KISH v MONT STATE PRISON
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No. 12110 I N THE SUPREME C U T O THE STATE O MONTANA OR F F 1972 JAMES KISH, P l a i n t i f f and A p p e l l a n t , M N A A STATE PRISON and D N L E. OTN O AD MICKELSON, e t a l . , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t , Honorable James D. Freebourn, Judge p r e s i d i n g . Counsel of Record: For Appellant : Knight, Dahood and Mackay, Anaconda, Montana. Wade J. Dahood argued, Anaconda, Montana. For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena, Montana. Larry D. Huss argued, A s s i s t a n t Attorney General, Helena, Montana. William Jensen, A s s i s t a n t Attorney General, appeared, Helena, Montana. C o r e t t e , Smith and Dean, B u t t e , Montana. R. D. C o r e t t e , Jr. argued, B u t t e , Montana. Submitted: Decided : Filed : JAN 5 1973 November 28, 1972 JAN 2 5 I973 Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court. The p l a i n t i f f f i l e d this case in Powell County d i s t r i c t court f o r severe and permanent i n j u r i e s . H alleged he had been damaged by permanent e wage loss i n the sum of $150,000, hospital and medical s p e c i a l s which a t the time of summary judgment exceeded $50,000, and general damages i n the sum of $700,000. A motion f o r summary judgment was granted i n favor of defendants and from t h i s ruling p l a i n t i f f appeals. On September 19, 1967, a f o r e s t f i r e was burning about twenty miles north of Deer Lodge, Montana, in what i s called the Gold Creek area. The United S t a t e s Forest Service took control of fighting the f i r e , and in order t o contain the blaze, several bulldozers were leased and borrowed from the local area. This equipment was necessary f o r the construction of f i r e l i n e s . The f i r e l i n e s were constructed and controlled by employees of t h e United S t a t e s Forest Service and the d r i v e r s of the bulldozers were under the d i r e c t and exclusive supervision of the f o r e s t s e r v i c e , One of these bulldozers was leased from Mickelson, who owned and operated a construction business in Deer Lodge, Montana. Mickelson supplied an operator f o r the bulldozer, one Charles Fiske; however, while constructing the f i r e l i n e s , Fiske was under the control and was paid by the United S t a t e s Forest Service. Another bull- dozer was loaned t o the f i r e f i g h t i n g operation by the Montana S t a t e Prison. This loan was a t the request of the United S t a t e s Forest Service; however, c e r t a i n prison land was adjacent t o the f i r e area and the S t a t e Prison had an i n t e r e s t in protecting t h i s grazing and timberland. In order t o operate the bulldozer, the prison provided a guard and two prisoner-operators t o run t h e equi pment . James Kish, a member of a f i r e crew from Butte, was on the f i r e l i n e several days a f t e r the bulldozers had constructed the f i r e l i n e . Alleg- edly, an uprooted t r e e was l e f t standing and was allowed t o lean against another t r e e . t o f a l l on h i m . When p l a i n t i f f Kish was i n the a r e a , a w i n d caused the t r e e Kish, 45 years of age a t the time of the accident, was paralyzed from the waist down a s a r e s u l t of the accident. Two years l a t e r Kish died. P l a i n t i f f contended the uprooted t r e e was negligently l e f t standing by defendants. This i s t h e basis f o r t h e lawsuit. Two issues a r e presented f o r review. F i r s t , was the t r i a l court c o r r e c t i n ruling t h a t Montana S t a t e Prison was imune from suit by reason of the doctrine of sovereign immunity? Second, was t h e t r i a l court c o r r e c t in ruling t h a t the loaned servant doctrine applied as t o release the defendants from 1i a b i l i t y ? The t r i a l court was c o r r e c t i n holding Montana S t a t e Prison was immune from suit by reason of the doctrine of sovereign immunity. This doctrine was i n i t i a l l y treated by t h i s Court i n Mills v . Stewart, 76 Mont. 429, 436, 247 P. 332, wherein the Court s t a t e d : " * * * B u t the s t a t e i s a public corporation, and out of considerations of public policy t h e doctrine of respondeat superior does not apply t o i t unless assumed voluntarily. In other words, the s t a t e i s not l i a b l e f o r t h e negligent a c t s of i t s agents unless through the 1egis1 a t i v e department of government