                               No. 85-350
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1986



LINDA J. MILLER,
                Plaintiff and Appellant,


FALLON COUNTY, CECIL P. MILLER,
DAVIS TRANSPORT, INC., and PREFAB
TRANSIT CO.,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Sixteenth Judicial District,
                In and for the County of Fallon,
                The Honorable A. B. Martin, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                Lucas & Monaghan; A. Lance Tonn argued, Miles City,
                Montana
         For Respondent:
                Anderson, Edwards & Molloy; Donald W. Molloy argued
                for Miller, Billings, Montana
                Anderson, Brown Law Firm; Steven J. Harman argued for
                Davis Transport, Billings, Montana
                Moulton Law Firm; Sidney R. Thomas argued for Prefab
                Transit, Billings, Montana
                Denzil R. Young, Baker, Montana
                Calvin J. Stacey, Billings, Montana
         For Amicus Curiae:
                Rossbach & Whiston for Rosina Woodhouse, Missoula,
                Montana
                Sandall, Cavan, Smith, Howard & Grubbs; W. Corbin
                Howard for Audrey D. Noone, Billings, Montana



                                  Submitted: March 14, 1986
                                    Decided: June 26, 1986

Filed:    JUfl 2 6 5986
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.

       Linda      J.    Miller        appeals   judgment of         the    Sixteenth
Judicial District Court, County of Fallon, which granted
summary judgment to defendants, Cecil P. Miller                            (Miller),
Davis    Transport,         Inc.       (Davis),      and   PreFab    Transit     Co.
(PreFab)   .   We reverse.
       Linda Miller         (appellant) was injured in a one vehicle
truck accident.            Her husband, Cecil Miller, an independent
truck driver, was the driver of the truck.                                Miller had
entered into a contract for services with PreFab on August 3,
1982.    As part of that contract, Miller delivered a load of
mobile     home        frames    from    Elkhart,      Indiana, to         Belgrade,
Montana.       The delivery was made November 2, 1982.
       Appellant accompanied her husband on the trip.                           They
stayed in Belgrade, Montana, the night of November 2.                            The
next    day, Miller,            on    behalf    of    PreFab, entered        into a
contract with Davis whereby Miller agreed to haul a load of
lumber from Townsend, Montana, to Minnesota for Davis. The
accident occurred November 3, 1-982, while the Millers were
traveling to Minnesota.                Appellant was thrown from the truck
and is now a paraplegic.
       She filed an action March                     22, 1984, against Fallon
County, alleging negligent design of a roadway;                              Miller,
alleging negligent, careless and unlawful operation of a
vehicle; Davis, alleging vicarious liability for Miller's
negligence; and           PreFab, alleging vicarious                liability    for
Miller's negligence.                 The vicarious liability actions are
premised on allegations that Miller was the employee of Davis
and/or PreFab at the time of the accident.
       Miller, Davis            and    PreFab filed motions           for summary
judgment on the basis of interspousal tort immunity.                          PreFab
additionally sought summary judgment on the basis of the
following pre-injury release form signed by appellant on
September 12, 1981:
     Application to travel with my husband.


     Furthermore, in the event of an accident or other
     manner wherein I may lose my life, be injured, or
     in any way contribute to the injury or loss of life
     to another, I hereby waive any rights whatsoever
     against Pre-Fab Transit Co. for what otherwise
     might be its liability and agree that Pre-Fab
     Transit Co., its agents, employees and contractors
     are to be held harmless in all respects by virtue
     of my being a passenger in said vehicle.
     The motions were briefed and argued.           Thereafter, the
District Court granted the motions for summary judgment on
the basis of interspousal tort immunity.             The pre-injury
release was also held to support PreFab's motion.              Following
Rule 54(b), M.R.Civ.P.,    certification, a notice of appeal was
timely filed.   The following issues are raised:
     1.   Whether   the   District Court       committed       reversible
error in granting summary judgment in favor of Miller on the
basis of the defense of interspousal tort immunity?
     2.   Whether   the   District Court       committed       reversible
error in granting summary judgment in favor of Davis and
PreFab on the basis of its finding that the defense of
interspousal    tort   immunity   is    available   to     a    spouse's
employer?
     3.   Whether   the   District     Court   committed       reversible
error by granting summary judgment to PreFab on the basis of
a waiver given to PreFab by appellant.

