DeShaw v. Johnson, 11837
Decision Date | 18 August 1970 |
Docket Number | No. 11837,11837 |
Citation | 155 Mont. 355,472 P.2d 298 |
Court | Montana Supreme Court |
Parties | Robert 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.
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
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:
Paragraph one of the trial court's...
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