IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES H. 

DOLORES 

JAMES H. 

DAWSON, Individually, 

J. DAWSON, Individually, 

DAWSOlJ as Personal Representative, 

Plaintiffs and Petitioners, 

-vsHILL & HILL TRUCK LINES, 

Defendant and Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioners: 

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

lvlontana 

For Respondent: 

Robert J. Emrnons, Great Falls, Montana 

-"- 

Submitted on Briefs: June 30, 1983 

Decided: October 21, 1383 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

By declaratory relief, petitioners request this Court to 

answer the following question certified by the United States 

District Court for the District of Montana, Great Falls 

Division: 

"Are damages for the sorrow, mental distress or 

grief of the parents of a deceased minor 

recoverable in a wrongful death action brought 

pursuant to section 27-1-512, MCA, 1979?" 

This is a wrongful death action arising out of a 

five-vehicle crash which occurred on a snowy day in January, 

1982, on U.S. Highway 87 between Belt and Great Falls, 

Montana. The petitioners, James H. Dawson and Dolores J. 

Dawson, allege that a driver for the defendant, Hill & Hill 

Truck Lines, attempted to pass two vehicles even though the 

weather conditions made it impossible for him to see traffic 

approaching from the opposite direction. Before the driver 

could return to his lane of traffic, petitioners allege that 

his loaded and protruding flatbed trailer was struck by a 

gasoline tanker truck, which was proceeding from the opposite 

direction. The petitioners' son and daughter were in one of 

the cars being passed. As a result of the accident, the 

Dawsons' seventeen-year old son was killed and a daughter was 

injured . 

The deceased was the petitioners' only son. Petitioners 

allege he was an outstanding individual and student who would 

have been the valedictorian of his graduating high school 

class had he lived another four months. By this request for 

declaratory relief, the petitioners have asked this Court to 

recognize that "just" damages authorized by statute include 

the mental distress and anxiety suffered by petitioners as a 

result of the wrongful death of their son. 
The statute governing damages which may be awarded in 

an action brought under section 27-1-512, MCA, is section 

27-1-323, MCA, which provides: 

"In every action [for wrongful death], such damages 

may be given as under all the circumstances of the 

case may be just. " 

Montana has not allowed wrongful death awards to be 

unrestricted. Rather, we have followed the pecuniary loss 

rule, although recovery is permitted for loss of society and 

companionship to the extent such loss has a pecuniary value. 

Mize v. Rocky Mountain Bell Telephone Co. (1909), 38 Monk. 

521, 100 P. 971; Hollingsworth v. Davis-Daly Estates Copper 

co (1909), 38 Mont. 143, 99 P. 142. 

The majority of jurisdictions has consistently refused 

to permit recovery for mental anguish in a wrongful death 

action. In so doing, these jurisdictions have followed the 

English decision rendered in Blake v. Midland Railway Co. (QB 

Prior to the Blake decision, the British Parliament 

enacted Lord Campbell's Act which, in pertinent part, 

provided : 

" [W] henever the death of a person shall be caused 

by wrongful act, neglect, or default . . . such as 

would have entitled the parties injured to maintain 

an action and recover damages in respect thereof, 

then and in every such case the person who would 

have been liable if death had not insued shall be 

liable . . . [Alnd in every such action the jury 

may give such damages as they may think 

proportioned to the injury resulting from such 

death to the parties respectively for whom and for 

whose benefit such action shall be brought . . ." 

Fatal Accidents Act, 1846, 9 & 10 Vict. c. 93. 

Lord Campbell's Act was Parliament's attempt to 

ameliorate the harshness of a decision by Lord Ellenborough 

who, in Baker v. Bolton (KB 1808), 170 Eng.Rep. 1033, held 

that at common law there could be no recovery for the 

wrongful death of a person. 
Lord Campbell's Act, like the Montana statute governing 

wrongful death damages, seemed to provide for all damages as 

were found by the jury to be just. However, the English 

courts soon imposed the limitations first defined in Blake. 

