEASON, Farmers Insurance Exchange, a reciprocal or interinsurance exchange, Defendants and Respondents.
    No. 86-113.
    Submitted on Briefs June 19, 1986.
    Decided Oct. 21, 1986.
    726 P.2d 1153.

      Anderson, Edwards & Molloy, Donald W. Molloy, Billings, for plaintiff and appellants.
    Poore, Roth & Robinson, C. Richard Anderson, Butte, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Mary Helen Bain had a claim for injuries received by her through the negligence of Daniel P. Gleason, a driver insured by Farmers Insurance Exchange (Farmers). Mary Helen’s husband, Allyn W. Bain had a claim for damages against Daniel P. Gleason for Allyn’s loss of consortium through the injuries to his wife. Farmers’ applicable motor vehicle liability insurance policy contains provisions defining limited coverage for “each person” injured in any one occurrence and for “each occurrence.” Allyn made claim before the District Court, Third Judicial District, Powell County, that his claim for consortium was separately covered by Farmers’ policy of insurance issued to Gleason. The District Court held that Mary Helen’s claim for her damages and Allyn’s claim for consortium, were together subject to the “each person” limitation of the insurance policy. We affirm.

At the time of the incident wherein Mary Helen was injured, Daniel P. Gleason’s father additionally insured with Farmers two other motor vehicles owned by the father. Daniel Gleason lived with his father, in the same residence, but Daniel owned the vehicle he was driving when he injured Mary Helen, and Daniel separately insured his motor vehicle with Farmers. Allyn and Mary Helen claim additional coverage extends to them by virtue of the provisions of the father’s other two policies. The District Court held not and again, we affirm.

I.

On May 24, 1983, Mary Helen Bain was assisting a stranded motorist on Green House Road near Deer Lodge, Montana. Mary Helen was pouring gas from a gas can into the tank of the stranded automobile as Daniel Gleason drove his 1970 Ford on the same road. Gleason drove his Ford into the back of the stranded automobile trapping Mary Helen Bain between the cars.

As a result of the collision and being struck by Gleason’s Ford, Mary Helen Bain was severely injured. She suffered broken legs, a broken pelvis, and as a result of her injuries, her left leg was amputated.

At the time of the collision, Daniel Gleason was living with his parents in Deer Lodge, Montana. Farmers Insurance Group had issued three policies of insurance covering motor vehicles owned by occupants of that same household. One policy of insurance was issued to Daniel Gleason and covered the 1970 Ford automobile which he was driving when he collided with Mary Helen. A second policy was issued to Patrick Gleason, Daniel’s father, covering Patrick’s 1973 Corona. The third policy was issued also to the father, Patrick Gleason, to insure Patrick’s 1981 Buick Skylark.

Each of the insurance policies provided bodily injury coverage in the amount of $25,000 per person, and $50,000 per occurrence. The terms of the three insurance policies were the same, except for the named insureds and the vehicles covered.

Daniel Gleason was admittedly negligent in driving his 1970 Ford into the back of the stranded car trapping Mary Helen Bain between the cars.

Mary Helen’s medical expenses at the time this case was submitted to the District Court exceeded $20,000. She continues to incur medical expenses and will incur them for the balance of her life.

Farmers Insurance Group has paid $25,000 to Mary Helen and Allyn Bain, individually and as husband and wife. It is the position of Farmers that the $25,000 payment is the full extent of and the limit of its liability under the policy issued to Daniel Gleason on May 24, 1983. Mary Helen and Allyn contend that under the terms of the three policies, they are entitled to the maximum amount of insurance available.

II.

