*1 AMANN, PAUL v. NORTHERN Appellant, and Plaintiff BUETTNER, RAILWAY and C. L. PACIFIC COMPANY Respondents. Defendants and No. 9286.
Submitted June 1955. Decided December 1955. Rehearing February 1956. Denied 292 Pac. Pfohl, Berg Livingston, Doepker Hennessey, Butte, appellant. Coleman, Lamey, Billings, Jameson and for respondents. Jr., Berg,
Mr. B. E. Mr. M. J. Doepker and Mr. Cale John Crowley orally. argued
MR. CHIEF JUSTICE ADAIR:
Appeal from a en- pleadings given brought tered for the a tort action Amann, against and one L. Paul C. Buettner *2 damages wherein to exemplary he seeks recover actual and both injuries for oc- by plaintiff fight in a Buettner sustained with curring a 1, 1948, plaintiff on at when December time Nor- shop foreman and repairman Buettner a the defendant Railway Livingston, thern at Company’s repair shop Pacific Montana. pleadings (1) complaint; (2)
The the de- are: herein The thereto; (3) the railway company’s general fendant demurrer railway’s complaint; (4) the separate answer the defendant to reply railway’s (5) the defend- plaintiff’s to the answer pleadings. judgment the railway’s ant motion for on immediately fight following the complaint alleges The report full was furnished a railway company the defendant the all circumstances under which the facts and and notice and at and that thereafter injuries plaintiff were inflicted L. Buettner in its em- it retained the said C. all times since has fully employee of the ratified the action said ploy and has injuries plaintiff. on infliction of said the railway com- By separate its the defendant interstate answer the (1) employment Buettner and pany the of both admits (3) rail- two, the Amann, (2) fight between plaintiff retain investigation thereof and decision to way’s ensuing discharge plaintiff Amann employ and to in its Buettner by way of defense and separate affirmative therefrom and railway and sets company pleads the defendant new matter Act, Liability Employer’s the Federal provisions forth in full Act to been alleging such have 45 U.S.C.A. section fight 1, 1948, occurred. when the on December effect force Employers’ that the Federal admits plaintiff hisBy reply fight. day on effect in full force and Liability Act was railway plaintiff the defendant notice to on due Thereafter pleadings interposed judgment motion for gave granted following which motion trial court which and caused take noth- judgment to be entered its ing by Plain- railway company. against action defendant appeal judgment. tiff’s from determined liability to be provisions
and measured Federal Employers’ Liability U.S.C.A., Act section 51. other any recovery pro words in his must be action had under Employers’ visions of the Federal Act as it has construed been by the federal courts.
In Young App. York v. New Central 88 Ohio N. (2d) 220, E. 70 S. certiorari denied railway 94 L.Ed., that one appears had railway duty assaulted another employee while both were railway. for the In affirming for the en upon tered a directed verdict the Ohio Court said: “Cases involving circumstances similar those of instant *3 have heretofore by been considered and decided the Federal interpretation Courts and placed upon the Federal Em the ployers’ Liability by by Act such must followed decisions be this court in the instant as applicable. case insofar are
“In the case 260 Green, 349, 123, of Davis v. U.S. 43 S. Ct. 124, 67 L. Supreme Ed. 299, States re- Court United judgment Mississippi, versed Supreme Court of Hines [a of] Green, 476, 649, 125 v. Miss. 87 which So. had affirmed the lower court holding decision railroad liable company where employee an was a conductor, who had been an en- killed gineer, employee decedent, a fellow of where the evidence dis- company closed that the employed dangerous had a man with dangerous propensities. notice Holmes, speaking
“Mr. Justice for. the said: ‘The ground Company which Railroad was that it held negligently employed dangerous had man notice of his with characteristics, killing and that the occurred in the course of engineer’s employment. allegations proof But neither nor
14 present killing to further master’s business as done anything satisfy or as but a wanton and wilful done to act temper spite may or be the engineer. Whatever law Mississippi a an un- for such act railroad liable der the statutes of States.’ the United
“To same is the later decision of the United States effect Supreme in Court the case of Atlantic Line Railroad Co. Coast 157, Southwell, 64, 25, v. 275 48 L. Ed. U.S. S. Ct. 72 which involved similar facts. ‘‘ following reasoning: Louis- follow the same St. cases Mills, 1926, San 271 U.S. Francisco Railroad Co. v. Line 520, 979; S.Ct. 70 L. Atlanta & Air Railroad Ed. Charlotte 976, L. Green, 1929, 821, 350, Co. 49 73 v. 279 U.S. S. Ct. Ed. reversing 1, per curiam 151 S.C. 148 633.” S.E.
