No. 13013 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY, 

Plaintiff and Appellant, 

JAMES P. LEARY, et al., 

Defendant and Respondent. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record : 

For Appellant: 

McKeon and Skakles, Anaconda, Montana 

Michael McKeon argued, Anaconda, Montana 

For Respondent: 

Scanlon and Connors, Anaconda, Montana 

Joseph C. Connors argued, Anaconda, Montana 

Submitted: November 4, 1975 

Decided: DEC 3 0 1975 

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Filed: JE~,JJ YI5 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from an order of the district court, 

Silver Bow County, granting a summary judgment in an action 

to declare the rights and duties of an insurance company. 

On July 27, 1973, Herman and Sylvia Meyers, husband and 

wife, were involved in an automobile accident approximately 

ten miles south of Butte, Montana. Herman Meyers was driving 

the automobile, with Sylvia Meyers as a passenger. Through the 

alleged negligence of Herman Meyers, their automobile collided 

with another motor vehicle, killing Herman Meyers instantly. 

Sylvia Meyers survived for eleven days, dying on August 7, 1973, 

as a result of injuries received in the accident. 

Two suits were filed in district court. The first suit 

was a separate cause of action by Edward Meyers, the son of Herman 

and Sylvia Meyers, against Herman Meyer's estate, for the wrongful 

death of Sylvia Meyers. The second suit was by Jack M. Scanlon, 

administrator of the estate of Sylvia Meyers, for medical, hospital 

and funeral expenses and for pain and suffering. Both suits were 

based on the alleged gross negligence of Herman Meyers in the 

operation of the automobile. 

After the commencement of these suits, James P. Leary, 

administrator of Herman Meyers' estate, tendered the suit papers 

to the insurance company to provide a defense under the terms 

of the automobile liability policy issued to Herman Meyers. The 

insurance company subsequently filed a complaint seeking a 

declaratory judgment as to its rights and duties under the insurance policy. 

After the answer was filed, all parties moved for a 

summary judgment. The district court granted respondents' motion 

and denied appellant's motion. The applicable portions of the 

summary judgment provide: 

"IT IS ORDERED that the death of Plaintiff's 

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insured Herman H. Meyers, prior to the death 

of his surviving spouse terminated the marital 

relationship and the insurance policy defense 

[interfamily immunity exclusion] relied upon 

by the Plaintiff as a matter of law. 

"IT IS FURTHER ORDERED that the insurance policy 

defense based upon the interfamily immunity 

doctrine relied upon by the plaintiff is void as 

contra to the public policy of this state and is 

discriminatory." 

The order also required the insurance company to defend the 

estate of Herman Meyers against claims of the son and the claim 

of the estate of Sylvia Meyers, and to pay up to its policy 

limits any amounts it might become obligated to pay as a result 

of this accident. 

The insurance company appeals from this summary judgment. 

We have been asked to review the interfamily tort immunity doctrine as applied in Montana, and determine whether it is 

void as contrary to public policy. 

This Court in State ex rel. Angvall v. Dist. Ct., 151 

Mont. 483, 484, 444 P.2d 370, has always followed the rule that: 

" * * * a wife may not maintain an action 

against her husband for personal injuries 

[inflicted] upon her by her husband while 

they are married." 

This position was first declared in Conley v. Conley, 92 Mont. 

425, 15 P.2d 922, and was reaffirmed in Kelly v. Williams, 94 

Mont. 19, 21 P.2d 58, and Angvall. 

This rule is based on the common law rule prohibiting 

suits between husband and wife. Respondents ask that this Court 

reject the common law doctrine as being opposed to the public 

policy. The Oregon Supreme Court faced with a similar request 

regarding interfamily tort immunity in Smith v. Smith, 205 Or. 

286, 287 P.2d 572, 578, held: 

"The question presented is, therefore, whether 

this court should in a case of this kind express 

its own conclusions as to the public policy of 

the state relative to this issue. In that connection we recognize that when the public policy 
of the state is clearly expressed by statute, 

it will control, and that in general, questions 

of public policy are primarily, though not exclusively, for legislative determination." 

The Montana Legislature has enacted statutes granting a 

married woman the right to prosecute and defend actions in her 

own name (section 36-110, R.C.M. 1947) and sue or be sued as 

though she were sole (section 36-128, R.C.M. 1947). Respondents argue these statutes modify the common law doctrine so as 

to allow tort suits between husband and wife. We do not agree. 

We believe the United States District Court for the District 

of Montana, in Dutton v. Hightower and Lubrecht Construction Co., 

214 F.Supp. 298, 300, was correct in stating these statutes 

" * * * are procedural and create no new rights, but 

only remove the common law disability of married women to enforce 

their rights otherwise created or existing." 

The District of Columbia Married Woman's Act was similarly 

viewed in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 

L Ed 1180, 1182, wherein the Supreme Court stated: 

"The statute was not intended to give a right 

of action as against the husband, but to allow 

the wife, in her own name, to maintain actions 

of tort which, at common law, must be brought 

in the joint names of herself and husband." 