          - DOCTRINE - INTERSPOUSAL TORT
          THE        OF                           IMMUNITY
     The doctrine of interspousal tort immunity derives from
the common law.     When Montana became a state, it adopted the
common law of England as "the rule of decision in all the
courts of this state."      Section 1-1-109, MCA.        The doctrine
of interspousal tort immunity is a creature of court decision
and subject to change by the courts.             Fernandez v. Romo
(Ariz. 1982), 646 P.2d 878, 880.       Brooks v. Robinson (1nd.
1972) , 284 N.E. 2d 794, 797.
     This   Court   has   previously   refused    to   abolish   the
doctrine of interspousal tort immunity.           Conley v. Conley
(1932), 92 Mont. 425, 15 P.2d 922; Kelly v. ~illiams (1933),
94 Mont. 19, 21 P.2d 58; State ex rel. Angvall v. District
Court (1968), 151 Mont. 483, 444 P.2d 370; and State Farm
Mutual Automobile Ins. Co. v. Leary (1975), 168 Mont. 482,
544 P.2d 444.    However, judicial modification of the common
law is sometimes required to prevent great injustice or to
insure that the common law is consonant with the changing
needs of society.      Digby v. Digby (R.I. 1978), 388 A.2d 1.
In fact, "[tlhe strength and genius of the common law lies in
its ability to adapt to the changing needs of the society it
governs."   Brooks v. Robinson, 284 N.E.2d at 797.
     The doctrine of stare decisis is not an impenetrable bar
to conforming common law to the needs of a dynamic and
evolving culture:
     This Court recognizes that courts may have
     previously fashioned a rule of immunity from wrong-
     doing, having adopted a posture at an earlier date
     in response to what appeared to be desirable then
     as a matter of policy; yet when it later appears to
     be unsound within a given context, especially when
     the reasons upon which the immunity is based no
     longer exist, it remains within the domain of the
     judiciary to reject the applicability of such a
     rule.
Luna v. Clayton (Tenn. 1983), 655 S.W.2d    893, 897.
     The historical reasons for retention of immunity are:
1) unity--the common law concept that husband and wife are
one person; 2) family harmony; and 3) the possibility of
fraud and collusion.      These reasons no longer dictate such a
harsh and absolute result.          See Tobias, Interspousal Tort
Immunity in Montana, 47 Mont.L.Rev.         23 (1986).
     The concept of unity originated at a time when a woman
relinquished her rights as an individual when she married.
     The "supposed unity" of husband and wife, which
     serves as the traditional basis of interspousal
     disability, is not a reference to the common nature
     or loving oneness achieved in a marriage of two
     free individuals. Rather, this traditional premise
     had reference to a situation, coming on from
     antiquity, in which a woman's marriage for most
     purposes rendered her a chattel of her husband.
Freehe v.       Freehe    (Wash. 1972), 500 P.2d    771, 773.       The
concept of unity          is outmoded and has been       significantly
eroded by both statutory and case law.
     Family harmony will not be destroyed by the filing of a
lawsuit.        If a family is sound, it will most likely survive
the legal action.         A weak family bond cannot be strengthened
by our judicial system.
     [Ilt is difficult to perceive how any law barring
     access to the courts for personal injuries will
     promote harmony. If this were a valid sociological
     consideration, the Legislature could orchestrate
     even greater harmony by abolishing the statute
     giving the right to divorce.
Coffindaffer v. Coffindaffer (W.Va. 1978), 244 S.E.2d              338,


