DeShaw v. Johnson, 11837

Decision Date18 August 1970
Docket NumberNo. 11837,11837
Citation155 Mont. 355,472 P.2d 298
CourtMontana Supreme Court
PartiesRobert DeSHAW, Plaintiff, v. Ralph W. JOHNSON, Bruce Johnson, Jane Johnson, Lincoln Co. Electric Co-Operative Inc., a Corp. and Interbel Telephone Cooperative Inc., a Corporation, Defendants. INTERBEL TELEPHONE COOPERATIVE INC., Defendant and Third-Party Plaintiffs, v. DeSHAW CONSTRUCTION COMPANY, Third-Party Defendants.

Korn, Warden & Walterskirchen, Merritt N. Warden (argued), Kalispell, Raymond Hildebrand, Glendive, for plaintiffs.

Habedank, Cumming & Best, Jacque W. Best (argued), Sidney, Murphy, Robinson, Heckathorn & Phillips, Kalspell, for defendants.

CASTLES, Justice.

This is an appeal from an order granting a motion for summary judgment and dismissing a third-party complaint of Interbel Telephone Cooperative, Inc., against the third-party defendant, DeShaw Construction Company. The case is before us only upon the pleading and the motions and rulings thereon.

The plaintiff is not involved in the issues to be determined here. His complaint alleges that at all times material he was the employee of DeShaw Construction Company, now the third-party defendant. Other allegations are: That on February 3, 1964, plaintiff 'was directed by the defendants (Ralph W. Johnson, Bruce Johnson, Jane Johnson, Lincoln County Electric Co-operative and Interbel Telephone Co-operative, third-party plaintiff) to climb a yard pole so constructed and operated by the defendants, as aforesaid, and to connect a telephone drop wire leading therefrom to the residence of the defendants Johnsons, the energy for which telephonic service was to be supplied by the defendant Interbel Telephone Cooperative, Inc., a corporation, one of the defendants herein named. That it was necessary that plaintiff install said telephone drop wire above conductors which had previously been improperly installed by defendants, as aforesaid. That pursuant to said direction, plaintiff climbed said pole and in attempting to make the telephone line installation plaintiff's hand came in contact with a defectively installed bare 'hot' wire running from the conductor on said pole to the yard light on the pole, all negligently constructed and operated by the defendants, all of which was known to the defendants, who did not notify plaintiff of the negligent and wrongful ungrounded wire connections which defendant failed to properly install and ground as required by law and by said Safety Code. That upon plaintiff's hand coming in contact with said 'hot' high tension wire, which defendants had negligently failed to ground, he received through his hands, arms, and body a severe electrical shock which caused him to be knocked from the pole to the ground, breaking the heels of both his feet, severely shocking plaintiff's body, arms, legs, and feet, and causing him excruciating pain, suffering, and electrical burns throughout his body, arms, legs, neck, and head, all proximately caused by the negligence of the defendants and each of them.'

Defendants filed answers denying liability and pleading other defenses. Defendant Interbel filed its third-party claim against DeShaw Construction Company in which it pleaded the suit brought against it by the plaintiff; the contract between itself and DeShaw; that the contract provided in part: 'The Contractor (DeShaw Construction Company) shall hold the Owner (Interbel) harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Contractor or any of the Contractor's agents or employees during the control by the Contractor of the Project or any part thereof', and its denial of any liability to the plaintiff. It pleaded that DeShaw was negligent and said negligence caused the plaintiff's injuries. The negligence allegation is based on DeShaw Construction Company's failure to require the plaintiff to wear rubber gloves as was allegedly required by the contract during such activity. The prayer of the third-party complaint was for indemnity against DeShaw Construction Company for any judgment recovered by the plaintiff against the third-party plaintiff; or in the alternative for contribution from DeShaw Construction Company.

To this third-party complaint, DeShaw Construction Company filed a motion for summary judgment. In support of the motion, DeShaw Construction Company alleged that the plaintiff was an employee of it and by the provisions of the Workmen's Compensation Act of Montana, the exclusive liability of the third-party defendant is to provide compensation as provided by the Act.

The trial court entered its order granting a summary judgment. In support of the order, the trial court attached the following memorandum:

'The Order granting the Third-Party Defendant's motion for dismissal is based on the following grounds:

'1. That the Workmen's Compensation Act of Montana does not prevent an employee of an employer from instituting an action based upon negligence of a third-party defendant, arising out of a contractual obligation or operation between the employee's employer and said third-party.

'2. The provision appearing in Section 1(f) of the Contract and Agreement between the Third-Party Plaintiff and Third-Party Defendant restricts any holding of the Third-Party Plaintiff harmless by the Third-Party Defendant for only those acts of negligence on the part and arising by the acts of the Third-Party Defendant itself. The Plaintiff's Complaint as it pertains to the Third-Party Plaintiff alleges separate and distinct acts of negligence against said Third-Party Plaintiff, Interbel Telephone Cooperative, Inc.

'3. The court believes that the rule more specifically stated in 53 ALR 2d 979 applies, to-wit: That a third person tortfeasor, who is liable for injuries to a workman, is not entitled to recover contribution from the workman's employer, notwithstanding the fact that the workman's employer's negligence concurred in causing the injury to the employee, where the employer, the employee, and the particular injury, are covered by the provisions of the Montana Workman's Compensation Act.'

Paragraph one of the trial court's...

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    • Alabama Supreme Court
    • 17 September 1993
    ...Construction Co., 292 Minn. 91, 193 N.W.2d 305 (1971); Martin v. Fulton Iron Works Co., 640 S.W.2d 491 (Mo.App.1982); De Shaw v. Johnson, 155 Mont. 355, 472 P.2d 298 (1970); Union Pac. R.R. v. Kaiser Agricultural Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988); American Fed. Savings Bank v. ......
  • Borroel v. Lakeshore, Inc.
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    • U.S. District Court — District of Colorado
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    ...Acts. See eg., City of Artesia v. Carter, 94 N.M. 311, 610 P.2d 198 (1980), cert. denied, 94 N.M. 628, 614 P.2d 545;5 DeShaw v. Johnson, 155 Mont. 355, 472 P.2d 298 (1970)6; see also Titan Steel Corp. v. Walton, 365 F.2d 542, 549 (10th Cir.1966) (construing Utah law); Forward v. Cotton Petr......
  • Pust v. Union Supply Co.
    • United States
    • Colorado Court of Appeals
    • 16 December 1976
    ...construction of that state's Workmen's Compensation Act to determine whether Union's suit was properly dismissed. In DeShaw v. Johnson, 155 Mont. 355, 472 P.2d 298 (1970), the Montana Supreme Court held that the fact that an employer had paid an employee for injuries pursuant to the Montana......
  • Poulsen v. Treasure State Industries, Inc.
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    ...recovery from that party. May Trucking Co. v. International Harvester (1975), 97 Idaho 319, 543 P.2d 1159; see also DeShaw v. Johnson (1970), 155 Mont. 355, 472 P.2d 298. "As a general rule one compelled to pay damages for the negligent or tortious act of another is not entitled to indemnit......
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