First off, counsel for the Bains point out that no Montana Supreme Court case has directly recognized that a spouse’s claim for loss of consortium constitutes a claim which is a distinct and independent cause of action. True, we have alluded to elements of consortium as in Wallace v. Wallace (1929), 85 Mont. 492, 514, 279 P. 374, 382. The federal courts acting in Montana have recognized claims for loss of consortium as distinct and independent causes of action. Duffey v. Lipsman-Fulkerson and Co. (D. Mont. 1961), 200 F.Supp. 71; Dutton v. HighTower and Lubrecht Construction Co. (D. Mont. 1963), 214 F. Supp. 298; Johnson v. United States (D. Mont. 1980), 496 F.Supp. 597 (aff’d in part, rev’d in part, and remanded), 704 F.2d 1431 (9th Cir. 1983). To lay any doubt aside, we agree with the federal courts that a cause of action for consortium of the deprived spouse is separate and distinct from the claim of the injured spouse and that the basis for a consortium claim lies in the Montana statutes in which the husband and wife contract for obligations of mutual respect, fidelity, and support. Section 40-2-101, MCA. We further agree with the court in Dutton, supra, that consortium includes a legal right to the aid, protection, affection and society of the other spouse.

III.

Is the husband’s claim for consortium here subject to the “each person” limit of liability provided in Farmers’ policy issued to Daniel Gleason?

There is no shortage of cases in which this question has been presented to different courts. Without burdening this opinion with long citations, it is enough to say that the cases can be found by reference to the Annotation, Construction and Application of Provision in Liability Policy Limiting the Amount of Insurer’s Liability to One Person, 13 A.L.R.3d. 1228 (1967 & Supp. 1986). See also 5A Words and Phrases, “Bodily Injury” (1968 & Supp. 1986). The great majority of the decided cases have held that the consortium claim is included within the “each person” limitation. The reasons given for the decisions however are not always uniform, since they depend on the language of the policy before the respective courts, and the applicable statutes of the state involved may have different terms. We therefore determine to examine for ourselves this question in the light of the insurance policy provisions now before us, and of our applicable statutes.

Since Montana has a mandatory motor vehicle liability insurance law, we first look to the terms of the mandatory insurance statutes to determine what they require, and then to the terms of the insurance policy to find whether the insurance policy complies with the mandatory law. Following that, we will look to the terms of the insurance policy to determine if under the policy, irrespective of the mandatory insurance law, coverage is extended to a consortium claim beyond that provided for in the “each person” provision.

Section 61-6-301, MCA, provides in pertinent part:

“(1) Every owner of a motor vehicle . . . shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle ... in an amount not less than that required by 61-6-103 . . . .”

The referred-to statute, Section 61-6-103, MCA, contains the following pertinent provisions:

“(2) Such owner’s policy of liability insurance shall:
“(b) insure the person named therein and any other person, as insured, using any such motor vehicle . . . against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle . . . subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows:
“(i) $25,000 because of bodily injury to or death of one person in any one accident and subject to said limit for one person;
“(ii) $50,000 because of bodily injury to or death of two or more persons in any one accident; . . . .”

Our statutes do not define “bodily injury” for this subject.

We turn now to the terms of the insurance policy issued by Farmers to Daniel Gleason. It provides:

. . the Company . . . agrees . . .:
“To pay all damages the insured becomes legally obligated to pay because of:
“(A) bodily injury to any person . . .
“LIMITS OF LIABILITY
“The limit of bodily injury liability stated in the Declarations as applicable to “each person” is the limit of the Company’s liability for all damages arising out of bodily injury sustained by one person in any one occurrence. The limit of such liability stated in the Declarations as applicable to “each occurrence” is, subject to the above provision respecting each person, the total limit of the Company’s liability for all damages arising out of bodily injury sustained by two or more persons in any one occurrence.
“Bodily Injury means bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by a person.
“Damages with respect to Coverage A [bodily injury Coverage] includes damages for care and loss of services.”

Plainly it is the public policy of this State, under Section 61-6-301, MCA, and Section 61-6-103, MCA, that every owner of a motor vehicle operated in Montana must procure a policy of insurance which continuously provides coverage up to the limits set forth in the two statutes. The provisions of the two statues are a part of every policy of motor vehicle insurance issued in this State under the mandatory law and if the provisions of the insurance policy countermand or diminish the statutory requirements, the policy nevertheless will be considered to provide the statutory requirements. Farmers recognizes this because in each of its policies of insurance it provides that “[p]olicy terms which conflict with the statutes of the state wherein this policy is issued are hereby amended to conform to such statutes.”