     The destruction of family harmony is even less of a
concern because of insurance.           A   spouse is normally not
seeking redress against the other spouse, but rather spouse's
insurance carrier.         See Fernandez, 646 P.2d at 881-882.       In
Transamerica Insurance Co. v. Royle (Mont. 1983), 656 ~ . 2 d
820, 40 St.Rep. 12, we recognized the effect of insurance on
suits against parents by their minor children.                 The same
rationale       applies    here.    "The    existence    of   liability
insurance prevents family discord and depletion of family
assets     in   automobile    negligence    cases   ...       (citations
omitted)."      Royle, 656 P.2d at 823, 40 St.Rep. at 16.
     Our decision in Royle, 656 P.2d at 823-824, 40 St.Rep at
16, is also instructive concerning the problems of fraud and
collusion.     The possibility of fraud and collusion exists
throughout all litigation.          One of the many functions of a
judge or     jury    is   to   determine   the   facts of the case,
including     the     potentially     collusive      aspect     of    the
parent-child    or    interspousal     relationship.          Thus,   the
possibility of fraud or collusion is not sufficient reason to
warrant continued reliance on interspousal tort immunity.
The defense is abolished in Montana.             Previous decisions to
the contrary, cited above, are overruled.
     The    abolition of the doctrine of            interspousal tort
immunity renders unnecessary consideration of whether the
doctrine is available to the allegedly-negligent spouse's
employer.
               THE EFFECTS - - PRE-RELEASE FORM
                           OF THE
     More    than    a yea-r prior    to    the accident, appellant
requested and received permission from PreFab to ride with
her husband on interstate trips.           In return, PreFab insisted
that she sign a document entitled "Application to Travel with
My Husband" which states in pertinent part:
    Furthermore in the event of an accident or other
    manner wherein I may lose my life, be injured, or
    in any way contribute to the injury or loss of life
    to another, I hereby waive any rights whatsoever
    aqainst     re-Fab Transit - - - otherwise
                               Co. for what
    might - - liability - agree that Pre-Fab
           be its              and
    Transit - - agents, employees and contractors
            Co., its
    - &g be held harmlessin said vehicle. (Emphasis
    are
    of % being - passenger - -
                  a
                              - - respects
                              in all             virtue
    -
    supplied. )
     The trial judge held that this waiver absolves PreFab
from any liability with respect to appellant.                 On appeal,
appellant contends the waiver is unenforceable because it is
against public policy.
       The     waiver   constitutes    a   private        contract   between
private individuals.        Generally, private parties are allowed
to contract away liability for negligent acts if the interest
of the public is not involved and the contracting parties
stand     on   equal    footing.      Checkley       v.   Illinois Central
Railroad Co. (Ill. 1913), 100 N.E.          942; Haynes v. County of
Missoula (1973), 163 Mont. 270, 279-280, 517 P.2d 370, 376-
See also Speiser, Krause and Gans, The American Law of Torts,


       A different result has obtained where a facility or
       service is offered as a matter of convenience--
       rather than one of necessity. In such instances,
       if the user assumes a risk of loss, there appears
       to be no basis for holding the exculpatory
       provision invalid on the ground that the parties
       were in an unequal bargaining position inasmuch as
       the user is under no compulsion to accept the offer
       of service or its terms.
       However, the fact that the waiver is a private contract
is not determinative in this case.                   We must also decide
whether the waiver is in violation of            §   28-2-702, MCA, which
states:
       Contracts which violate policy of the law -
       exemption from responsibility. A11 contracts which
       have for their object, directly or indirectly, to
       exempt anyone from responsibility for his own
       fraud, for willful injury to the person or property
       of another, or for violation of law, whether
       willful or negligent, are against the policy of the
       law.
       This Court has never before had occasion to interpret
the statute.        It was adopted verbatim from California in


