No. 86-481 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

JENNIFER BROWN, a Minor Child, 

et al., 

Plaintiff and Respondent, 

-VSDARRYLE HARTWELL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry A. Wallace, Missoula, Montana 

For Respondent: 

William Boggs, Missoula, Montana 

Submitted on Briefs: Feb. 13, 1987 

Decided: March 17, 1987 

Filed: MAR I 7 887 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Darryle Hartwell appeals from an order of the District 

Court, Fourth Judicial District, Missoula County, denying his 

motion for a change of venue from the District Court in 

Missoula County to the District Court in Lake County. The 

complaint alleges that on August 1, 1981, Jennifer Brown was 

injured while she was swimming in Flathead Lake, located in 

Lake County, Montana. Darryle was operating a boat, towing 

an inner tube, and the tow rope is alleged to have hit 

Jennifer in the face, causing her injuries. Jennifer resided 

in Lake County, and Darryle was a resident of Missoula County 

at the time of the incident. 

Jennifer filed suit for her alleged injuries in Missoula 

County and served Darryle as defendant in Missoula County, 

his place of residence. In January, 1983, Darryle moved for 

a change of venue to Lake County. On August 4, 1986, the 

District Court denied the motion for change of venue, and 

this appeal ensued. 

On appeal, counsel for Jennifer contends that under 

Montana law the place of residence of the defendant is 

clearly the proper venue for such a suit, and that Darryle's 

appeal from the denial of the motion for change of venue is 

frivolous, entitling Jennifer to attorneys fees, costs and 

sanctions by way of a money award under Rule 32, Montana 

Rules of Appellate Civil Procedure. Darryle on the other 

hand contends that the law in force at the time the motion 

was made for change of venue clearly requires the tort action 

be tried in the county where the tort occurred. 

The opposite contentions of the parties arise quite 

naturally from the confusion of statutes relating to venue 
before, during and following the time this action has been 

pending in the District Court. 

Formerly, § 93-2904, R.C.M. (1947) provided in pertinent 

part : 

In all other cases the actions shall be tried in 

the county in which the defendants or any of them, 

may reside at the commencement of the action, or 

where the plaintiff resides, and the defendants, or 

any of them, may be found; . . . Actions upon 

contracts may be tried in the county in which the 

contracts were to be performed, and actions for 

torts in the county where the tort was committed; 

subject, however, to the power of the court to 

change the place of trial as provided in this code. 

In those cases decided under the foregoing statute, it 

was usually held that the proper venue for a cause of action 

for a tort was the county in which the tort was committed. 

Putro v. Manniax Electric, Inc. (1966), 147 Mont. 314, 412 

P.2d 410; Petition of Wasson (1964), 143 Mont. 323, 389 ~.2d 

406; Maio v. Greene (1943), 114 Mont. 481, 137 ~.2d 670; 

Stewart v. First National Bank and Trust Company (1933), 93 

Mont. 390, 18 P.2d 801; Dryer v. Director-General of 

Railroads (1923), 66 Mont. 298, 213 P. 210; Yore v. ~urphy 

(1891), 10 Mont. 304, 25 P. 1039; however in dictum, the 

Federal District Court had indicated that either the county 

of residence of the defendant or the county where the tort 

was committed was the proper county in which to bring a tort 

action. Tassie v. Continental Oil Company (u.S.D.C. Mont. 

1964), 228 F.Supp. 807. 

It will be noted that former S 93-2904 also refers to 

contract actions, and with respect to that kind of action, 

this Court has held that either the place where the contract 

was to be performed, or the place of residence of the 

defendant was a proper venue for a contract action. This 

Court stated that the general rule in contract cases was that 
the action was to be tried in the county of the defendant's 

residence where the plaintiff's pleadings did not clearly 

establish that the contract forming the basis for the action 

was to be performed in the county where the action was 

brought. McNussen v. Graybeal (19621, 141 Mont. 571, 380 

P.2d 575; Fraser v. Clark (1954), 128 Mont. 160, 273 P.2d 

105. 

The Revised Codes of Montana (1947), with their 

amendments, were recodified in 1978 as Montana Codes 

Annotated. The venue statute which formerly existed as S 

93-2904, R.C.M. (1947) was divided into several sections. 

With respect to tort actions, the recodified provision was as 

follows: 

25-2-102. Tort Actions. Actions for tort may be 

tried in the county where the tort was committed, 

subject, however, to the power of the court to 

change the place of trial as provided in this code. 

No reference is found in the Montana Codes Annotated for 

1978 and subsequent years until 1983 allowing venue of an 

action in the county where the defendant resides, except in 5 

25-2-108. That statute provided: 

25-2-108. Other Actions. In all other cases, the 

action shall be tried in the county in which the 

defendants or any of them may reside at the 

commencement of the action or where the plaintiff 

resides and the defendants or any of them may be 

found ; 

Thus, at the time that Darryle in this case moved for a 

change of venue, the tort statute on venue required the 

action to be brought in the county where the tort was 

committed. Section 25-2-102, supra. 

In 1985, all of the venue statutes were amended, with 

the objective of bringing the venue statutes into line with 

the court's decisions and to clearly delineate the proper 

venue for all kinds of actions. Ch. 432, Laws of Montana 
(1985) . The policy of the venue statutes as amended is that 

the proper place of trial is where the defendant resides in 

civil cases. 

Section 25-2-118, MCA, provides: 

Unless otherwise specified in this part: 

(1) Except as provided in subsection (3) [not 

applicable here], the proper place of trial for all 

civil actions is the county in which the defendants 

or any of them may reside at the commencement of 

the action . . . 

With respect to actions in tort, the venue statutes now 

provide : 

25-2-122. Torts. The proper place of trial for a 

tort action is: 

(1) The county in which the defendants, or any of 

them, reside at the commencement of the action; or 

(2) The county where the tort was committed. . . 

In this case therefore at the time that Darryle moved 

for change of venue to Lake County, there was ample statutory 

authority for him to insist that he was entitled to such 

change of venue based on S 25-2-102, MCA (1978). However at 

the time that the District Court decided the motion for 

change of venue, the venue statutes had been amended, and the 

evident policy of the legislature may now be found to require 

that in all civil actions the proper place of trial is in the 

county of the defendant's residence but that in tort actions, 

such proper county may be the county of defendant's residence 

or the place where the tort was committed. Section 25-2-122, 

MCA (1985). 

We determine in this cause that because the legislative 

policy with respect to venue is now plainly expressed, we 

affirm the decision of the District Court that Missoula 

County is the proper place of trial since it is one of two 
counties which are proper venues for a tort action under the 

latest legislative enactment. Neither party shall recover 

costs on this appeal. -\ 

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Justice 

We Concur: ..+' 

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