In this case, the language of the statutes and of the policies are substantially similar and it is apparent that the policy terms used by Farmers are in compliance with our mandatory motor vehicle liability insurance law.

In considering the consortium claim, and where it fits into the mandatory motor vehicle liability insurance statutes, we examine closely Section 61-6-103, MCA, supra. The statute requires the motor vehicle owner to “insure the . . . insured, . . . against loss from the liability imposed by law for damages . . . subject to limits . . . as follows: . . . (i) $25,000 because of bodily injury to .. . one person in any one accident[.]” (Emphasis supplied.)

It is certain that liability is imposed by law against a negligent driver who causes bodily injuries to one person in any one accident, and for such liability, the mandatory motor vehicle liability insurance statute applies. It seems equally certain that if the injured party is a spouse, and the injuries deprive the other spouse of consortium, liability is imposed by law against the negligent driver for consortium damages “because of bodily injury to . . . one person.” In other words, the liability of the negligent driver to the injured party, and to the deprived spouse, both stem from the same bodily injury sustained by “one person in . . . one accident.” The statute obviously contemplates that no matter who suffers damages, if the respective damages stem from bodily injury to one person, all of the damages are subject to the “one accident” limitation, in this case, the limit of $25,000.

Counsel for Bains acknowledge that a deprived spouse’s action for loss of consortium is derivative from the injured spouse’s injuries, but contend that it is derivative only to the extent that the negligent driver must be proved to have caused the original injury. They support their argument with the holdings in cases that regard an action for consortium loss as a separate and independent cause of action which is the property of the impaired spouse and not controllable by the injured spouse. The point also to the injuries of Mary Helen as different in nature from the injuries suffered by Allyn, such that the cause of action for loss of consortium in favor of the deprived spouse is an independent action which stands on its own footing. Wolff v. Du Puis (1963), 233 Or. 317, 378 P.2d 707, 709.

Counsel for Farmers point to Wohlberg v. Hartford Accident and Indemnity Co. (D. Mont. 1967), 262 F.Supp. 711. In that case the federal district court said:

“[T]he words ‘one person’ have been held to refer to the injured person, and the limit specified for injury to one person applies although others suffered loss from the injury to such person, and although the injured person suffers special damages.
“Under this construction of the limitation provision, a husband is not entitled to recover from the insurance company an additional amount over the limit specified for one person for consequential damages to himself resulting from the injury to his wife, such as damages for loss of her services or consortium and for the cost of her care and treatment. (Footnotes omitted.) 8 Blashfield Automobile Law and Practice (1965), Section 345.2, pages 458-459. See also cases cited in Holtz v. Mutual Service Casualty Company, 264 Minn. 121, 117 N.W.2d 767 (1962) and the annotation at 150 A.L.R. 1154.”

262 F.Supp. at 712.

Bains contend that Wohlberg should not control us here, because it was decided before the adoption of the mandatory motor vehicle liability insurance statutes. The trouble with that argument is that Wohlberg fits neatly into the statutory scheme of the mandatory statutes. Nothing in the mandatory statutes is adverse to Wohlberg.

In order to escape the “one person” provision of the mandatory liability insurance law, Allyn must show that his cause of action comes within the “two or more persons” clause of the statute. There is, however, no comfort in the language of the statute itself. Section 61-6-103, MCA, provides for limitation of “$50,000 because of bodily injury to or death of two or more persons in any one action.” Two persons did not receive bodily injury in the unfortunate accident which is the basis of this case. Only Mary Helen received bodily injury. Plainly the motor vehicle liability insurance statute cannot be interpreted to require additional coverage for a consortium cause of action over and above the coverage provided for damages imposed by law through a solely-injured person in one accident.

