McGrew v. Consolidated Freightways, Inc.

• Decision Date: 04 January 1963
• Docket Number: No. 10469,10469
• Citation: 141 Mont. 324,377 P.2d 350
• Parties: Thomas A. McGREW, Plaintiff and Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., a Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 350

377 P.2d 350

141 Mont. 324

Thomas A. McGREW, Plaintiff and Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., a Corporation, Defendant and Respondent.

No. 10469.

Supreme Court of Montana.

Submitted Nov. 13, 1962.

Decided Jan. 4, 1963.

Robert J. Boyd (argued orally), John N. Radonich (argued orally), Anaconda, William R. Taylor, Deer Lodge, for appellant.

Kendrick Smith (argued orally), Butte, for respondent.

CASTLES, Justice.

This is an appeal from a judgment entered pursuant to an order granting a directed verdict for defendant, respondent here, Consolidated Freightways.

The action was brought by plaintiff and appellant against two defendants, Harley Peet and his employer, Consolidated Reightways, to recover damages for an assault and battery.

Hereinafter plaintiff and appellant will be referred to as plaintiff, the defendant and respondent Consolidated Freightways as Consolidated and the defendant Harley Peet as Peet.

Plaintiff worked for Consolidated, his duties included hostling trucks, i. e., backing trucks to a loading dock. He worked the day shift from 8:00 A.M. to 5:00 P.M. and, upon frequent occasions, was required to work until 6:00 P.M. Consolidated's foreman of the day shift, Fred Hunt, was plaintiff's immediate supervisor.

On April 28, 1959, the night shift came to work at 5:00 P.M. Peet was lead man on that shift. His duties as lead man were to give orders to the men working under him and, in general, to see that the duties of those men were carried out.

A short time before 5:00 P.M., on April 28, 1959, Hunt told plaintiff to remain on the job until 6:00 P.M. Hunt gave plaintiff a schedule indicating where trailers were to be positioned at the loading dock and that certain tractor-trucks were to be hooked to certain trailers. Shortly thereafter Robert Whorley, another employee, came to plaintiff and told him that Peet had instructed Whorley to take over the hostling, and that plaintiff was to quit work. Plaintiff told Whorley that he had orders to do the hostling and that Whorley should go tell Peet, in vulgar language, what Peet could do with himself. Whorley relayed the message to Peet.

By 5:50 P.M. plaintiff had completed the hostling so he returned to the loading dock to help load one of the trailers. Plaintiff obtained a hand truck. He was waiting for another employee to load the hand truck when Peet approached. Peet asked plaintiff if he had told Whorley to relay the vulgar message to Peet. Plaintiff answered in the affirmative. Immediately Peet attacked plaintiff, according to plaintiff's version.

As a result of the altercation, plaintiff brought this suit. In its separate answer, Consolidated admitted that plaintiff and Peet were employed by Consolidated at the time of the altercation. Consolidated admitted that Peet was a servant acting within his capacity as lead man. As an affirmative defense Consolidated alleged that plaintiff was injured in the course of his employment and was covered by the Montana Workmen's Compensation Act.

Plaintiff has not filed any written notice not to be bound by the Workmen's Compensation Act. Consolidated was bound by the provisions of Plan One of the Act and was covered at the time of the incident in question.

At the close of the submission of evidence Consolidated moved for a directed verdict. The motion was granted. The jury returned a verdict against defendant Peet in favor of the plaintiff for actual and punitive damages. Two judgments were entered, one for Consolidated that the plaintiff take nothing as against them, the other for plaintiff in the amount of $13,980 as actual damages and $1,110 punitive damages against defendant Peet. No appeal was taken on this latter judgment. Plaintiff's appeal is from the judgment on the directed verdict for one defendant, Consolidated.

The basic question presented by plaintiff's specification of error is whether or not plaintiff's injury was the result of an industrial accident, i. e., did plaintiff receive an injury within the meaning of that word as it is used in our Workmen's Compensation Act? If the answer to that question is in the affirmative, then, as to this injury, the Act is exclusive and plaintiff may not maintain a common-law action against Consolidated for assault and battery. Sections 92-203, and 92-204, R.C.M.1947.

At the time of this incident the word injury was defined by Revised Codes of Montana, 1947, § 92-418, as follows:

"Injury' or 'injured' refers only to an injury resulting from some fortuitous event, as distinguished from the...