IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

CHARLES A. NORICK and GWENDALYN E. 

NORICK, 

Plaintiffs and Appellants, 

DOVE COI!STRUCTION, A Partnership, 

Defendant and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellants: 

Hash, Jellison, O'Brien and Bartlett, Kalispell, 

Montana 

James C. Bartlett argued, Kalispell, Montana 

For Respondent: 

Garlington, Lohn and Robinson, Missoula, Montana 

Paul C. Meismer argued, Missoula, Montana 

Submitted: January 14, 1983 

> ;:; ;j'i 

Filed: :ij.& Y A ii , ,*. <J 2 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Charles and Gwendalyn Norick brought suit against Dove 

Construction, a general partnership in which Charles Norick 

and Gordon Lister were general partners, for the destruction 

of a partially-constructed home. The Flathead County District Court granted summary judgment in favor of Dove Construction. The Noricks appeal. We reverse and remand for 

further proceedings. 

In 1977 Charles Norick and Gordon Lister formed a 

partnership called Dove Construction. Their purpose was to 

build Rustic Log Homes. Norick and Lister were equal 

partners. 

The partners agreed to build log homes as personal 

residences for themselves. Norick alleged that the homes 

were to be used as showplaces for their business and that 

Dove Construction was the general contractor. 

In 1978 appellants began building their log home on 

some Kalispell property they owned as joint tenants. All of 

the money for the home came out of appellants' personal 

funds. Although a Rustic Homes design was employed, regular 

logs rather than Rustic Home logs were used to build the 

home. The building of the house was essentially supervised 

by appellant Charles Norick. At various times employees and 

subcontractors of the partnership and the other partner, 

Lister, were involved in the building of the residence. 

In the summer of 1978 appellants sought to borrow 

money to complete the house. The shell of the house had 

been completed, and the roof was decked but no shakes had 

been nailed. The wiring was installed but was not hooked up 

to a power source. Appellants approached Empire Federal 
Savings and Loan of Kalispell for a loan but were told no 

funds would be released without a general contractor, so 

Norick and Lister agreed that Dove Construction would be the 

general contractor. 

A formal agreement was signed with the lender for a 

$30,000 loan on October 19, 1979. The home was destroyed by 

fire the night of November 14, 1979. Although the exact 

cause of the fire is unknown, Norick speculated that it 

could have been caused by an overloaded extension cord or by 

some space heaters placed in the basement by the chimney 

subcontractor, Butterfield Masonry, and the District Court 

so held in granting summary judgment to the partnership. 

The subcontractor was being paid from Norick's personal 

funds. Because of the fire, the funds from the lender were 

never released. 

On February 25, 1980, Dove Construction was dissolved 

by written agreement. The construction enterprise, the 

Rustic Log Home dealership, various tools and equipment, and 

the remainder of the savings and checking account were given 

to Gordon Lister on dissolution. Lister was also to honor 

all debts and obligations incurred by the partnership. Appellant was to have various tools, equipment and materials. 

Appellant stated that the reason for the dissolution was 

that the partnership was not generating income. It also 

appears the dissolution was amicable. 

On May 14, 1981, appellants filed suit against the 

partnership for negligence in constructing the home which 

resulted in the fire. Specifically, they alleged that the 

partnership breached its duty to supervise the chimney 

subcontractor and further that the partnership, as a general 
contractor, was liable for not building a completed project. 

Appellants asked for $50,000 in damages. The partnership 

was insured against liability for its negligence by Transamerica Insurance Corporation. 

Respondent partnership, through its insurance company, 

denied any involvement in the construction and consequently 

denied that it was negligent. It asserted that appellant 

Norick's own negligence was the cause of the fire. Moreover, 

respondent partnership alleged that these issues were moot 

because appellant Norick, as general partner, cannot maintain an action at law against the partnership of which he 

was a general partner. Respondent partnership moved for 

summary judgment. 