The intervening death of Herman Meyers would not end the 

tort immunity as the cause of action arose during coveture, which 

is the critical time for imposition of the doctrine and defense. 

Angvall' supra. 

Respondents cite the minority rule allowing interspousal 

tort actions by judicial modification of the common law rule, 

as stated in Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343, 

and citations contained therein. See, also, Karell, Toward 

Abolition of Interspousal Tort Immunity, 36 Mont.L.Rev. 251. 

We do not believe this is an area requiring judicial modification 

of the common law to prevent great injustice. This is a question 
of public policy best left to the legislative branch of government which is the proper body to determine and set forth public 

policy. 

a 

Respondents argue that their rights to recover as/persona1 representative of the deceased and as son of the deceased are 

independent of the potential cause of action by Sylvia Meyers 

against Herman Meyers and are not barred by the interfamily tort 

immunity doctrine. 

Section 93-2824, R.C.M. 1947, provides: 

"An action, or cause of action, or defense, shall 

not abate by death, or other disability of a 

party, or by the transfer of any interest therein, 

but shall in all cases, where a cause of action 

or defense arose in favor of such party prior 

to his death, or other disability, or transfer 

of interest therein, survive, and be maintained 

by his representatives or successors in interest; 

and in case such action has not been begun or 

defense interposed, the action may be begun or 

defense set up in the name of his representatives 

or successors in interest * * *". 

This statute gives a derivative right of action to the representative as the language "where a cause of action or defense arose 

in favor of such party prior to his death" clearly indicates. 

The West Virginia Supreme Court in Wright v. Davis, 132 W.Va. 

722, 53 S.E.2d 335, 336, said of such a statute: 

" * * * this statute gives a right of action 

to the personal representative of the deceased 

only in case the deceased might have maintained 

an action, but failed to do so, against a defendant who is liable for damages." 

Sylvia Meyers could not have maintained a cause of action 

prior to her death due to the interfamily tort immunity doctrine, 

therefore no cause of action could flow to her personal representative. The husband's personal representative would be able to 

avail himself of the defense of interfamily tort immunity, because the defense arose prior to his death, therefore it survived his death. 

The son claims wrongful death damages under 
section 93-2810, R.C.M. 1947 : 

"When the death of one person, not being a 

minor, is caused by the wrongful act or neglect 

of another, his heirs or personal representatives 

may maintain an action for damages against the 

person causing the death * * *." 

If the son can recover wrongful death damages under the 

statute, he would have a right superior to what the mother had 

during her lifetime. This Court has held in Melville v. ButteBalaklava Copper Co. 47 Mont. 1, 12, 130 P. 441, quoting from 

Northern Pac. Ry. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 

L Ed 513, regarding workmen's compensation recoveries for wrongful death: 

"I * * *It cannot be that, if the death was caused 

by a rightful act, or an unintentional act with 

no omission of duty owing to the decedent, it can 

be considered wrongful or negligent at the suit of 

the heirs of the decedent. They claim under him, 

and they can recover only in case he could have 

recovered damages had he not been killed, but only 

injured. The company is not under two different 

measures of obligation--one to the passenger and 

another to his heirs. * * *" 

See also, Fisher v. Msla. White Pine v. Mich. Mut. Co., 164 

Mont. 41, 518 P.2d 795. 

In the instant case, Sylvia Meyers could not recover for 

injuries should she have lived, therefore her son cannot recover 

for wrongful death due to the fact she died. 

The husband's insurer, appellant here, contends the 

district court erred in finding the household exclusion in the 

husband's automobile liability insurance policy was void as being 

contra to public policy. 

The policy provides: 

"This insurance does not apply under Coverage A 

to Bodily injury to any insured or member of the 

family of the insured residing in the same household as the insured." 

If this Court had found the doctrine of interfamily tort 

immunity to be void, the validity of the policy provision would 
require further examination. Since we have held the doctrine 

remains valid in Montana, the underlying basis for the household exclusion remains valid. 

The household exclusion, on its face, has been held by 

this Court as not being against public policy in Lewis v. 

Mid-Century Ins. Co. 152 Mont. 328, 449 P.2d 679. We reaffirm 

that holding. 

The insurance company is not liable to the estate of 

Sylvia Meyers, thus it has no duty to defend her claim against 

the estate of Herman Meyers, nor to defend the claim of the son 

against the estate of Herman Meyers. The duty of the insurance 

company to defend is limited only to those facts which are part 

of the covered risk. Atcheson v. Safeco Insurance Co., 165 Mont. 

239, 527 P.2d 549, 31 St.Rep. 839. In the instant case the facts 

set forth in the complaint are excluded from the covered risk by 

the household exclusion, therefore the insurance company has no 

duty to defend. 

The order of the district court is reversed. The cause 

is remanded to the district court with directions to enter an 

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We concur: / 

u Jus ices