Recognizing this, counsel contended that bodily injury is not required to establish a cause of action for consortium. On several occasions this Court has recognized the principle that recovery may be allowed even though there is no contemporaneous physical injury. Johnson v. SuperSave Markets, Inc. (Mont. 1984), [211 Mont. 465,] 686 P.2d 209, 41 St.Rep. 1495; Versland v. Caron Transport (Mont. 1983), [206 Mont. 313,] 671 P.2d 583, 40 St.Rep. 1681; Dawson v. Hill & Hill Truck Lines (Mont. 1983), [206 Mont. 325,] 671 P.2d 589, 40 St.Rep. 1689; Ewalt v. Scott (Mont. 1983), [206 Mont. 503,] 675 P.2d 77, [40 St.Rep. 1809]. Those cases, however, did not involve “one person,” “one accident” provisions of insurance policies nor how recompense for damages for loss of consortium fitted into the mandatory motor vehicle liability insurance statutes.

We therefore interpret the mandatory motor vehicle insurance statutes now in effect to mean that the cause of action for loss of consortium by the deprived spouse and the cause of action for bodily injuries by the injured spouse are subject together to the “one person limitation” found in Section 61-6-103, MCA, as referred to in Section 61-6-301, MCA.

IV.

We now come to consider the terms of the insurance policy itself. Much of what we have said foregoing relating to the interpretation of the mandatory motor vehicle liability insurance statutes applies to the provisions of the insurance policy which we have set forth above. We must, however, examine the insurance policy provisions to determine whether, even though the statutes do not require it, this particular insurance policy granted additional coverage to a cause of action for consortium, either by direct policy provision or by inartful drafting.

We are aware of three cases where courts in sister jurisdictions have determined that policy provisions required coverage for loss of consortium beyond the “one person,” or “each person” limitations.

One such case is Allstate Insurance Co. v. Handegard (App.1984), 70 Or.App. 262, 688 P.2d 1387. In Allstate, the insurance policy defined bodily injury as “bodily injury, sickness, disease or death to any person, including loss of services.” Id. 688 P.2d at 1388. The Oregon court pointed out that the term “bodily injury” was defined in a manner different from the ordinary understanding of that term under the policy definition and that since a bodily injury included “loss of services,” under the terms of the policy. Id. at 1389-90. Accordingly, the Oregon court extended coverage over and above the “each person” limitation to the “each occurrence” limitation since more than one bodily injury was involved.

In the case before us, as we have shown above, the provision of the policy defining “bodily injury” does not include loss of services. Rather, the Farmers policy defines “damages” as including loss of services. The Oregon case of Allstate is therefore inapplicable here.

The second case is Abellon v. Hartford Insurance Co. (1985), 167 Cal.App.3d 21, 212 Cal.Reptr. 852. In Abellon, the California court found a wide-open provision of coverage for “each accident.” The Hartford policy provided “subject to the limit ‘of each person,’ the most [Hartford] will pay for all damages resulted from bodily injury caused by any one accident” is $500,000. Id. 167 Cal.Rptr. at 853. Thus the Hartford policy did not limit the “each accident” clause to bodily injuries caused to one person as does our statute, and as does the Farmers policy before us. The California Court extended coverage in the Hartford case under the “each accident” clause because of the lack of specificity in the Hartford policy that the bodily injury under the “each accident” clause must be suffered by two or more persons. We do not have such a clause here.

Our interpretation of the Farmers policy in the case at bar must follow our interpretation of the statutes as they apply to mandatory motor vehicle liability insurance. It is plain, under our statutes, and under the policy provisions here that the “each person” limitation refers to all damages by whomever suffered resulting from one bodily injury in one accident; the “each accident” limitation applies when two or more persons suffer bodily injury in the same accident.