John Blake was killed when two of the defendant's trains 

collided. Liability was admitted and the case proceeded to 

trial on damages. The trial judge instructed the jury that 

the might, in addition to awarding loss of support, also 

compensate the widow for her emotional pain. The appellate 

court reversed the plaintiff's judgment, holding that the 

jury had been improperly instructed on damages. The court 

stated: "The title of this Act may be some guide to its 

meaning: and it is 'An Act for Compensating the Families of 

Persons Killed;' not for solacing their wounded feelings 

. . ." Blake, 118 Eng.Rep. 35 at p. 42. The court seemed to 

feel that a more expansive rule would be impossible for the 

jury to apply. The court said: 

"[Tlhe measure of damages is not the loss or 

suffering of the deceased, but the injury resulting 

from his death to his family. This language seems 

more appropriate to a loss of which some estimate 

may be made than to an indefinite sum independent 

of all pecuniary estimate to soothe the feelings 

"We conceive that the Legislature would not have 

thrown upon the jury such great difficulty in 

calculating and apportioning the solatium to the 

different members of the family without some rules 

for their guidance." Blake, 118 Eng.Rep. 35 at p. 

43. 

The English rule has been followed by most American 

jurisdictions. See 1 Speiser, Recovery for Wrongful Death, 

(2d Ed. 1975), 3: Prosser, The Law of Torts (4th Ed. 

Blake must be read and understood in its historical 

context. The social policies existent in 1852 England and 

which may have influenced the court were traced by the 
Supreme Court of Michigan in Wycko v. Gnodtke (1960), 361 

Mich. 331, 105 N.W.2d 118: 

" . . . The rulings reflect the philosophy of the 

times, its ideals, and its social conditions. It 

was the generation of the debtor's prisons, of some 

200 or more capital offenses, and of the public 

flogging of women. It was an era when ample work 

could be found for the agile bodies and nimble 

fingers of small children . . . 

"This, then, was the day from which our precedents 

come, a day when employment of children of tender 

years was the accepted practice and ther (sic) 

pecuniary contributions to the family both 

substantial and provable . . . 

"That this barbarous concept of the pecuniary loss 

to a parent from the death of his child should 

control our decisions today is a reproach to 

justice. We are still turning, actually, for 

guidance in decision, to 'one of the darkest 

chapters in the history of childhood. ' Yet in 

other areas of the law the legal and social 

standards of 1846 are as dead as the coachman and 

his postilions who guided the coaches of its 

society through the dark and muddy streets, past 

the gibbets where still hung the toll of the day's 

executions." (citations omitted) 105 N.W. 2d at 

pp. 120-121. 

The English court in Blake articulated the rule's 

rationale to be the certainty of loss estimation. The 

underpinnings of the rule were discussed by a Federal 

District judge in In Re Sincere Navigation Corp. (E.D.La. 

"Human experience, as well as the literature of 

psychiatry and psychology bear abundant evidence of 

the debilitating effect of grief and the resultant 

depression. It is certainly no less real, and no 

more difficult to appraise, than the 'mental and 

physical pain and suffering' attendant upon 

personal injury that is awarded those who survive, 

or the pain and suffering prior to death that is 

recoverable as part of the death action here. . ." 

(citations omitted) 329 F. Supp at p. 656. 

Montana, unlike many jurisdictions, allows recovery in a 

wrongful death action for loss of care, comfort, society and 

companionship, holding that the speculative nature of such 

awards is no objection. Burns v. Eminger (1929) , 84 Mont. 
397, 276 P. 437. In Davis v. Smith (19681, 152 Mont. 170, 

448 P.2d 133, this Court said: 

"As to the third item, loss of society, comfort, 

care and protection . . . no extensive proof was 

made except that the son was a normal child. It is 

obvious that to put a monetary value on this is 

something solely within the province of the jury." 

152 Mont. at p. 174, 448 P.2d at p.135. 

Although Montana has consistently adhered to the 

requirement that the loss of society and companionship be 

susceptible of "pecuniary loss" translation, this Court has 

refused to require a yardstick for measurement? If a jury 

can evaluate the intangible loss suffered from not having the 

decedent's care, comfort and companionship, surely that same 

jury can be trusted to ascribe damages to grief. 

The remaining argument advanced for denying expansion of 

the rule lies embedded in stare decisis. A rule whose 

ancestral origins are rooted in Charles Dickens' England does 

not square with the tort principles of our time. 