i t assumes such l i a b i l i t y . (Citing authority) , " Since 1968 the Court has several times considered the issue of sovereign immunity. . In Longpre v. School D i s t r i c t No. 2, 151 Mont. 345, 347, 443 P.2d 1 , the Court s t a t e d : ' * * * And, generally speaking, a l l public agencies; i n s t i t u t i o n s or p o l i t i c a l subdivisions of the s t a t e partake of this sovereign irnmuni t y , a t l e a s t while performing governmental functions, s i n c e , while so engaged, they merely a c t f o r the benefit of the s t a t e and of the pub1 i c generally." In Three Forks v . S t a t e Highway, 156 Mont. 392, 398, 480 P.2d 826, the Court noted: " * * * B u t i n the absence of a waiver of immunity, the S t a t e may not be l i a b l e f o r t o r t s committed whi 1e engaged i n a purely governmental function. Coldwater v . S t a t e Highway Comm'n, 118 Mont. 65, 162 P.2d 722." As can be seen from this authority, this Court has recognized and applied the doctrine of sovereign immunity. The Montana l e g i s l a t u r e has a l s o acted t o bring formal recognition t o the doctrine of sovereign immunity. the l e g i s l a t u r e adopted Chapter 7, T i t l e 83, R.C.M. In 1959 1947, dealing w i t h t o r t actions against the s t a t e . Two sections i n t h i s chapter a r e important t o the question before us. Section 83-701, R.C.M. 1947, s t a t e s i n p e r t i - nent part: "The d i s t r i c t courts of the s t a t e of Montana shall have exclusive j u r i s d i c t i o n t o hear, determine, and render judgment t o the extent of the insurance coveraby t h e s t a t e of Montana on any claim against the s t a t e * *." (Emphasis supplied). * Section 83-706, R.C.M. 1947, s t a t e s : "Where coll e c t i bl e insurance coverage from any insurer i s available t o pay on behalf o f , or t o indemnify, the s t a t e of Montana, f o r any settlement, compromise o r judgment under this a c t , any cause of action shall be subject t o the terms and conditions of such policy or policies of insurance applicable; and i n such event the s t a t e of Montana shall be immune under this a c t from any claim or demand, includinq judqments, i n excess of such c o l l e c t i b l e insurance. " (Emphasis supplied) . I t is interesting t h a t when House Bill 237, Thirty-sixth Legisl a t i v e Assembly, now Chapter 7, T i t l e 83, R.C.M. emphasized portion of section 83-701, R.C.M. 1947, was introduced, the 1947, was omitted. A senate amendment added t h a t language and i t was concurred i n by the house of repres e n t a t i v e s and signed by the Governor. (For the amendment see Senate Jour- nal of the Thirty-sixth Legislative Assembly, page 452.) The Supreme Court i n Kaldahl v . S t . Highway Comm'n, 158 Mont. 219, 221, 490 P.2d 220, spoke of the purpose of Chapter 7, T i t l e 83: "As t o legal actions against the s t a t e , the 1959 l e g i s l a t u r e passed Chapter 7, T i t l e 83, R.C.M. 1947-'Tort Actions Against S t a t e ' , and i n seven sections, sections 83-701 through 83-707, careful l y determined how, why,- and when the s t a t e could be sued i n tort action. These l e g i s l a t i v e enactments recognize t o r t l i a b i l i t y and e s t a b l i s h immunity of the s t a t e i n excess of i t s c o l l e c t i b l e insurance. Thus, these s t a t u t o r y provisions provide a remedy against the s t a t e under c e r t a i n circumstances. he-legislature has spoken and we a r e bound by i t s enactments." (Emphasis supplied). Other provisions of the Revised Codes of Montana, 1947, speak t o t h e l e g i s l a t i v e existence of the doctfine of sovereign immunity: 40-4402 and 75-5939, R.C.M. Sections 40-4401, 1947. The l e g i s l a t u r e does not perform useless a c t s . Helena Valley I r r i g a t i o n Dist. v . S t . Hwy. Com'n, 150 Mont. 192, 433 P.2d 791. The l e g i s l a t u r e adopted Chapter 7, T i t l e 83 f o r a purpose and t h a t purpose was t o e s t a b l i s h t h e doctrine of sovereign immunity and t o provide c e r t a i n waivers of t h a t immunity. Prior t o the adoption of Chapter 7, T i t l e 83, the standards f o r applying the doctrine of sovereign immunity were s e t f o r t h in Coldwater v . S t a t e Highway, 118 Mont. 65, 74, 162 P.2d 772, where the Court s t a t e d : "Wk! hold t h a t i n the performance of d u t i e s imposed upon i t by law t h e commission was acting i n a governmental capacity. " The Court went on t o note: "We