The District Court granted the partnership's motion 

for summary judgment on the basis that the partnership was 

not involved in the construction of appellants ' home, would 

receive no benefit from the project, and that the partnership could incur no liability for the destruction of the 

home as the negligence of the appellant Norick caused the 

fire. 

We summarize the issues on appeal in this manner: 

1. May one partner in a general partnership sue the 

partnership in tort for his individual property loss? 

2. May the spouse of one partner in a general partnership sue the partnership in tort for her individual 

property loss? 

3. Are there any genuine issues of material fact 

precluding summary judgment? 

Without resolution of the underlying factual conflicts, we cannot say with assurance whether appellant 
Norick may sue the partnership in tort for his individual 

property loss. Procedurally, an action may be maintained 

against the partnership entity. A Montana statute provides: 

"Action -------- aqainst --- business association. 

When two or more persons associated in a 

business transact such business under a 

common name, whether it comprised the 

name of such persons or not, the 

associates may be sued by such common 

name . . ." Section 25-5-104, MCA. 

Substantively, there is a substantial question whether or 

not a partner has a right to sue the partnership. 

As a general rule, a partner cannot bring an action at 

law against the partnership of which he is a member. 60 

Am.Jur.2d Partnership, B 350 at 237; 68 C.J.S. Partnership, 

109 at 552. The Uniform Partnership Act, which Montana 

has enacted, leaves this question unresolved. 

However, some courts have established exceptions to 

this general principle. An example was recognized by the 

Kentucky Court of Appeals in Smith v. Hensley (Ky.Ct.App. 

1961), 354 S.W.2d 744. There, plaintiff partner was allowed 

to bring an action at law against the partnership for 

negligence which caused damage to his individually-owned 

property which was being used in the business of the partnership. There, the negligence was committed by a partnership employee and thus was imputed to the partnership from 

which the plaintiff partner was allowed recovery. See, 

Annot., 98 ALR2d 340 (1964). 

The reasons for allowing this exception are manifold. 

The court first reasoned that a partner who paid an obligation of the partnership may obtain contribution from the 

partnership. Secondly, the court considered an individual 

loss suffered by a partner as an ordinary business loss and 
therefore that partner should be given the opportunity to 

recover such loss. Thirdly, if one partner negligently 

causes damage to the property of another partner, the latter 

may recover from the former so the rule should be no different if the property is used in the partnership business. 

Finally, when a partner allows his property to be used in 

conducting partnership affairs, he should not be required to 

assume the risk of the entire loss individually. 

The Smith court dealt with the problems where a partner, in suing his partnership, in reality is suing himself 

and that the alleged negligence of the partnership is 

imputed to all partners including the plaintiff partner by 

balancing such problems against a realistic approach which 

would ordinarily allow a partner to secure contribution or 

reimbursement for a loss incurred in the ordinary course of 

business. We hold, therefore, that the action by appellant 

Norick should go forward to the point of determining whether 

the partnership was negligent in causing the fire loss and 

whether Noricks' property was being used to further the 

business of the partnership. He should not be foreclosed by 

summary judgment. 

Directing our attention to the second issue, we hold 

that the spouse of one general partner may sue the partnership in tort for her individual property loss. Here, it 

appears that Gwendalyn Norick is a co-owner of real property 

upon which the home was being built as a joint tenant with 

her husband. We reject the defense of interspousal tort 

immunity for property damage claims by one spouse against 

the other. The rationale behind our holding is well 

articulated in following passage: 
"Since the primary object of these 

statutes (married women's acts and emancipation acts) was to free the wife from 

the husband's control of her property, 

the courts have generally agreed that 

they enable her to maintain an action 

against him for any tort against her 

property interest. Thus she may recover 

from him for conversion or detention of 

chattels, for fraud, for trespass to 

land, for waste, for negligent damaqe to 

property, or in an action of ejectment or 

unlawful detainer. Likewise, since the 

statutes destroy the unity of the persons 

and place them upon an equality, it is 

held that the husband may recover from 

the wife for similar torts as to his 

property." Prosser on Torts, S 122 at 

861 (4th Ed. 1971), and cases cited 

therein. (Emphasis added.) 

