                                    No. 85-189
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1986




JAMES RARRETT ,
                Plaintiff and. Respondent,


JOHANNES SOYLAND, and WESTERN
ENERGY COMPANY, a corporation,
                  defendant.^ and Appellants.




APPEAL FROM:    District Court of the Sixteenth Judicial District,
                In and. for the County of Fallon,
                The Honorable Alfred B. Coate, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                Crowley, Haughey, Hanson, Toole & Dietrich;
                George C. Dalthorp argued, Billings, Montana

         For Respondent:
                Huntley    &   Eakin; Ira Eakin argued, Baker, Kontana




                                       Submitted: December 6, 1985
                                        Decided: April 22, 1986

    APR 5 2 1986
Filed:




                                      Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


     Respondent, James Barrett, brought                an action in the
Fallon    County       District   Court    against    appellants     for   the
wrongful death of his daughter.              Process was never served on
Soyland.       Appellant, Western Energy Company (Western), made
two motions for summary judgment, a motion to dismiss, and a
motion for a directed verdict.             All appellant's motions were
denied.    The case was tried to a jury that awarded respondent
$100,000 on January 10, 1985.              Appellant appeals the denial
of its motions.
    We affirm.
     The       issue   on   appeal      is whether    Barrett's ex-wife's
prosecution and settlement of her action for the daughter's
wrongful death is a bar to James' prosecution of his action.
     James and Sandra Barrett were married in 1963.                   Brenda
Lee Barrett was born in 1966, the only child of the marriage.
James    and    Sandra were       divorced    in   1969, and     Sandra was
awarded custody of Brenda.                James continued to pay child
support for, and maintained contact with Brenda up until the
date of her death.
     Sandra       remarried       and    became    Sandra   Askin.         She
subsequently moved          to    Fallon    County,   Montana,     with    her
husband and Brenda.
     On April 22, 19?5, nine-year-old Brenda was killed in an
automobile accident involving               truck d-riven by Soyland, an
employee of Western.
    At the time of Brenda's death, section 93-2809, R.C.M.
(1947) was in effect.         That statute read:
     A father, or in case of his death or desertion of
     his famil-y, the mother, may maintain an action for
     the injury or death of a minor child           when . . .
        such injury or death is caused by the wrongful act
        or neglect of another.
        Two weeks after the d.ecedentlsdeath, effective May 6,
1975, the legislature amended the wrongful death statute to
read:
     Either parent may maintain an action for the injury
     or death of a minor child   .     .
                                 . when such injury or
     death is caused by the wrongful act or neglect of
     another.
     On July 14, 1975, approximately 10 weeks after the new
statute went     into effect, Sandra       filed a   wrongful death
action in the Fallon County District Court alleging that she
was the natural mother and legal custodian of the deceased.
On the morning of trial, Sandra settled her case for $35,000.
She was appointed personal representative of the decedent's
estate, and the court ratified the settlement.         Then Sandra,
acting individually, as mother, as trustee for the heirs, and
as personal representative of the estate, executed a release
approved by the court settling all claims arising out of the
injuries to and the death of the decedent.            James did not
participate in the action hy Sandra, and did not share in any
of the proceeds of the settlement.         He was not notified of
the pendency of the proceedings, or joined. as a party, but
was aware of the lawsuit prior to settlement.
     On April 12, 1978, James filed a wrongful death action
in the Fallon County District Court.            Western   filed two
motions    for summary judgment, a motion to dismiss, and a
motion for a directed verdict on the theory that Montana
permits but one cause of action for wrongful death and that
action had already been brought and settled by Sandra,          and
that the unamended statute was unconstitutional.          Western's
motions were denied, and after Western admitted liability,
the issue of damages was tried to a jury.                       The jury awarded
James $100,000.
       Appellant correctly argues that normally there car1 be
but    one    legitimate wrongful death action arising                        from a
decedent's death.             State ex rel. Carroll v. District Court
(1961), 139 Mont. 367, 364 P.2d 739.                     However, the situation
in the present case merits a different result.
       A cause of action for wrongful death accrues in the
statutory         designee    at        the    moment   of   death.      Thomas v.
Cumberland Operating Co.                 (Okla. 1977), 569 P.2d 974; Matter
of the Estate of Boyd                   (Wy. 1980), 606 P.2d 1243.            At the
moment       of    death,    section          93-2809, R.C.M.       (1947) was      in
effect.           That    statute gave James a cause of action for
Brenda's death.            This cause of action was not affected by the
legislature's subsequent enactment of section 93-2809, R.C.M.
(Supp. 1977)             because    the       legislature did       not make    that
amendment retroactive.
       There is a presumption in Montana against retroactive
application of statutes.                 Dunham v. South Side National Banlc
of Missoula         (1976), 169 Mont. 466, 548 P.2d                   1383.    For a
statute to be retroactively applied such an intent must be
expressly so declared by the legislature.                       Section 1-2-109,
MCA.     Section 93-2809, R.C.M.                 (Supp. 1977) was not declared
retroactive by the legislature.                    Therefore, James ' cause of
action for Brenda's death remained intact subject only to the
three     year      statute        of    limitations     applicable      to   torts.
Section 27-2-204, MCA.
       Although the constitutionality of the unamended statute
is     challenged, we          need        not    address    that     issue   for   a
resolution of this case.                      Western's injury stems from the
possibility         of two wrongful death actions, not                    from the
language of the unamended statute.                 Therefore, Western lacks
standing     to    challenge      the       statute's    constitutionality.
Western      itself        is    not        injured     by    the    alleged
under-inclusiveness of the unamended statute because Western
could    never    be   a   member      of   even    a   broadened   class of
potential claimants.            Because the amended statute was not
made retroactive, there existed, for the three year statute
of limitation period following its enactment, the possibility
of two causes of action for wrongful death.                  Western is not
injured by the unamended statute, but by the legislature's
decision not to make the amended statute retroactive.
      Therefore, we hold          that James' cause of action            for
Brenda's wrongful death is legitimate, and the judgment of
the District Court is affirmed.




