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Wentz v. Montana Power Co.11/26/1996
defendant to select venue from among proper counties. Moreover, since the survivorship claim requires a change of venue, § 25-2-116, MCA, allows venue to be changed to Rosebud County for the wrongful death claim as well. We disagree.
Section 25-2-116, MCA, was enacted in 1985. 1985 Mont. Laws 432. The Evidence Commission's recommendation for the adoption of this section of the Montana Code states that it is a codification of this Court's holdings involving venue changes in multiple claim cases. According to the Evidence Commission,
The Court feels the rule is necessary to prevent a plaintiff from controlling venue by adding spurious claims that have little or no validity, but are triable in the forum the plaintiff chooses rather than at the normal situs which would be the defendant's residence or another location more favorable to the defendant.
Without determining the sorts of cases to which § 25-2-116, MCA, might apply, we conclude that since § 27-1-501(2), MCA, specifically mandates that wrongful death and survivorship actions be combined in one legal action, there is little likelihood that one such claim or the other would be added spuriously by the plaintiff simply to defeat a venue favorable to the defendant. The evil which § 25-2-116, MCA, seeks to address simply is not present in these sorts of cases.
Furthermore, our decision in Gabriel addressed and rejected essentially this same argument. In that case we agreed that Gabriel could have sued the school district for wrongful death and survivorship in either Lincoln County or Flathead County, as both were proper places for trial. Gabriel, 870 P.2d at 1352.
However, also recognizing that under § 27-1-501(2), MCA, wrongful death and survivorship actions must be combined in one legal action, we rejected the same argument that the Clinic and Lands present here:
Nor does the School District's argument that venue for the survivorship claim is in Lincoln County — where the alleged tortious conduct was committed and the claim arose — advance its cause. It is well-established that venue may be appropriate in more than one place and that, in such an event, filing in a proper venue precludes a successful change of venue motion. Petersen, 742 P.2d at 484.
Gabriel, 870 P.2d at 1353.
Given that the nature of the evil sought to be addressed by § 25-2-116, MCA, is not present here; given that § 27-1-501(2), MCA, mandates that the plaintiff file a wrongful death and survivorship action in one combined legal action; and given our decision in Gabriel, that a proper venue for such a combined action can be determined on the basis of either the survivorship action or the wrongful death action if a proper venue for each cause of action is different, we conclude that the trial court did not err in refusing to apply § 25-2-116, MCA, in the instant case.
Venue for Jean's wrongful death action is properly in Yellowstone County because that is where Gerald died and where the cause of action, thus, arose. That her wrongful death action combined with the survivorship action could have also been brought in Rosebud County because the survivorship action arose there does not render Yellowstone County an improper place for trial for both.
If . . . more than one county [is designated] 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).
Section 25-2-115, MCA.
We hold that the District Court properly den
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