Kiamas v. Mon-Kota, Inc., MON-KOT

• Decision Date: 28 January 1982
• Docket Number: No. 81-68,MON-KOT,INC,81-68
• Citation: 639 P.2d 1155,196 Mont. 357
• Parties: Peter KIAMAS, Jr., and Donna Mae Kiamas, husband and wife, Plaintiff and Appellant, v., a Montana corporation, Larry Lewis, Ervin Bieber, Duane Bieber, and Jeff Reidle, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1155

639 P.2d 1155

196 Mont. 357

Peter KIAMAS, Jr., and Donna Mae Kiamas, husband and wife, Plaintiff and Appellant, v. MON-KOTA, INC., a Montana corporation, Larry Lewis, Ervin

Bieber, Duane Bieber, and Jeff Reidle, Defendants

and Respondents.

No. 81-68.

Supreme Court of Montana.

Submitted Oct. 20, 1981.

Decided Jan. 28, 1982.

Thomas R. Halvorson, Sidney, Anderson, Edwards & Molloy, Billings, Richard W. Anderson, argued, Billings, for plaintiff and appellant.

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, L. Randall Bishop, argued, Billings, for defendants and respondents.

WEBER, Justice.

Plaintiffs allege negligence on the part of Mon-Kota resulting in a head injury to plaintiff, Peter Kiamas, with severe physical and mental damage. Summary judgment was entered for defendant, Mon-Kota, in the District Court of Richland County. We affirm the District Court.

The central issue in this case is whether the District Court properly granted summary judgment in favor of Mon-Kota, impliedly holding that the "rescue doctrine" is not applicable to the facts of this case.

Plaintiffs are farmers in Richland County. In June of 1977, plaintiff, Peter Kiamas, Jr. (Kiamas), engaged Mon-Kota to fertilize his sugar beets by the application of top dressing. Kiamas had been leasing the land in question for a period of four or five years. Mon-Kota sent two employees to apply the top dressing by the use of two Mon-Kota John Deere tractors. The two employees did not initially realize that their John Deere tractor wheels were set for 26 inch rows rather than 24 inch rows as the beets were planted in the Kiamas field. Kiamas owned John Deere tractors of the same model as the Mon-Kota tractors, and Kiamas had changed the width adjustment on his own John Deere tractors many times. Kiamas drove out to his fields to see what was going on. He noticed that the beet tops in a number of rows were ragged and torn in appearance. One Mon-Kota tractor was stopped. Kiamas talked to the driver of that tractor, and together they halted the other tractor. There was no difficulty in stopping both of the Mon-Kota tractors. Kiamas and the Mon-Kota employees talked over the problem which was causing damage to the beet tops, and discovered that the Mon-Kota tractor wheels were set for 26 inch rows instead of the 24 inch rows of the Kiamas field. As a result, they observed there was damage to the beets because the Mon-Kota tractors were driving over the tops of some of the beets. Kiamas instructed the drivers of the Mon-Kota tractors to "shut the tractors down" and that was done. The Mon-Kota drivers agreed that it was necessary to change the spacing on the tractor wheels before going further.

The Mon-Kota drivers did not have tools with which to change the spacing, and asked Kiamas if he had a jack and tools which they could use to change the spacing on the tractor wheels. Kiamas and the two drivers rode to the Kiamas farmhouse and picked up the jack, tools and equipment necessary to perform the wheel adjustment. When they returned to the Mon-Kota tractors, Kiamas injured his head while attempting to help with the wheel adjustments. In his deposition, Kiamas described how his injury occurred:

"A. Well, we got back out to the field there. And-well, like you say, the boys were pretty young, and I didn't know if they really knew what was going on or not. So I've-I guess I volunteered to go along with them. And to make sure they were going-going to do it right. And so we brought everything up to-the blocks, the jack, the tools-we all carried something over to the tractor. And I just-I grabbed ahold of a wrench, and I started loosening the wheel. And that's when it slipped off-slipped off the nut, and I cracked my head against the axle. That's basically what happened then."

The Mon-Kota drivers did not ask Kiamas to help in any way. Kiamas did not ask the Mon-Kota drivers if they knew how to change the wheel spacing. Kiamas explained that the wrench slipped off, and when asked what caused it to slip, he stated:

"A. I wish I knew. But it-the wrench was in good shape. That's all I got to say. I mean, the wrench fit on there real good. So the only thing I could say is their nuts must have been rounded off or something. 'Cause I've done the same thing for 15 years and never had anything happen to me like that before."

In substance, Kiamas did not complain that the tools were in any way defective or that the tractor was in any way defective or that the Mon-Kota drivers did not do the right thing, but simply that the wheels were not set right and if Mon-Kota had the wheels set right all this would not have happened to him. Mon-Kota has conceded that it was Mon-Kota's fault that the tractors had the incorrect wheel spacing and that Mon-Kota, therefore, is properly responsible for any resulting damage to the beet crop or land of the plaintiffs. However, in this case we are concerned with Kiamas' alleged injuries as a result of the blow on the head, which he received while trying to loosen a wheelnut on the Mon-Kota tractor.

The facts disclose, without question, that the Mon-Kota tractors had incorrect wheel spacing, but also disclose that upon discovery of the incorrect spacing, the Mon-Kota drivers shut down the tractors so there was no further risk of injury to the Kiamas land or crops. The Mon-Kota drivers agreed with Kiamas that the wheel adjustment had to be changed before any further work would be done on the Kiamas land by the Mon-Kota tractors.

Our basic question is whether or not Kiamas can be classed as being on a "rescue" mission at the time of his personal injury. As pointed out by the plaintiffs, the theory of the rescue doctrine was stated 60 years ago by Justice Cardozo as follows:

"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effect within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer... The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails but a wrongdoer also to the bystander who drags him from the path... The risk of rescue, if only it be not wanton, is borne of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had." Wagner v. International Ry. Co. (1921), 232 N.Y. 176, 133 N.E. 437.

William L. Prosser in his Handbook of the Law of Torts, Section 44, describes the rescue doctrine as follows "Upon the same basis, under the 'rescue doctrine,' efforts to protect the personal safety of another have been held not to supersede the liability for the original negligence which has endangered it. Whether or not the rescuer is to be regarded as 'foreseeable,' it has been recognized since the early case of the crowd rushing to assist the descending balloonist that he is nothing abnormal. 'The risk of rescue, if only it be not wanton, is borne of the occasion. The emergency begets the man.' ...

"Although there has been some disagreement, the great majority of the courts now apply the same rule to one who tries to rescue the property of another, even when he is under no duty to do so, and even though the property involved is that of the defendant ..." Prosser, Law of Torts § 44 (4th ed. 1971).

It may be noted that both Justice Cardozo and Professor Prosser emphasize that danger of injury or damage to person or property is the element which invites rescue. "The emergency begets the man."

Plaintiffs suggest that Ekwortzel v. Parker (1971), 156 Mont. 477, 482 P.2d 559, is a case in which this Court applied the "rescue doctrine" without actually saying so. That case is distinguishable. The defendant there kept one quite obstreperous mule which had escaped the defendant's enclosure and entered upon the plaintiff's land where the mule had been for a number of days, causing significant problems with livestock. While plaintiff was attempting to round up the mule, his horse fell, breaking plaintiff's leg. The distinction between the two cases is the need for action, the "emergency" mentioned by Cardozo and Prosser previously. Ekwortzel acted to get the mule out of the way so that he could properly move his own livestock. Here, Kiamas was not required to act either to meet an emergency or otherwise, because the tractors were stopped and there was no further risk of damage to his growing crops and fields.

Plaintiffs contend that summary judgment was not appropriate because...