       Montana follows the rule of statutory construction
       that where a statute is adopted from a sister
       state, it is ordinarily presumed         that the
       legislature borrows the construction placed upon it
       by the highest court of the state from which it is
       borrowed, although such construction is not binding
       upon this Court. (Citations omitted.)
Lawrence v. Harvey (1980), 186 Mont. 314, 321, 607 P.2d 551,
556.    We therefore find the interpretation of the statute by
the   California       Supreme    Court    in   Tunkl    v.     Regents    of
University    of    California     (Cal.    1963),    383 P.2d     441, 32
Cal.Rptr.    33, to      be   persuasive.        Consistent with          that
decision, we hold that the words "his own" qualify the term
"fraud", as well as the terms "willful injury to the person
or property       of   another"    and    "violation of       law, whether
willful or negligent".
      Next we must determine whether "his own" includes the
employer as well as the employee.                In Tunkl, supra, the
California court held that its equivalent statute applies
equally to a "corporation's 'own1 liability and vicarious
liability resulting from negligence of agents."                 383 P.2d at
448, 32 Cal.Rptr. at 40.          Likewise, we hold that our statute
applies to a corporation's vicarious liability.
      To summarize, S 28-2-702, MCA, is interpreted to mean
that no person or corporation may contract to exempt himself
or itself from responsibility for his, its or its employee's:
(1) fraud; (2) willful injury to the property or person of
another; (3) negligent or willful violation of law.
      But, what        is meant by       the term     "violation of law,
whether willful or negligent?"            The California Supreme Court
has not resolved this question.             However, the legal meaning
of the terms contained in the phrase is undisputed.                       Law
consists     of    constitutions,    Wickham     v.     Grand    River    Dam
Authority (Okl. 1941), 118 P.2d 640, 643; statutes and case
law, Erie Railroad Co. v. Tompkins (1938), 304 U.S.                 64, 78,
58 S.Ct.    817, 822, 82 L.Ed. 1188, 1194; as well as common
law, Fenn v. Holme (1859), 62 U.S.              481, 486, 21 How. 481,
486, 16 L.Ed.       198, 200.      Thus, pursuant to the clear and
unambiguous language of S          28-2-702, MCA, an entity cannot
contractually exculpate itself from liability for willful or
negligent violations of legal duties, whether they be rooted
in statutes or case law.         We therefore determine the statute
has application in this setting.
       The dissent contends that S 28-2-702, MCA, invalidates
only those waivers which affect the public.             This contention
is contrary to the specific words of the statute.                         The
statute itself states that any contract which exempts anyone
from responsibility for fraud, willful injury or the willful
or negligent violation of law, is against the policy of the
law.     Nothing     in the statute limits its application to
contracts which involve the public interest.                 Thus, even a
waiver which constitutes a private contract between private
individuals is invalid, and in violation of public policy, if
it seeks to exempt one from liability for those actions
specified in the statute.
       Contrary     to   PreFab's   allegations,   Congress         has   not
preempted    this    area   of    law   by   enacting   the    Interstate
Commerce     Act.        The     relevant    statute    is     49    U.S.C.
S 10722 (d) (2) (1982), which states in pertinent part:
       A common carrier providing transportation subject
       to the jurisdiction of the Commission            ...
                                                       may
       provide transportation without charge for officers
       and employees (and their families) of that carrier,
       another carrier (by exchange of passes or tickets),
       or a telegraph, telephone, or cable company.
This section allows PreFab to provide free transportation to
certain specified individuals, including appellant.                  It does
not regulate the liability which potentially accompanies the
provision.        Therefore, Montana is free to legislate with
respect to the liability incurred.              Eisenman Seed Co. v.
Chicago, Milwaukee, St.Paul and Pacific Railroad (1973), 161
Mont. 197, 203, 505 P.2d 81, 84.
       Finally, again contrary to PreFab's allegation, Illinois
law should not control.             We recognize that the contract
between PreFab and Miller originated in Illinois.                   However,
   S 28-2-702, MCA, delineates the types of contracts Montana
   will refuse to recognize regardless of their origin.
        We remand this cause to the trial court.     If liability
   is found based upon a willful or negligent violation of law,
   the waiver   as   it pertains   to   PreFab, Davis and Miller
   violates S 28-2-702, MCA, and may not be relied on by any of
   the three defendants.
        Reversed and remanded.




