Osborn v. Lawson

• Citation: 374 P.2d 201
• Decision Date: 28 August 1962
• Docket Number: No. 3084,3084
• Parties: Maxwell E. OSBORN, Administrator of the Estate of John D. Charles, Deceased, and Chicago Pneumatic Tool Company, a New Jersey corporation, Appellants (Plaintiffs below), v. Charles Logan LAWSON, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 201

374 P.2d 201

Maxwell E. OSBORN, Administrator of the Estate of John D. Charles, Deceased, and Chicago Pneumatic Tool Company, a New Jersey corporation, Appellants (Plaintiffs below), v. Charles Logan LAWSON, Appellee (Defendant below).

No. 3084.

Supreme Court of Wyoming.

Aug. 28, 1962.

Ferrall, Bloomfield, Osborn & Lynch, Maxwell E. Osborn, Cheyenne, for appellants.

Hirst & Applegate, Byron Hirst, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

The action herein was brought on August 2, 1960, by Maxwell E. Osborn, Administrator of the Estate of John D. Charles, Deceased, and Chicago Pneumatic Tool Company, a New Jersey corporation, against Charles Logan Lawson. The amended petition, filed July 11, 1961, alleges in substance as follows:

After mentioning that Osborn was administrator of the estate of John D. Charles, it is alleged that on February 12, 1959, the defendant Charles Logan Lawson was engaged in driving a snowplow on U. S. Highway 30 at a place approximately 60 miles east of Rock Springs, Wyoming; that at that place the highway traffic lanes were divided into eastbound and westbound lanes by a dirt fill; that defendant was driving said snowplow during a period and within an area of poor visibility due to falling and blowing snow in a westerly direction and against traffic in the eastbound lane; that decedent was driving an automobile owned by the plaintiff Chicago Pneumatic Tool Company in an easterly direction on the eastbound lane on said highway; that a head-on collision occurred between the snowplow and the automobile due to the negligence of defendant; that the death of Charles was caused immediately by that collision and plaintiff asks judgment for $202,000.

The Chicago Pneumatic Tool Company alleged that it owned the automobile driven by John D. Charles and that the value of the automobile was reduced by reason of the collision and asked judgment in the sum of $1,560.

The defendant Charles Logan Lawson, in his answer, alleged as follows:

He, the defendant, was acting as the officer and representative of and on behalf of the State Highway Commission of Wyoming and the State of Wyoming, and, therefore, he has immunity from any liability to plaintiffs in this action; that while employed as aforesaid he was in charge of snowplows and was driving a snowplow on U. S. Highway Interstate 80 about two miles west of Red Desert, Wyoming, and that the deceased Charles drove an automobile head-on into the snowplow and was killed. As a separate defense, defendant alleged that the collision was caused by the negligence of John D. Charles, the deceased.

On August 16, 1961, defendant moved the court for a summary judgment because defendant Lawson acted for the State of Wyoming and is immune from liability for his acts, and defendant Lawson was not negligent in the death of John D. Charles, and the deceased was guilty of negligence. The affidavits of J. R. Bromley and the defendant Lawson were attached.

The affidavit of Bromley states that at the time in question he was superintendent and chief engineer of the State of Wyoming Highway Department; that defendant Lawson was an officer of the highway department in charge of maintenance of the particular highway upon which the collision occurred; that the highway commission had established a particular manner and method of clearing snow from the highways when necessary; that this manner and method were being followed by defendant Lawson at the time of the collision mentioned in the amended petition; that the type of snowplow being operated by defendant Lawson at the time of the accident was the only type of snowplow furnished and available and that it was necessary in order to clear snow from the highway upon which the collision occurred for the plow to be driven against traffic; that at the entrance to the divided highway in question large, clearly visible, readable signs were established stating 'SNOWPLOWS WORKING AGAINST TRAFFIC.'

The affidavit of defendant Lawson states that he is the defendant mentioned in the amended complaint; that at the time and place in question defendant, while maintaining the highway as an officer for and on behalf of the highway commission of Wyoming in clearing snow from the highway in the only manner possible, was operating a truck equipped with a side delivery, nonreversible, one-way snowplow and was traveling west against traffic on the north half of the south portion of a divided highway; that the countryside for many miles around the place of the accident was covered by loose and blowing snow and it was still snowing at the time of the collision; that visibility was fair except when meeting and passing vehicles which caused a heavy cloud of fine snow; that defendant's trucksnowplow had all lights burning including the blinking blue light on the top of the cab and two headlights on top of the cab and clearance lights on and around the top of the truck; that immediately prior to the accident a truck passing the snowplow threw up a dense cloud of snow making visibility zero at the instant of the accident; that decedent Charles drove along the highway under these conditions at a high rate of speed directly into the snowplow; that the collision happened on the north half of the south portion of the divided highway in the lane in which the snowplow was driving; that at the time, at the entrance to the divided highway in question, there were large, clearly visible and readable signs stating, 'SNOWPLOWS WORKING AGAINST TRAFFIC.'

No counteraffidavits were filed.

On October 6, 1961, after hearing the motion of the defendant for summary judgment the trial court entered an order sustaining the motion on the ground that the defendant was immune from liability in this action. From that judgment the plaintiffs have appealed to this court.

It is the contention of the appellee that defendant Charles Logan Lawson, appellee herein, was immune from liability the same as the highway commission and that this was specifically decided by this court in the case of Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309. See also Ellis v. Wyoming Game and Fish Commission, 74 Wyo. 226, 286 P.2d 597. The appellants contend that defendant was not immune and assert that the governmental immunity on behalf of an employee was not discussed or decided in the Price case and that case accordingly is not pertinent herein. In the Price case plaintiff made the highway commission, J. R. Bromley, highway superintendent, and Timothy Daly party defendants, the latter being the party who operated a snowplow a few miles west of Glenrock, Wyoming. The petition in that case charged that Daly operated the snowplow negligently by reason of which a collision occurred in which the plaintiff's car was demolished and he sustained personal injuries. Separate demurrers were filed on the part of the highway commission, J. R. Bromley, and the defendant Daly, each asserting that the petition failed to state a cause of action against the several defendants. The trial court sustained the demurrers, holding that the plaintiff's petition did not state a meritorious claim. It is true that the separate immunity of Daly was not discussed to any great extent but, after discussing the immunity of the highway commission, the opinion also stated, 'The demurrers of the defendants Bromley and Daly were also properly sustained.' It is quite clear we think that the demurrer by Daly should not have been sustained if he was not in fact immune from liability the same as the highway commission.

We have examined the brief of the appellant (plaintiff in error) in that case in which counsel stated, 'As to defendant Daly who personally operated the truck, his liability is clear, as we shall show in the following paragraph III.' Counsel then proceeded to discuss the immunity of governmental entity and the immunity of employees, and cited several cases similar to cases cited by the appellant in the case at bar, holding that while the governmental entity would be immune from liability, the employee was not. In view of the contention in that case, it is incredible that this court overlooked the question of immunity of Daly. We think the Price case determined that the driver of the snowplow was immune to the same extent as the highway commission.

An examination of the cases dealing with a question similar to that in the case at bar is rather disconcerting. It may be difficult to lay down any general rule in connection with such cases. Nowell v. Wright, 3 Allen, Mass., 166, 80 Am.Dec. 62. Some of the cases on the subject holding an employee not immune from liability are based on the theory that his act claimed to be negligent was ministerial. See Annotation, 40 A.L.R. 1361. It is contended herein by appellants that the action of defendant was ministerial and while the highway commission is immune from liability herein, the defendant, whose acts are claimed to have been negligent herein, should not be.

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