The third case that extended coverage for loss of consortium under the “each accident” clause of the policy is that of Bilodeau v. Lumberman’s Mutual Casualty Co. (1984), 392 Mass. 537, 467 N.E.2d. 137. In Bilodeau, as in the Hartford case, supra, the Massachusetts court had before it a policy the terms of which were ambiguous. Under that policy, the company agreed to pay damages to the “injured person” and contained language to the effect that “the most we will pay for injuries to two or more people as a result of any one accident is a total of [$20,000].” Id. 467 N.E.2d at 139. The Massachusetts court determined that the “injury” included loss of consortium, because it was not limited to bodily injury and that the consortium clause was covered under the “each accident clause.” Id. at 142. Again that clause is much different that the clause facing us in the case at bar.

Our interpretation of the Farmers’ policy in the case at bar must follow our interpretation of the statutes as they apply to mandatory motor vehicle liability insurance. It is plain under our statutes, and under the policy provisions here that the “each person” limitation refers to all damages imposed by law by whomever suffered resulting from one bodily injury and one accident; the “each accident” limitation applies when two or more persons suffer bodily injury in the same accident.

Taking another tack, the Bains argue here that the words “bodily injury” do not necessarily require a physical injury to a person; that this Court has held that emotional and mental stress are “injuries” which are compensable as damages. Versland v. Caron Transport, supra; Dawson v. Hill and Hill Truck Lines, supra; French v. Ralph E. Moore, Inc. (Mont. 1983), [203 Mont. 327,] 40 St.Rep. 481, 661 P.2d 844.

As we noted above, the Montana mandatory motor vehicle liability insurance statutes do not define “bodily injury.” The policy in this case however does provide a definition for damages, which includes damages “for care and loss of services.” Thus when under the policy here, Farmers agrees to pay the insured for the liability imposed by law “for damages . . . because of bodily injury to one person in any one accident.” The policy term of “damages” obviously includes the consortium claim within the damages limited by the “one person” provision. The policy term “for care and loss of services” is broad enough to cover all elements of damages for loss of consortium.

Bains also point to the definition in the policy of bodily injury, claiming an ambiguity. The definition states that “bodily injury means bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by a person.” Bains contend that defining a term by repeating the same term, such as “bodily injury means bodily injury” is in itself ambiguous. Gertrude Stein years ago said that “a rose is a rose is a rose,” and all of the literateurs thought Gertrude Stein was marvelous. If we define an apple as an apple, the definition may be ridiculous, but it is not ambiguous. Bodily injury does not become ambiguous simply because it is defined as bodily injury, especially since the term can be plainly understood as meaning physical injury to a person.

We find no ambiguity otherwise in Farmers’ policy to change this result.

V.

The remaining issue to be resolved in this case is whether either Allyn or Mary Helen or both are entitled to coverage under the two additional policies of insurance that had been obtained by Daniel Gleason’s father on two separate automobiles not involved in the collision with Mary Helen.

In short, Bains contend that Daniel is an insured under the father’s policies because Daniel is a relative of his father, and policy provisions which are construed to mean that Daniel is not a relative of his father are nonsensical, and are to be given no effect.

The pertinent terms of the father’s policies are these:

“Insured means (1)
“Definition of insured
“(b) with respect to a non-owned automobile,
“(1) the name insured or a relative
“Non-owned automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.
“Relative means a relative of the named insured who is a resident of the same household, provided neither such relative nor his spouse owns an automobile.”

Again, unfortunately for the Bains, we find no comfort or coverage for them under the additional policies owned by Daniel Gleason’s father. The policies can only be interpreted to mean that if the name insured under the policies [Patrick Gleason] has a relative living with him in the same household, and that a relative or his spouse owns separately another automobile which is not covered under the same policy procured by the named insured, the automobile owned or frequently used by the relative is not entitled to coverage under the father’s policies here because (1) it is not an non-owned automobile entitled to such coverage, and (2) the relative is not a relative within the terms of the policy. The language of the father’s policies cannot be construed in any other way.

VI.

Accordingly, we affirm the judgment of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, GULBRANDSON and HUNT concur.