have already held t h a t the commission i s an agency of the s t a t e , created f o r the general purpose of the establishment, construction and maintenance of a system of s t a t e highways." T h i s Court i n Coldwater required two conditions precedent t o the application of the doctrine of sovereign immunity: (1) t h a t the body i n - volved be an agency of the s t a t e , and (2) t h a t the agency of the s t a t e be engaged i n the performance of d u t i e s imposed upon i t by law. The Court accepts t h i s t e s t i n order t o determine whether or not a p a r t i c u l a r a c t f a l l s within the purview of the sovereign imnunity doctrine. Both of these conditions precedent a r e present in the i n s t a n t situation. The p l a i n t i f f has brought suit against the Montana S t a t e Prison. Section 80-1401, R.C.M. ment of I n s t i t u t i o n s . 1947, provides f o r the creation of t h e S t a t e DepartSection 80-1403, R.C.M. 1947, provides in part: "The following i n s t i t u t i o n s a r e i n the s t a t e department of i n s t i t u t i o n s : "(3) S t a t e Prison ** *.I1 The Montana S t a t e Prison i s an agency of the S t a t e of Montana. P l a i n t i f f alleged the construction of the f i r e l i n e was a prop r i e t a r y function of the s t a t e i n contrast t o a governmental function; theref o r e , t h e doctrine of sovereign immunity does not apply. According t o p l a i n t i f f , pasturing and r a i s i n g c a t t l e and conducting logging operations by the s t a t e a r e proprietary i n nature; consequently, the protection of the land used i n such a function is a l s o a proprietary a c t . This Court does not accept this reasoning. First, pasturing and r a i s i n g c a t t l e and conducting logging operations by the s t a t e a r e , i n fact,governmental functions, and second, the protection of s t a t e land, regardless of i t s use, i s a governmental function. Section 80-1401, R.C.M. 1947, creating t h e S t a t e Department of Institutions, states: "The purpose of the l e g i s l a t i v e assembly i n creating a s t a t e department of i n s t i t u t i o n s i s t o u t i l i z e a t maximum efficiency the resources of s t a t e government i n a coiordinated e f f o r t t o r e s t o r e the physically o r mentally disabled, t o r e h a b i l i t a t e the v i o l a t o r s of law, * * * t o rededicate the resources of the s t a t e t o t h e productive independence of its now dependent c i t i z e n s , and t o co-ordinate and apply the principles of modern i n s t i t u t i o n a l administration t o t h e i n s t i t u t i o n s of the s t a t e . " (Emphasis suppl i e d ) . The purpose of Montana S t a t e Prison is t o r e h a b i l i t a t e violators of law through maximum u t i l i z a t i o n of the resources of s t a t e government. method of accomplishing t h i s goal i s s e t f o r t h by s t a t u t e . 1501, R.C.M. The Section 80- 1947, provides i n part: "The department of i n s t i t u t i o n s may "(1) Establish industries i n i n s t i t u t i o n s which will r e s u l t i n t h e production or manufacture of goods t h a t may be needed by i n s t i t u t i o n s and other s t a t e agencies and t h a t will a s s i s t i n the r e h a b i l i t a t i o n of residents i n i n s t i t u t i o n s . " (Emphasis suppl i ed) . Two of Montana's leading industries a r e a g r i c u l t u r e and timber. What b e t t e r way t o r e h a b i l i t a t e prisoners than t o t r a i n them t o compete in the labor market of t h i s s t a t e ' s leading industries by a c t u a l , on-the-job t r a i n i n g of the necessary s k i l l s t o compete? The s t a t e i s carrying out the duty of r e h a b i l i t a t i o n imposed upon i t by law. found i n section 80-1901, R.C.M. T h i s duty is again 1947, which provides: "The i n s t i t u t i o n a t Deer Lodge i s the ' S t a t e Prison' If pasturing and raising c a t t l e and conducting logging operations, as rehabilitative functions, are governmental functions, then the protection of the property necessary t o carry out those functions i s also a governmental function. The protection of s t a t e land i s a governmental function. Article XIX, Section 3, Constitution of Montana, s t a t e s : "The l e g i s l a t i v e assembly shall enact suitable laws t o prevent the destruction by f i r e from any cause of the grasses and f o r e s t upon lands of the s t a t e or upon lands of the public