Haug v. Burlington Northern R. Co.

• Decision Date: 07 March 1989
• Docket Number: 88-470,Nos. 88-438,s. 88-438
• Citation: 236 Mont. 368,770 P.2d 517
• Parties: David HAUG, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant. Herbert LAY, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 517

770 P.2d 517

236 Mont. 368

David HAUG, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant.

Herbert LAY, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant.

Nos. 88-438, 88-470.

Supreme Court of Montana.

Submitted on Briefs Dec. 9, 1988.

Decided March 7, 1989.

J. Michael Young, Jardine, Stephenson, Blewett & Blewett, Great Falls, Herbert L. Pierce, III, Crowley, Haughey, Hanson, Toole and Dietrich, Billings, for Burlington Northern R. Co.

Alexander Blewett, III, Kurt M. Jackson, Hoyt & Blewett, Great Falls, for David Haug and Herbert Lay.

John W. Larson, Missoula, for amicus curiae.

WEBER, Justice.

The two cases of Haug v. Burlington Northern and Lay v. Burlington Northern have been consolidated for our consideration since the identical issues are raised in each case. In both cases, Burlington Northern appeals the decision of the District Court for the Eighth Judicial District, Cascade County, denying its motion for a change of venue. We affirm the District Court's denial of that motion.

We rephrase the issues presented as follows:

1. What is the proper county in which to bring a tort action against a nonresident defendant, and does that rule apply in FELA actions?

2. Is the court empowered to change the place of trial of FELA actions based on the doctrine of forum non conveniens or the Montana venue statutes?

The plaintiffs brought separate actions against Burlington Northern (BN) to recover damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (1982). Mr. Haug's suit is based on an injury which occurred in the BN shop in Park County, Montana. Mr. Lay's suit is based on an injury which occurred in the course of his employment with BN in Lewis and Clark County, Montana.

Both defendants brought claims in state court in Cascade County, which has no connection to either suit. BN filed motions for a change of venue, contending that in each case, the proper county was the county in which the tort occurred. Since the plaintiffs did not choose those counties, BN argued that it was entitled to a change of venue in both cases. The District Court denied BN's motions and BN appeals.

Some changes were enacted in our venue statutes by the 1985 Session Laws. In those enactments, the legislative history indicates that the legislature was not attempting to change the past venue practices in Montana. The significant sections for the issues in the present cases are set forth as follows:

25-2-111. Scope of part. The proper place of trial (venue) of a civil action is in the county or counties designated in this part.

25-2-112. Designation of proper place of trial not jurisdictional. The designation of a county in this part as a proper place of trial is not jurisdictional and does not prohibit the trial of any cause in any court of this state having jurisdiction.

25-2-113. Power of court to change place of trial. The designation in this part of a proper place of trial does not affect the power of a court to change the place of a trial for the reasons stated in 25-2-201(2) or (3), or pursuant to an agreement of the parties as provided in 25-2-202.

25-2-114. Right of defendant to move for change of place of trial. If an action is brought in a county not designated as the proper place of trial, a defendant may move for a change of place of trial to a designated county.

25-2-115. Multiple proper counties. If this part designates more than one county as a proper place of trial for any action, an action brought in any such county is brought in a proper county and no motion may be granted to change the place of trial upon the ground that the action is not brought in a proper county under 25-2-201(1). If an action is brought in a county not designated as a proper place of trial, a defendant may move for a change of place of trial to any of the designated counties.

25-2-118. Residence of defendant. Unless otherwise specified in this part:

(1) except as provided in subsection (3), 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;

(2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint;

* * *

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.

* * *

25-2-201. When change of venue required. The court or judge must, on motion, change the place of trial in the following cases:

(1) when the county designated in the complaint is not the proper county;

(2) when there is reason to believe that an impartial trial cannot be had therein (3) when the convenience of witnesses and the ends of justice would be promoted by the change.

We do point out that §§ 25-2-111 to -115, MCA, all were enacted as a part of the 1985 statutes.

I

What is the proper county in which to bring a tort action against a nonresident defendant, and does that rule apply in FELA actions?