Chief Justice Haswell, dissenting in Consolidated 

Freightways Corp. v. Osier (1979) , Mont . , 605 

P.2d 1076, 36 St.Rep. 1810, stated eloquently a refutation 

for blind adherence to the English common law: 

"The source of the rule . . . is the English common 

law . . . Being a rule of the common law, it is 

purely judge-made law. Judges created the rule by 

judicial decision, and judges can change it in the 

same manner . . . This approach is now as extinct 

as the dodo. Montana's 1972 Constitution 

guarantees access to the courts to all persons and 

speedy recovery afforded for every injury of 

person, property or character. Art. 11, Sec. 16, 

1972 Mont. Const. When the reasons for the rule no 

longer exist, the rule itself fails. Section 

1-3-201, MCA. Mont. at p. , 605 P.2d at 

pp. 1082-1083, 36 St.Rep. at p. 1818. 

Justice Cardozo, in his singular style, wrote: 

"If judges have woefully misinterpreted the mores 

of their day, or if the mores of their day are no 

l~or an excellent discussion of Montana cases, see Strong 

and Jacobsen, Such Damages -- as are Just: A Proposal -- for More 

Realistic Compensation - in Wrongful Death Cases, 43 Mont. L. 

Rev. 55 (1982). 
longer those of ours, they ought not to tie, in 

helpless - submission, the hands of their successor." 

B. Cardozo, The Nature 7- of the Judicial Process 152 

(1921). 

Other jurisdictions have begun to flee the constraints 

imposed by Blake. Prior to 1970, Arizona had construed its 

Wrongful Death Act to allow for the same type of recovery 

permitted in Montana, including expanding the pecuniary loss 

rule to embrace compensation for loss of care, comfort and 

society. City of Tucson v. Wondergem (1970), 105 Ariz. 429, 

466 P.2d 383, afforded the Arizona Supreme Court an 

opportunity to shed the vestiges of English common law: 

"There can be little argument against allowing 

damages 'resulting from the death' for 'anguish, 

sorrow, stress, mental suffering, pain and shock,' 

under the facts of the instant case, where we have 

held, as in Boies v. Cole [ (1965) , 99 Ariz. 198, 

407 P.2d 9171, that damages for loss of 

companionship, comfort and guidance are 

recoverable. The loss of companionship and comfort 

certainly results in sorrow, and the failure to 

permit such recovery falls short of 'fair and just' 

standards set forth in [our statute] . . ." 466 

P.2d at p. 387. 

Petitioners' brief relies upon the concurring opinion 

filed in Bedgood v. Madalin (Tex. 1980), 600 S.W.2d 773. In 

that case Justice Spears quoted Lambert, Rheingold & Joost, 

Recent Important Tort Cases 30 N.A.C.C.A.L.J. 

"It is hard to distinguish the deep emotional 

wounding of the bereaved parent from the physical 

pain and mental suffering of the plaintiff with 

bodily injury, or the loss of enjoyment of one who 

can no longer engage in sports or favorite 

activities, or the loss of consortium by the spouse 

of an injured victim." 600 S.W.2d at p. 779. 

Petitioner also points to Stanford v. McLean Trucking 

Co. (E.D. Texas 1981), 506 F.Supp 1252, wherein a federal 

judge predicted that Texas would follow Justice Spears' 

concurrence. 

Respondent counters by arguing the majority of the Texas 

court held mental anguish, sorrow, or grief were not 
recoverable and limited recovery to pecuniary damages. 

Respondent further states on page 44 of its brief: 

" . . . The prediction by the Federal Court in 

Stanford v. McLean Trucking Co., 506 F.Supp. 1252, 

1259 that Texas would follow the concurring opinion 

in Bedgood is bizarre when the majority opinion 

denied the recovery of these damages. In fact, 

Bedgood recognized that any change on this issue 

must essentially come from legislation." 

The Texas debate has been answered in an opinion issued 

April 27, 1983, rehearing denied June 15, 1983. The Supreme 

Court of Texas has overruled all prior decisions and decreed 

that damages for mental anguish will be permitted in a 

wrongful death action instituted by a parent for the death of 

a minor child. Sanchez v. Schindler (Tex. 1983) , 651 S.W.2d 

The Texas court addressed the question of whether the 

judiciary should await legislative action. The court said: 

"The legislature has attempted to amend the Texas 

Wrongful Death Act to allow damages for loss of 

society and mental anguish; however, none of the 

bills have passed. This court should not be bound 

by the prior legislative inaction in an area like 

tort law which has traditionally been developed 

primarily through the judicial process. Green, 

Protection of the Family under -- Tort Law, 10 

Hastinas L. ~'-r 237 245 (1959). In his article, 

Dean ~;een stated 'that because the difficulties in 

reducing the refinements of tort law doctrines into 

statutory form often result in legislation which is 

either underinclusive or overbroad and which is 

frequently couched in ambiguous terms which the 

court must interpret, judicial decision is the best 

way to develop tort law. Id. at 246. Inaction of 

the legislature cannot be interpreted as 

prohibiting judicial reappraisal of the judicially 

created pecuniary loss rule . . ." 651 P.2d at 252. 