Also see, 41 Am.Jur.2d Husband and Wife, SS 531 and 532; 

Annot., 109 ALR 882 (1937); cases collected in Personal 

Injury: Actions, Defenses, Damages, V. 4D, Husband and Wife 

S 5.02 (1981); Karell, Toward Abolition of Interspouse Tort 

Immunity, 36 Mont. L. Rev. 251 (1975). 

The Restatement of Torts, second edition, S 895F, has 

repudiated the defense of interspousal tort immunity by providing as follows: "(1) A husband or wife is not immune 

from tort liability to the other solely by reason of that 

relationship." The cases adopting this position are collected at Annot., 92 ALR3d 901 (1979). 

Finally, there are genuine issues of material fact 

precluding summary judgment in this case. We have already 

mentioned one, whether the partnership was liable for any 

negligence in causing the fire that destroyed the home. 

Others are whether or not Norick was negligent, whether the 

partnership was in fact the general contractor, and most 

importantly, what caused the fire. Until these issues are 

resolved factually, no determination as to the correct 

outcome of this action can be made. 
For these reasons, we vacate the award of summary 

judgment to the partnership and remand this cause to the 

District Court for further proceedings. 

Chief Justxce - - 

We concur: 
Mr. Justice Frank B. Morrison, Jr. dissenting. 

I respectfully dissent. 

There is little, if any, evidence that the log house in 

question was being constructed by the partnership. In fact, 

it appears that plaintiffs were personally constructing the 

residence and that Dove Construction only became involved in 

order to facilitate a loan. The involvement of the 

partnership occurred at a time subsequent to any alleged 

negligence. 

However, assuming arguendo that there is evidence of the 

partnership's involvement, liability still would not exist in 

favor of Charles A. Norick. 

A partnership is not an entity and the members of the 

partnership are individually liable. The New York Court of 

Appeals in Caplan vs. Caplan (1935), 268 N.Y. 445, 198 N.E. 

23, 25, 101 ALR 1223, 1225, said: 

"In the field of liability for torts it is 

especially apparent that a partnership cannot be 

regarded as an entity independent of the persons 

who compose it . . . " 

The Uniform Partnership Act, section 35-10-305, MCA, 

provides as follows: 

"Partnership liable for partners' wrongful act. 

Where, by any wrongful act or omission of any 

partner acting in the ordinary course of the 

business of the partnership or with the authority 

of his co-partners, loss or injury is caused -- to any 

person not being a partner -- in the partnership or 

any penalty is incurred, the partnership is liable 

therefore to the same extent as the partner so 

acting or omitting to act." (emphasis supplied) 

The genera.1 rule has wide acceptance. A partnership is 

not liable for an injury to a partner. A. Bromberg, Crane 

and Bromberg on Partnership (19681, 554, p. 314-315. 

Narrow exceptions to the general rule have been 

recognized in Smith v. Hensley cited in the majority opinion. 

However, the Smith case is not applicable. In the case at 
bar plaintiff Charles A. Norick seeks to recover against the 

partnership for his own negligence. No case has ever 

recognized such a right. Here the plaintiff seeks to recover 

against himself for his own negligence. The absurdity of 

such a position seems apparent. 

I would permit the case of Gwendalyn E. Norick to go 

forward. Because this is a property damage case interspousal 

immunity does not apply. However, I would abolish 

interspousal immunity in Montana and hold that one spouse may 

sue another spouse for damage resulting from negligent acts 

whether that damage is property damage or is in the nature of 

personal injury. 

I would affirm the District Court's summary judgment 

entered against plaintiff Charles A. Norick and vacate the 

summary judgment against Gwendalyn E. Norick remanding her 

case for trial in accordance with the views herein expressed. 

Mr. Justice Daniel J. Shea will file a dissent in part 

later.