From the case history in Montana, we conclude that a plaintiff is entitled to bring a tort action against a nonresident defendant in either the county where the tort occurred or in any county of this State. This Court has consistently held that a foreign corporation has no county of residence for venue purposes and can be sued in any county selected by the plaintiff. Hanlon v. Great Northern Railway Co. (1928), 83 Mont. 15, 268 P. 547; Truck Insurance Exchange v. N.F.U. Property and Casualty Co. (1967), 149 Mont. 387, 427 P.2d 50; Foley v. General Motors Corp. (1972), 159 Mont. 469, 499 P.2d 774. The holdings of these cases are consistent with the provisions of § 25-2-118(2), MCA, which in substance states that any county designated by the plaintiff is the proper place of trial if no defendants reside in Montana.

If a plaintiff does not designate a proper county in the complaint, § 25-2-201, MCA, requires that the court must, on motion, change the place of trial. Since, under § 25-2-118(2), MCA, any county which the plaintiff selects is a proper county for venue purposes, a nonresident defendant is not entitled to a change of venue for the reason that the plaintiff has chosen an improper county. Morgen and Oswood v. U.S.F. & G. (1975), 167 Mont. 64, 535 P.2d 170. In Morgen, this Court reached that conclusion even where alternative venues were authorized by statute, as in contract or tort actions. Thus, even though a tort cause of action may be brought in the county where the tort occurred, the "any county" option of § 25-2-118(2), MCA, remains a proper county for venue purposes where none of the defendants reside in Montana. See Tassie v. Continental Oil Co. (D.Mont.1964), 228 F.Supp. 807. Our statutory provisions are consistent with the holdings in the above cases.

Section 25-2-115, MCA, provides that where two or more counties are designated as proper counties, the defendant is not entitled to a change of venue if the plaintiff chose one of those counties. As previously mentioned, § 25-2-118(2), MCA, allows the plaintiff to choose any county if none of the defendants reside in Montana. Section 25-2-122, MCA, provides that the proper place of trial for a tort action is the county where the tort was committed. As a result, under these code sections, in a tort action against a nonresident defendant, the plaintiff may choose either the county where the tort was committed or any county in the State of Montana, and the defendant is not entitled to a change of venue under § 25-2-115, MCA.

BN's only argument against this statutory interpretation centers on our holding in the case of McAlear v. Kasak (Mont.1987), 731 P.2d 908, 44 St.Rep. 81, which interpreted the venue statutes following their amendment in 1985. BN argues that the language preceding § 25-2-118, MCA, limits its applicability so that the plaintiffs in these cases are not entitled to choose the "any county" option of § 25-2-118(2), MCA. The language at the beginning of § 25-2-118, MCA, does state, "Unless otherwise specified in this part." In McAlear, this Court held that because venue is otherwise specified in the tort exception of § 25-2-122, MCA, the only proper county is the situs of the tort. 731 P.2d at 910.

We recognize that the holding in McAlear appears to be a logical conclusion based alone on the wording in §§ 25-2-118 and 112, MCA. However, that holding is not consistent with the previously cited decisions in Montana. As a result, as set forth in the following discussion, we conclude that it is necessary to overrule McAlear.

We recognize that the venue statutes were amended in 1985 and that the language "Unless otherwise specified in this part" was added to replace the phrase "in all other cases." However, case law has never interpreted either phrase to be limiting or determinative of whether a plaintiff has an option in choosing a proper county. A review of the case law set forth earlier in this opinion reveals a liberal interpretation of our statutes regarding a plaintiff's choice of forum between the general rule of venue (now set forth in § 25-2-118, MCA) and the exceptions to that general rule. Furthermore, it is clear from the following stated objectives presented to the legislature by the Supreme Court Commission that the intent was to codify the previous venue decisions of this Court:

The new statutes proposed in this draft have three objectives:

(1) to include in the Montana Code Annotated those rules which have been declared and are settled by the Montana Supreme Court but are not now stated in the Code;

(2) to change the language, without changing the meaning, of the sections that have caused the most litigation (primarily by substituting the designation "proper place of trial" for the ambiguous command that cases "shall," "may," or "mu...