An English court in the 1852 Blake case judicially 

restricted a legislatively granted remedy. The courts which 

followed that lead should, one-hundred thirty-one years 

later, be free to apply a more fitting interpretation. 

Montana allows the estate of a decedent to recover damages 

for the decedent's pain suffered prior to death. Surely a 

jury which can lawfully weigh such intangible damage can be 
trusted to fairly compensate for the grief suffered by the 

survivors. 

The same day that this opinion is being released 

another opinion from this Court is being released answering 

a certified question from the United States District Court 

in a case entitled Sharon K. Versland, Individually, as 

Personal Representative of the Estate of Bert Martin Versland, 

Deceased, and as Next Friend of Michelle Louise Jones and 

Laura Korpela, Minor Children, vs. Caron Transport. In the 

Versland case, this Court, for the first time, recognizes 

a cause of action for negligent infliction of mental and 

emotional distress. The opinion in this case, for the first 

time, allows recovery for mental distress damages in a 

wrongful death action. The two are not to be confused. A 

negligent infliction action, such as the one recognized in 

Versland, supra, compensates for mental distress from having 

witnessed an accident. The mental distress for which 

recovery can be sought under the rationale of Dawson, is 

limited to mental anguish, sorrow or grief resulting from 

the death. The two actions are distinct and separate. If 

the two actions are joined in one case then damages for the 

negligent infliction of mental and emotional distress must 

be limited to those damages caused by the witnessing of the 

accident. Damages awarded for mental distress as the result 

of wrongful death must be limited to the damages which are 

caused by the loss of the decedent's life. 

We hold that damages for the sorrow, mental distress or 

grief of the parents of a deceased minor are recoverable in a 

wrongful death action brought pursuant to section 27-1-512, 

MCA. Any previous Montana decisions, to the extent they 

conflict with this holding, are 

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

Justici Harrison deems himself disqualified and did not 

participate. 
Mr. Justice Fred J. Weber respectfully dissents as follows: 

In its opinion the majority concludes by overruling any 

previous Montana decisions which are in conflict, without 

analyzing the same. I do not agree with that procedure. The 

majority is making a significant change in the case law of 

this state and should specify the decisions being modified or 

overruled. 

Sanchez v. Schindler (Tex. 1983), 651 S.W.2d 249 is the 

Texas case cited as authority in the majority opinion. The 

Texas Supreme Court listed in a footnote the cases it 

overruled. Sanchez, 651 S.W.2d 249, 251 n.2. 

historical perspective, the majority opinion refers 

to the 1852 Blake decision and other 19th century cases from 

England. No reference is made to California, the state from 

which Montana adopted its wrongful death statute. In 

addition to the English cases, reference is made to case law 

from Michigan, Louisiana, Arizona and Texas. I believe the 

cases from Michigan, Louisiana and Arizona are clearly 

distinguishable, but will not discuss them in detail. In 

VJycko v. Gnotke (1960), 361 Mich. 331, 105 N.W.2d 118, 122, 

the Michigan Supreme Court held that the pecuniary value of a 

child's companionship was recoverable. In 1968, this Court 

reached the same conclusion, modified the strict pecuniary 

loss rule which had originated from Lord Campbell's Act, and 

allowed recovery for loss of a child's society, comfort, care 

and protection. See Davis v. Smith (1968), 152 Mont. 170, 

174, 448 P.2d 133, 135. I found no Michigan authority 

allowing recovery for grief and sorrow of a survivor. The 

Louisiana and Arizona case law appear inapposite since the 

Louisiana code specifically allows recovery for "grief, 

mental anguish, and distress" and the Arizona Constitution 

specifically prohibits any limitation on recovery in wrongful 
death cases. See La. Code Civ. Proc. Ann., Forms 321 & 325; 

Ariz. Const. art. 2, 531. 