We Concur:



        Chief Justice
  A




           Justices
        Mr. Justice Fred 3. Weber dissents as follows:
        I disagree with the majority conclusion that for three
        :

years after the enactment of the amended statute, two causes
of action existed for the wrongful death of Brenda Barrett.
        As amended after Rrend.alsdeath, S 27-1-512, MCA, pro-
vided that either parent may maintain an action for dea-th of
a minor child.         The amendment did not significantly change
the prior statute, 5 93-2809, RCM 11947), which provided that
a father or in case of his death or desertion, the mother,
may maintain an action for the death of a minor child.              The
key point is that in the statute before and after amendment,
a father or a mother may maintain an action, but there is
provision for only one action for the death of a minor child.
        This section is a companion to       §   27-1-513, MCA, which in
substance provides that when the death of an adult is caused
by the wrongful act or neglect of another, "his heirs or
personal representatives" may maintain an action for damages.
Section 27-1-513, MCA, has been construed in a number of
Montana cases.         In State ex re1 Carroll v. District Court
(1961), 139 Mont.        367, 364 P . 2 d   739, this Court concluded
that the section specifically provided but one action for a
wrongful death.        The reasoning of Carroll should he applied
here.
        Both statutes provide that certain persons "may maintain
a1 action."
 1                If there is but one cause of action under
Carroll, clearly there is only one cause of action under 5
93-2809, RCM (1947) and under S 27-1-512, MCA.             The majority
speaks of the statute giving the father a cause of action for
his daughter's death.        This suggests that the statute somehow
vests in the father a right to retain any recovery in the
action.     Both S S   27-1-512 and -513 specify the parties who

r a maintain an action invol-ving injury or death, but neither
 ny
attempts to specify the parties who are entitled to retain
damages recovered.
       The amendment to S 27-1-512, MCA, was part of a legisla-
tive act which was adopted in order to eliminate discrimina-
tion on the basis of sex.    No new rights were created on the
part of either parent.     Under the statute before as well as
after amendment, either a father or a mother could maintain
an action.     The amendment eliminated a bias allowing the
father to sue first and granting to the mother the right to
sue only in case of the father's death or desertion.          I
conclude that        27-1-512, MCA, is procedural in nature.
Because the amendment was procedural only, the action filed
by the mother after the amendment of the statute was proper.
See 1A Sutherland Statutory Construction S 22.36     (Sands ed.
1972).     It constituted the single action which could be
maintained for the death of the daughter.
      The majority concludes that because the amended statute
was not made retroactive, there existed the possibility of
two causes of action for wrongful death.      That ignores the
provision of the statute which in substance states that a
father or a mother may maintain an action for death of a
minor child and further states that such action may be main-
tained against the person causing the death.       Clearly the
statute contemplates a single action even prior to amendment.
In   addition we have the Carroll interpretation of the compan-
ion statute.    The majority also disregards other states such
as California, Oklahoma, Alaska, and Arkansas, which have
held that similar statutes permit only one action for a
wrongful death.      See Mayerhoff v. Kaiser Foundation Health
Plan (1377), 138 Cal. Rptr. 319; Mitchell v. Mitchell (Alaska
19821, 655 P.2d 748; Wilson-Harris v. Southwest Telephone Co.
(Oklahoma 1943), 141 P.2d 986; Reed v. Blevins (Ark. 1953),
2 5 8 SW.2d      564,     c e r t . denied, 347 U.S.           937    (1954).         Under t h e

r a t i o n a l e o f t h e m a j o r i t y , i t can be a r g u e d t h a t t h e r e v i s e d

s t a t u t e gives t o e i t h e r parent a cause of a c t i o n f o r a death

of a minor, i n t h e same manner t h a t James R a r r e t t was g i v e n a

cause of a c t i o n i n t h e p r e s e n t case.             I f t h a . t i s t r u e , judg-

ment e n t e r e d i n an a c t i o n b r o u g h t by e i t h e r p a r e n t would n o t

of n e c e s s i t y b a r s u i t by t h e o t h e r p a r e n t .       B y ana"logy, t h e

same argument c o u l d be made f o r o v e r r u l i n g C a r r o l l .                 A s an

example, i f a n a c t i o n were b r o u g h t u n d e r 5 27-1-513,                   MCA, by

an h e i r o f       a deceased,         and judgment were e n t e r e d f o r s u c h

p l a i n t i f f h e i r , t h e c a u s e o f a c t i o n would n o t n e c e s s a r i l y b a r

recovery        in    a   second      action      by    other      heirs      who w e r e     not

joined i n t h e f i r s t a.ction.            Presumably e a c h h e i r c o u l d a r g u e

he was g i v e n a c a u s e o f a c t i o n by t h e s t a t u t e s o t h a t more

t h a n one a c t i o n c o u l d be b r o u g h t f o r t h e d e a t h o f an a d u l t .

Such r e s u l t s w e r e n o t c o n t e m p l a t e d by t h e s t a t u t e s .

        I would       reverse t h e D i s t r i c t Court,             h o l d i n g t h e r e was

one c a u s e o f a c t i o n f o r t h e d e a t h of t h e minor c h i l d .




Mr.   Chief J u s t i c e J . A . Turnage and iqr. J u s t i c e L . C . Gulbrandson

j o i n i n t h e d i s s e n t of M r .    J u s t i c e Fred J . Weber