We Concur:
                d




         Justices
        Mr. Justice Fred J. Weber dissents as follows:


        I concur with the majority opinion and its abolition of
the doctrine of interspousal tort immunity.          I dissent from
its conclusion with regard to the pre-release form.
        I disagree with the majority conclusion that a negligent
violation of law by PreFab, Davis or Miller constitutes a
violation of 5 28-2-702, MCA, so that the waiver may not be
relied on.
        The majority opinion points out that this Court has
never had occasion to interpret 5 28-2-702, MCA, and further
points out that the statute was adopted verbatim from Cali-
fornia in 1895.      The majority then concludes that the inter-
pretation of the statute by the California Supreme Court in
Tunkl is persuasive.           Unfortunately the rationale of the
majority opinion actually is strikingly different from the
rationale in Tunkl.           The majority concludes that under 5
28-2-702,    MCA,    an   entity   cannot   contractually exculpate
itself     from   liability    for negligent violations of       legal
duties whether they are rooted in statutes or case law.
Tunkl approached the same code section with an entirely
different rationale.
        Tunkl emphasized that the code section had been inter-
preted in various ways by California cases, some strictly,
some very liberally so that the authority for Tunkl under
California cases was limited.         Tunkl did emphasize that all
of   the     California    cases    consistently   held   that    the
exculpatory provision of the code section would stand only if
the public interest was involved.           Tunkl then set forth a
number of factors to be considered in determining whether or
not the public interest was effected by the release agree-
ment.     Included are such factors as whether it is a business
which is suitable for public regulation; whether a party is
performing a service of great importance to the public which
is practically necessary to the public; whether a party is
willing to perform this for any member of the public; whether
there is an essential nature of services being performed and
a decisive advantage in bargaining strength; whether there is
superior bargaining power and a standardized adhesion con-
tract; and whether a party is placed under the control of the
party to be exculpated.      Clearly the present case does not
set forth facts justifying the application of the public
interest rule under Tunkl.     In other words, if the rationale
of Tunkl were applied in the present case, the holding would
be contrary to the majority opinion here.
     In Tunkl the California court distinguished private
voluntary transactions from public interest cases and stated:
     While obviously no public policy opposes private,
     voluntary transactions in which one party, for a
     consideration, agrees to shoulder a risk which the
     law would otherwise have placed upon the other
     party, the above circumstances pose a different
     situation.
Tunkl, 383 P.2d at 446.     This Court applied the rationale of
Tunkl in Haynes v. County of Missoula (1973), 163 Mont. 270,
517 P.2d   370.   Even though this Court was interpreting
5 28-2-702, MCA, it followed the public interest rationale of
Tunkl and quoted extensively from Tunkl.      In addition, this
Court in Haynes referred to the provision in Restatement,
Contracts, 5 575 making an exemption from liability illegal
if a party is charged with the duty of public service, and
the bargain relates to negligence in the performance of any
part of its duty to the public, for which it has received or
been promised compensation.    Without going into Haynes in any
more detail, it is clear that this Court adopted the public
interest   rationale   of    Tunkl.     I   therefore   conclude
that neither Tunkl nor Haynes is authority for the position
taken in the present majority opinion.
     I dissent from the primary conclusion of the majority
opinion that an entity cannot contractually exculpate itself
from liability for either willful or negligent violations of
legal duties whether they are rooted in statutes or in case
law, under the provision of 5 28-2-702, MCA.       As I look at
this statute which was enacted by our Montana Legislature in
1895, I note that it addresses contracts which are against
the policy of the law of this state.     Section 28-2-702, MCA,
states that all of the following contracts are against the
policy of Montana:   contracts which exempt anyone from re-
sponsibility for fraud, willful injury to person or property,
or violation of law, whether willful or negligent.       It is
clear that in order to discourage anyone exempting himself
for his own fraud, such a provision is appropriate.       In a
similar manner, it is appropriate to eliminate an exemption
for willful injury to person or property.      This leaves the
last portion which is the violation of law, whether willful
or negligent.   Again there is a clear policy apparent in a
prohibition which applies to willful violation of law.     That
element is not present in this case.      This leaves only the
question of the negligent violation of law.    I conclude that
negligent torts were not contemplated by this section.
     I invite the attention of our Montana Legislature to the
majority opinion in order that it may determine if it ap-
proves of the interpretation of 5 28-2-702, MCA.
    Mr.   Justice L.   C.   Gulbrandson joins in the foregoing
dissent of Mr. Justice Fred. J. Weber.




                                Justicej