domain the control of which may be conferred by congress upon t h i s s t a t e , and t o otherwise protect the same." The people of Montana required the legislature t o provide f o r the protection of s t a t e lands from f i r e and other forms of destruction. The people enjoined a further duty upon the State of Montana regarding s t a t e lands in Article XVII, Section 1, Constitution of Montana, which s t a t e s in part: "All lands of the s t a t e that have been, or t h a t may hereafter be granted t o the s t a t e by congress, and a l l lands acquired by g i f t or grant or devise, from any person or corporation, shall be pub1 i c lands of the s t a t e , and shall be held in trust f o r the people * * * . I ' (Emphasis supplied). I t i s incumbent upon the s t a t e , as trustee, t o preserve and protect the corpus of the t r u s t , in t h i s case the land i t s e l f . The legislature, acting on the mandate of the people, did provide f o r protection of the lands of the s t a t e . Section 28-109, R.C.M. 1947, provides i n part: "Every owner of f o r e s t land classified as such by the board i s hereby required t o furnish protection against the s t a r t i n g or existence, and t o suppress the spread, of f i r e on such land during the f u l l period of each f o r e s t f i r e season defined by t h i s a c t . " (Emphasis suppl i ed) . The f o r e s t f i r e season runs from May 1 through September 30 of each year. See section 28-103, R.C.M. 1947. The f i r e in question occurred during the month of September. Further duties are imposed upon the various institutions of the s t a t e regarding protection of property under t h e i r control . Section 80-1501, R.C.M. 1947, provides i n part: "The department of i n s t i t u t i o n s may " ( 5 ) Provide f o r the repair and maintenance of property and equipment of i n s t i t u t i o n s by residents of i n s t i t u t i o n s . " The duty t o maintain the property i s mandatory, the method discretionary. Section 80-1406, R.C.M. 1947, provides i n part: "The warden or superintendents of i n s t i t u t i o n s i n the department a r e responsible f o r the immediate management and control of t h e i r respective i n s t i t u t i o n s * * *." The duty t o maintain and control property of t h e s t a t e i s enjoined upon s t a t e agencies, both expressly and impliedly. I t i s only reasonable t o s t a t e t h a t the protection of the resources and the property of the s t a t e is a governmental function. Because here we have a s t a t e agency attempt- ing t o protect the s t a t e ' s property, w find the Montana S t a t e Prison was e engaged i n a governmental function. The s t a t e has met the t e s t s , both judicial and l e g i s l a t i v e , and the doctrine of sovereign i m u n i t y must be applied. For this reason, the decision of the d i s t r i c t court is affirmed. The second issue i s whether or not t h e t r i a l court was c o r r e c t i n ruling t h a t the loaned servant doctrine applied, so as t o r e l e a s e de- fendants from l i a b i l i t y . W affirm the d i s t r i c t c o u r t ' s ruling on this e issue. The loaned bu1 ldozer and operator (Montana S t a t e Prison inmates and equipment) and the 1eased bull dozer and operator (Mickel son's bull dozer w i t h Fiske a s the operator) were f i g h t i n g a f o r e s t f i r e under the request and direction of the United States Forest Service. Agents of the United S t a t e s Forest Service directed a l l operations of the bulldozers and their drivers. The loaned servant r u l e s t h i s Court established i n Lewis v. Potter, 149 Mont. 430, 427 P.2d 306, and i n Devaney v. Lawler Corp., 101 Mont. 579, 56 P.2d 746, a r e control 1ing. In these two cases the Court established two control 1ing f a c t o r s of t h e loaned servant doctrine. First, in whose business was the person engaged? Here, there can be no doubt that the bulldozers and operators were engaged in f i r e fighting f o r the United States Forest Service. Second, under whose control, domination or direction were the bulldozers and operators working? This Court agrees w i t h the d i s t r i c t court t h a t the bulldozers and drivers were under the control, domination and direction of the United States Forest Service through i t s employees and agents. hese reasons, p l a i n t i f f w ainst either correctly barred from asserting M concur: e / I
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