In Southwell, 64, Atlantic Coast R. Co. v. Line 25, Supreme Ct. 72 L. Ed. 157, S. Court of United States Carolina, Supreme reversed of North decision of the Court 153, 670, 191 N. for the affirming C. E. S. railway appeared a tort that one action wherein employee shot and of such killed another while job ill both were on the and between whom there was will which railway’s then superintendent. fact to the There known Supreme Green, States v. the United Court followed Davis quoted 123, 299, 43 S. 67 L. Ed. which U.S. from Young Co., supra. v. New York Central appeal plaintiff’s instant counsel that Davis v. contend Southwell, Green, supra, Atlantic Coast Line R. Co. v. were, effect, the later case Lillie v. supra, reversed 92 L. Ed. decided Thompson, but, above, as is shown both the Green case November in the more recent the Southwell case were cited followed Young Co., supra, New York Central R. wherein ca se of *4 by petition denied the United plaintiff’s for certiorari was the 5, Supreme Court June on States Young case, App. 358, 88 N.E. page 88 Ohio at
In the clearly the distinguished the page at Ohio
15 Thompson, supra, Lillie v. it is that had quite manifest the latter decision reversed the Green case and the Southwell by plaintiff, Supreme case as is here claimed the United States Court plaintiff’s petition would not have denied the for a writ Young case, substantially of certiorari in the based as was on the same facts as well as the same federal statute.
In Minneaspolis, Co., Cir., Sheaf v. M. St. P. & S. S. (2d) 110, 113, F. complaint the issues court dismissed the on quite similar those appeal. involved in instant It there appeared plaintiff Sheaf, train, the conductor by was assaulted engineer Johnson who was the on the same train. There the “Johnson, alleged, federal court said: it was had quarrelsome many years been a person and vicious prior plaintiff, assault on all of which was known to company, railroad by ordinary or which the exercise of care should have been known to it. That the assault the since com- pany has ratified the acts retaining of Johnson him in its employment service. His under the circumstances constituted ’’ negligence. In holding “Where, insufficient the court said: as in case, this an company injured by of a railroad unprovoked an servant, assault of a though fellow even such may an assault negligence trespass, be considered rather than a employer aggressor not liable unless the was at the time acting scope the assault employment. within the of his [citing case of v. Green and quoting Davis from Davis v. Green, 43 S. L. Ed. 299]. unprovoked
“So the instant case the attack of Johnson upon employed by occurred while were both company, the defendant railroad but the way attack was in no intended further business of the and was not scope within employment. of Johnson’s decision Supreme Court in the case of Atlantic Coast Line R. Co. Southwell, 72 L. applies Ed. facts; principle
same to similar and neither of these cases has expressly Supreme since been overruled Court.
16
The upon is similar facts and above case cited and followed following construction of same in the cases de statute relying citing upon cided 1949 to 1950 all the cases from and Southwell, Co., Green and R. Davis v. Atlantic Coast Line v. 284, supra, Hoyt Cir., (2d) 174 namely, Thompson, v. 7 F. 285; Lehigh Valley Co., Cir., (2d) 592, Smith 2 F. v. R. 174 Co., 1160, 219 594; 358 Lavender v. R. Mo. S. Illinois Central (2d) 353, 67, W. Ct. 822, in 338 U.S. 70 S. certiorari denied Co, 94 L. Ry. Ed. See 82 also Reeve v. Northern Pac. 37; 144 and 1915C, Wash. Pac. L.R.A. Blunk v. Atchi (2d) son, Ry. Co., (2d) 229, T. F. 217 Pac. App. & S. 97 Cal. 494, 497; Atchison, Ry. Co., App. Lanners v. T. F. 344 Ill. & S. Co., 99 Pac. 137 Neb. 705; N.E. Bocian v. Union R. of Davis N.W. 372 v. also cites follows ease Green, supra. construing
There is clear distinction the cases between Employers’ Liability section Act, the Federal Title U.S.C.A. Jones Act plaintiff construing and the cases cited relating 688, which dis- sea, vessels at section U.S.C.A. Young York pointed tinction out in New Central v. 225, in Bros. v. Gru- (2d) 220, page Lykes 88 N.E. at S. S. Co. Minneapolis, baugh, Cir., (2d) 387, 391, 128 F. in Sheaf v. P. & Co., supra. St. S. S. M. R. of a fed- particular
The
at bar
the construction
involves
the United
eral
this
the decisions of
bound
statute
Texas
Supreme
construing
in
such statute. See
States
Court
Ry.
