No. 86-481
IN THE SUPREMECOURT OF THE STATE OF MONTANA 1987

JENNIFER BROWN, aMinor Child, et al., Plaintiff and Respondent,-VSDARRYLE HARTWELL, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Fourth JudicialDistrict, In and for the County ofMissoula, TheHonorable JamesB. Wheelis, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: TerryA. Wallace,Missoula, Montana
For Respondent: William Boggs,Missoula, Montana

Submitted on Briefs: Feb. 13, 1987 Decided: 

### March 17, 1987 Filed:

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## 887Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Darryle Hartwell appeals from an order of the District Court, FourthJudicialDistrict,Missoula County,denyinghis motion for a change of venue from the District Court in Missoula County to the District Court in Lake County. The complaint alleges that onAugust 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,causingher injuries. Jennifer resided in Lake County,and Darrylewas a residentofMissoula County at the time of the incident. Jennifer filed suit for her alleged injuries inMissoula County and served Darryle as defendant in Missoula County, his place of residence. In January, 1983,Darrylemoved 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
wasmade forchange ofvenue clearly requires the tort action be tried in the countywhere the tort occurred. The opposite contentions of the parties arise quite naturally from the confusion of statutes relating to venuebefore, during and following the time this action has been pending in the DistrictCourt. 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 committedwas the proper county inwhich 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 caseswas thatthe 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 recodifiedprovisionwas 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 theplace of trial asprovided in this code. No reference is found in theMontana CodesAnnotated for 1978 and subsequent years until 1983 allowing venue of an action in the countywhere the defendant resides, except in 5 25-2-108. That statuteprovided: 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 casemoved 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 linewith 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 thispart:

(1) Except as provided in subsection (3) [not applicablehere], theproper 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 changeofvenue toLake County,therewas 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 ofvenue, the venue statuteshad been amended,and the evidentpolicy of the legislaturemay nowbe found to require that in all civil actions theproper place of trial is in the county of thedefendant's residence but that in tort actions, suchproper countymay be the county ofdefendant's residence
or the place where the tortwas 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 twocounties 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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# e,ZM+ Justice We Concur: 

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