The Texas case of Sanchez is discussed at length by the 

majority. One of the problems of using that case as 

authority is best stated by Chief Justice Pope, who noted in 

his dissent in Sanchez that the majority failed to: 

". . .cite a single case in which a court has 

authorized damages for mental anguish by overruling 

a longstanding statutory construction that has been 

ratified by legislative reenactment . . .. " 651 

S.W.2d at 257. 

The Montana Legislature has met a number of times since the 

1877 enactment of what today is section 27-1-323, MCA. The 

Legislature has not seen fit to modify this Court's 

interpretation of that statute by amendment or otherwise. In 

Sanchez, Chief Justice Pope noted that aside from the Supreme 

Court of Texas, only eleven states have permitted recovery 

for mental anguish of survivors in wrongful death cases. Ten 

of those eleven states have allowed recovery by legislative 

action. See Sanchez, 651 S.W.2d 249, 257 n.6. This is a 

strong argument for leaving to the Montana Legislature the 

decision which the majority is making here. 

The trend to allow recovery for grief, sorrow and mental 

distress in wrongful death cases appears to be legislative, 

rather than judicial. I note that in the Pacific Reporter 

region, nine states including Montana have statutes allowing 

such damages as are just. Alaska Stat. S09.55.580 (fair and 

just) ; Cal.Civ.Proc. Code S377 (a) (just) ; Hawaii Rev. Stat. 

5663-3 (fair and just); Idaho Code 55-311 (just); section 

27-1-323, MCA (just) ; N.M. Stat. Ann. S41-2-3 (fair and 

just); Utah Code Ann. S78-11-7 (just) ; Wash. Rev. Code 

54.20.020 (just). washington has, by statutory amendment, 

allowed recovery for injury to or destruction of the 

parent-child relationship. Wash. Rev. Code 54.24.010. This 
statute has been judicially interpreted to include recovery 

for grief. Kansas, Nevada and Oklahoma statutory law 

specifically permit such recovery. Kan. Stat. Ann 560-1904 

(mental anguish, suffering or berievement) ; Nev. Rev. Stat. 

541-090 (grief or sorrow); Okla. Stat. Ann. title 12 51053 

(grief). California, from which Montana adopted its wrongful 

death statute, has not amended its statute and has refused to 

allow recovery for grief and sorrow by judicial decision. 

Krouse v. Gra.ham (1977), 19 Cal.3d 59, 73, 562 P.2d 1022, 

1028, 137 Cal.Rptr. 863, 869. This suggests the wisdom of 

allowing the Legislature to determine if public policy has 

changed and whether recovery for mental distress, grief and 

sorrow requires abandonment in Montana of longstanding 

statutory construction that is consistent with that of other 

jurisdictions with similar legislation. 

The majority opinion does not state if it is modifying 

or abandoning the pecuniary loss rule in Montana, as was done 

in Sanchez by the Texas Court. If the rule has not been 

abandoned, will substantial evidence of the pecuniary value 

of the loss of companionship and society still be required in 

Montana? Will a different standard be applied to measure 

damages recoverable for loss of companionship and damages 

recoverable for grief and sorrow? 

I am unable to distinguish between mental or emotional 

distress recoverable in a wrongful death case (Dawson) and 

mental or emotional distress recoverable in a negligent 

infliction of emotional distress case (Versland) . Our 

Versland decision is based upon the California case of Dillon 

v. Legg (1968), 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72. 

In Dillon, the California Supreme Court allowed recovery for 

emotional distress suffered by a mother who witnessed her 

daughter being struck and killed by a motorist. That case is 
factually comparable to Versland, where the wife watched the 

collision in which her husband was killed. Dillon and 

subsequent California cases have allowed recovery by 

bystanders for emotional distress suffered as a result of 

witnessing or hearing the accident with damages including 

mental and emotional distress suffered after the victim's 

death. Note that California does not, however, allow 

recovery for grief, sorrow or mental distress in a case like 

Dillon. 

In seeking to analyze Versland in relation to Dawson, 

the majority points out that if the action for mental 

distress from having witnessed the accident is combined with 

a wrongful death action for mental anguish, sorrow and grief, 

then the recovery under Versland is limited to the damages 

caused by witnessing the accident but does not include the 

mental distress resulting from the death. That concept 

suggests that there is a line between the emotional distress 

suffered from witnessing an accident that results in the 

instantaneous d.eath of a loved one, and the emotional 

distress suffered from sorrow and grief that follows the 

death. I do not understand that distinction and would be