(2d) 557;
App. 262
Younger,
& P.
Tex. Civ.
S.W.
Co.
Ry.
49 S.
Stapleton,
Chesapeake & O.
Co. v.
442,
The in at bar do show the case Buettner, carrying fight, was out engaging fendant engaged perform- in the assigned duties or that he was then any employed perform. ance of task that he was employed merely alleges that Buettner was The relay shop rail- relay in the repairman as he fight here involved was road and that at time allega- acting is no employment. of his There in the course part plead fight tion was a tending engaging shop. repairman railway’s as Buettner’s duties fur- complaint alleges the defendant and circum- report and all the facts nished a full notice of injuries and while stances which the were inflicted under fight as a result of the alleges that Buettner was not fired such wholly allege that fired as a result of fails to *6 fight. hearing
In railway company admits that answer pro- plaintiff was had at which Buettner were allowed and railway any testimony duce or and that the witnesses desired full notice of facts concern- company report received a and all ing alleges that result of said fight, said and it further as a Such retained. hearing plaintiff discharged was and Buettner allegations plaintiff’s reply which apparently are in not denied allegations portion particularly addresses itself to the of sep- railway’s designation of the “For a following answer matter, by way of defend- arate affirmative defense and new ant alleges.” railway company specific- proper its answer the defendant
ally plain- allegations paragraphs 9 of denied complaint, relating damages, a further tiff’s and then “For ’’ way separate of new matter affirmative defense and paragraph alleged third thereof that on December shop in plaintiff present relay in its and Buettner were plaintiff, under employment, their and that while course of provocation, pro- intoxicating liquor and without inflence of Buettner, him; plain- fanely that neither abused and assaulted defending in committing tiff said nor Buettner in assault employ- assault, acting scope of his against was within said railway company, ment or in the furtherance by the defendant in any railway company and also business de- defense the paragraph the fourth of its said affirmative Employers’ Lia- the Federal pleaded fendant bility Act.
Plaintiff’s reply admits the allegations of first and paragraphs second separate of defendant’s defense affirmative allegations denied the paragraph thereof, the third ex- cept allegations plaintiff present Buettner were duty and on in said relay employ- in shop the course of their ment. reply also specifically admits the law United States pleaded railway’s was as is in the defendant an- swer.
Under the above construing cited Title 45 decisions U.S.C.A. deny
section railway’s liability which similar facts, circumstances pleaded, and conditions as are here we pleadings hold that the fail plaintiff to show that Amann and Buettner acting were employment the course of their while they engaged fight and encounter wherein the injuries received the complains. of which he here Plaintiff here Judge Berg contends District since had earlier railway company’s
denied the defendant demurrer to the complaint, thereby holding complaint sufficient, that there Judge Lessley after who called to hear and determine de fendant’s pleadings, motion bound and could neither Judge Berg’s prior ruling review nor reverse on the demurrer. This contention we find to be without merit. *7 See Surety Co., Outlook Farmers Elevator Co. v. American 8, 16, 70 Mont. 223 Boyle Chicago, Pac. M. & St. Ry. Co., 453, 459, P. 60 Mont. 199 21 also, C.J.S., Pac. 283. See Courts, 195(c), pages 337-339; C.J., section 15 Courts, section 359, page 963; C.J.S., Pleading, 556; 71 page section J., Pleading, 561, pages 453, C. section
Accordingly judgment of the district court is ordered affirmed. ANDERSON, BOTTOMLY,
MR. JUSTICES DAVIS and concur. (dissenting).
