Flanagan v. Curran

• Decision Date: 17 April 1974
• Docket Number: No. 12527,12527
• Citation: 164 Mont. 262,521 P.2d 200
• Parties: Arthur S. FLANAGAN, Plaintiff and Appellant, v. Michael CURRAN, Defendant and Respondent.
• Court: Montana Supreme Court

Page 200

521 P.2d 200

164 Mont. 262

Arthur S. FLANAGAN, Plaintiff and Appellant, v. Michael CURRAN, Defendant and Respondent.

No. 12527.

Supreme Court of Montana.

Submitted March 22, 1974.

Decided April 17, 1974.

Hoyt, Bottomly & Gabriel, Great Falls, John C. Hoyt argued, Great Falls, for plaintiff and appellant.

Smith, Emmons & Baillie, Great Falls, William T. Baillie argued, Great Falls, for defendant and respondent.

CASTLES, Justice.

This is an appeal by the plaintiff in a personal injury action from an order of the district court of Cascade County, the Hon. Paul G. Hatfield presiding, granting summary judgment to the defendant.

The plaintiff, Arthur S. Flanagan, was employed by defendant, Michael Curran, as a ranch hand. While so employed he was run over by a tractor and suffered the injuries complained of in this action. Viewed in the light most favorable to plaintiff the circumstances surrounding the accident are as follows: Plaintiff was an 'old time' ranch hand who had during most of his working life been more involved with horses than tractors or other things mechanical. He did, however, know how to operate a tractor and had spent increasing amounts of time doing so over the last five years. As a part of his duties for defendant, plaintiff operated the tractor involved in the accident. This use was on a daily basis for three weeks preceding the accident. During this period the plaintiff had difficulty starting the tractor. Another employee showed him how to start it by 'jumping' the points of the solenoid with a pair of pliers. Plaintiff used this method by standing by the side of the tractor between the front and rear wheel. He did this during the entire period he used the tractor. The plaintiff informed the defendant's foreman, mechanic and other employees of the starter difficulties. On the day of the accident he parked the tractor with the intention of not using it until the starter dificiency was repaired. However, a 'rush' job came up and plaintiff without checking to see if the tractor was in gear jumped the points of the solenoid to start it. The tractor was in gear and when it started ran over plaintiff causing severe injuries.

On January 10, 1973, defendant's motion for summary judgment was heard and the district court indicated '* * * that I think that this case is one for summary judgment as a matter of law * * *.' However, because an appeal to the United States Supreme Court was pending in the case of Hammond v. Hager, 160 Mont. 391, 503 P.2d 52, involving the question of the availability of the defenses of assumption of risk and contributory negligence in agricultural employment cases, the district court stayed its proceedings until determination of the appeal by the United States Supreme Court. On April 2, 1973, the Supreme Court dismissed the appeal for want of a substantial federal question. Hammond v. Hager, 411 U.S. 912, 93 S.Ct. 1548, 36 L.Ed.2d 303. This dismissal effectively affirmed our determination that the defenses of assumption of risk and contributory negligence were available. On April 5, 1973, the district court entered summary judgment for defendant.

Plaintiff raises two issues on this appeal. (1) That the district court erred by granting defendant summary judgment without allowing the plaintiff an opportunity to present arguments in opposition to the motion; (2) that the district court erred in deciding that there was no material factual dispute and as a matter of law that plaintiff was contributorily negligent or had assumed the risk of his employment.

Rule 56, M.R.Civ.P., provides for a hearing on a motion for summary judgment as a matter of right. If in fact the plaintiff was denied the right to be heard on the merits of the motion the district court was in error. In this case it is clear that plaintiff had an opportunity to be heard on the merits at the hearing on January 10, 1973. The transcript of that hearing does not indicate to what extent the merits were argued since a part of the hearing was off the record. It is, however, recited in the district court's order staying proceedings that argument had been heard on the defenses of contributory negligence and assumption of risk. From this it appears that plaintiff had the opportunity to be heard and in fact was heard on the merits of the motion for summary judgment.

Plaintiff's second issue on this appeal is whether or not the district court erred in concluding that there was no material dispute of fact and as a matter of law plaintiff was contributorily negligent or had assumed the risk of his employment. Preliminary to a detailed discussion it is necessary to recall the well established rules governing summary judgment. Summary judgment is not a proper tool for resolving disputed issues of fact and is accordingly improper whenever material factual matter is in dispute. Rule 56(c), M.R.Civ.P., Mustang Beverage Co., Inc. v. Jos Schlitz Brewing Co., Mont., 511 P.2d 1; Dunjo Land Co. v. Hested Stores Co., Mont., 515 P.2d 961. Further, the burden of showing...