MR. JUSTICE ANGSTMAN: in I think this ease should be reversed. no further than the my go I need support position In 140, 141, 68 S. Ct. Thompson, case of Lillie v. in that the court Ed., authorities relied on
L. and the case. opinion, according the court’s complaint
In to that case the [petitioner], required her charged following: “Respondent 11:30 alone between 22-year telegraph operator, a to work old in an building situated p. m. in a frame and 7:30 a. m. one-room yards Memphis. in part respondent’s railroad isolated yards fre- were Though reason to know the respondent had exercise reason- by dangerous characters, he failed to quented guard to surroundings or light building and its able care to to receive and any way. Petitioner’s duties were patrol or it in yard. in the order messages operating to men trains deliver necessary for them messages it was get for the trainmen to throughout building irregular to come at intervals duty it admit them when night, petitioner’s and was buildings in the knocked. there were no windows Because the door was single building door or the side of the which on only identify seeking entrance located, petitioner persons could m. opening About 1:30 a. unlocking and the door. knock, responded a think- night injury petitioner of her seeking admission. respondent’s trainmen were ing some of it man en- door, and she could close opened She before seriously perm- iron, large piece her with a tered and beat anently injuring her.” in the under the facts stated
The court held that defendant provision against” complaint duty to make reasonable “had duty negli- be of that would danger. It held breach injury that the say as matter of law gence and that cannot It held the part negligence. from such not result did summary judgment for enter that was error to sufficient and opinion on the rule of law rested respondent. Torts, Restatement, section Comment n. stated may negligent “A act be part provides Section * * * an un- situation which involves b. creates a one which: *8 reasonable risk to another because expectable of the action of ’’ other, a third person, an animal or a force of nature. Com- ment to which the court referred in Lillie as its au- thority contains a number of illustrations there would be where liability. Among 16, reading: others is “A number is a landlord apartment of an employs janitor, house. He B knowing as a B is a man of temper. C, uncontrollable a tenant of one of the apartments, complains B inadequacy of the the heat. B furiously becomes ang’ry C, seriously hurting and attacks him. A is liable to C.”
Here allegations are railway company that defendant advised of the dangerous propensities employee and of “resentful, his quarrelsome, vindictive, and turbu- threatening lent disposition plaintiff”, towards and that defendant com- pany was requested to place have him removed from the where plaintiff required danger plaintiff. to work because of the request This was alleged to negligently disregarded have been and defendant Buettner without cause and without the fault or provocation plaintiff wrongfully maliciously assaulted plaintiff gouged eye. out his alleged left The facts here make a stronger negligence case of part of the company than those the Lillie case. In the Lillie case was not an railway company who committed the as- sault, as here, yet liability. court held there was was sufficient to state a cause of action and regardless of the fact that at the oral argument aband- right oned his theory alleged recover on the as in his com- plaint that defendant Buettner at the assaulting plain- time of tiff acting “was in the course of employment by his scope and in the employment as such ’’ employee. it is consequence
Likewise of no the answer contains allegations that plaintiff profanely abused and assaulted Buett- ner the latter plaintiff. before assaulted allegation That mere- ly tendered issue as to whether assault Buettner’s was without *9 may provocation plaintiff’s complaint. Such issues alleged as pleadings. on for on not be resolved motion nec case, Lillie any authority, If further aside from the Wabash essary, Tatham v. then attention is called to case of 1287, (2d) A.L.R. 735, R. 412 Ill. 107 N.E. held practically parallel this on the was where a case with facts suf to be ruled ease and that the was Lillie ficient. 349, 43 S. Ct. Green,
Neither case of Davis v. Southwell, R. v. 123, 67 L. Ed. Atlantic Line Co. nor Coast point 72 L. Ed. here. U.S. S. Ct. charged In the Davis case it was that employed notice of his charac-
negligently
dangerous
a
man with
On
allegation
proof.
teristics. But this
was
sustained
not
“We
point
said,
this
the court
S.
U.S.
124]
[260
nothing
justify
that
a verdict unless
see
would
evidence
respondent superior
simply
The
applies.”
the doctrine of
killing
that
allegation
proof
that there
nor
held
was neither
“anything
or as
but
was done to further the master’s business
temper
spite
a
satisfy
wanton and wilful
to
or
act done
engineer.”
opinion
proposition
is rested on the
proof
bring
allegation
there
no
that would
was
fact no
respondent
i.
superior,
e., that
the case within the rule of
It
assault
done in
master’s business.
was
furtherance of the
primary negli-
simply held that
not
do with
the case did
have to
knowledge of
gence
having
dangerous man
employed
with
failed make out
dangerous propensities
to
his
since
evidence
respect.
in that
Southwell, supra,
In the case of Atlantic Coast Line
Co.
(not
mak
the one
the facts were that the victim of the assault
dangerous
assault)
charac
ing the
who had known
one
The court’s sum
comparable
It is
to
teristics.
this case.
:
mary
the facts
as
26]
follows [275
“ * * *
Southwell,
Fonvielle,
general yard master, knew
threat
killed,
had used
previous
man who was
occasions
Southwell;
Dallas,
to
shot
that Fonvielle
ening language
who
ought
knew or
to
have known that
likely
were
to meet
they did;
when
Dallas,
Fonvielle was with
subordinate,
just before that moment and that
‘Cap.
Dallas said to him
all
I want to do is to ask
lay
Southwell to
off of me and let me
alone,’ and that Fonvielle said that
Southwell,
he must not see
that if he saw him and talked to him might
bring about un
pleasant consequences; that
left Dallas
Fonvielle
and after hav
ing gone a short distance saw him and Southwell approaching
each other and had
steps
taken a few
towards them with a view
separate
them in case of an altercation, but that
he
before
had
time
reach them the shot was fired. Fonvielle knew that
pistol
Dallas had a
but there was a strike at the time. Dallas
special
was a
policeman
right
carry
had
and not un
*10
* * *”
naturally did.
The
that
fact
person
making
assaulted and not the one
the assault was the dangerous man furnished the basis for the
court’s opinion
plain
by
made
said,
what the court
viz: “The
only
designs
sinister
any
which there is
evidence were
of
of
against
Southwell
Dallas, unless
just
Dallas’ remark
before the
event,
shooting be taken to foreshadow the
certainly
which it
did not seem to until after the
happened.
ap-
event had
It
pears to us extravagant
to hold
petitioner
liable in a case
like this. See St. Louis-San
Mills,
Francisco R.
v.Co.
Here the reverse is According true. to the of dangerous knew the characteristics of the who committed the assault and was warned of might the likelihood that he so long do advance of the event.
Mere knowledge provocative of the nature of the one assaulted as in the Southwell case negligence would not show part company. Before it could negligent be held to be been, there must as here, allegation have it knew of the dangerous propensities of the one actually who as made the sault in advance of the event. That case does not support defendant’s contention here. This difference between the Lillie from what drew cases is Davis and Southwell case and the ‘‘ * * * do The cases cited following: Lillie case the court in the in this pleadings in the set forth fact situation cover the in the exactly the same as situation here is The fact case.” any Southwell case the Davis or Lillie But if either case. support the defend imagination can be said of the stretch be overruled they must be held to then ant’s contention here Thompson which Lillie v. implication by the ease of by necessary Supreme Court of subject by the the last case United States. App. 88 Ohio York Young v. New Central
The case majority in the strongly relied on N.E. so plaintiff had that case this. opinion, comparable is not at the by relieving him him man who assaulted worked with the “ along ‘got showed end and the evidence shift ” as here of warned employer had not been right.’ all the one required to work with danger being suf- not turn on the did making the Likewise assault. ficiency complaint as this. does Mills, Ry. Co. v. Francisco
The case of St. Louis-San Young in the 979, relied on 520, 70 L. Ed. 46 S. Ct. majority opin- approval apparent case and cited with injury There the this case. here, ion no resemblance to bears guard, employer had furnished was done strikers and the duty dis- held that employees and hence was grounds Lillie ease should be noted that charged. It *11 v. the case of Green patrolled. Likewise guarded or were not Ry. Co., 151 S.C. S.E. Air Line & Atlanta Charlotte 976, is L. Ed. reversed injury was done in that case the this since comparable to no con- railway company had over whom gang of robbers trol. not state the basis Supreme Court did States
The United ground that there was evidently was on but opinion its kept men on since the defendant negligence proof no premises. policing grounds my opinion judgment should be reversed and the cause
remanded with directions to overrule motion for on the pleadings.
LAURENCE S. CARLSON, as Trustee Liquidation Alex
Shulman a corporation, Plaintiff and Respondent, FLATHEAD COUNTY, and STATE OF et al., Defendants, Appellants. MONTANA, et al., Intervenors No. 9262. May 9, Submitted 1955. Decided December 1955. Rehearing February Denied 1956. Pac. Olsen, Atty. Gen., Arnold H. Massman, Atty. Hubert J. Asst'. Gen., Vralsted, Sp. Atty. Gen., Lyman H. O. Asst. Hall, J. Deputy Atty. Asst. Gen., appellants.