Rickard v. Paradis

• Decision Date: 02 September 1975
• Docket Number: No. 12835,12835
• Citation: 167 Mont. 450,539 P.2d 718,32 St.Rep. 834
• Parties: Loula RICKARD, Plaintiff and Appellant, v. George PARADIS et al., Defendants and Respondents. William N. CHURCHILL, Plaintiff and Appellant, v. George PARADIS et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 718

539 P.2d 718

167 Mont. 450

Loula RICKARD, Plaintiff and Appellant, v. George PARADIS et al., Defendants and Respondents.

William N. CHURCHILL, Plaintiff and Appellant, v. George PARADIS et al., Defendants and Respondents.

No. 12835.

Supreme Court of Montana.

Submitted May 5, 1975.

Decided Aug. 11, 1975.

Rehearing Denied Sept. 2, 1975.

Burgess, Joyce, Prothero, Whelan and O'Leary, Thomas F. Joyce argued and Francis C. Burgess, appeared, Butte, for plaintiff-appellant.

Small, Cummins & Hatch and Gregory A. Jackson, Gregory A. Jackson argued, Helena, for defendants-respondents.

HASWELL, Justice.

Plaintiffs appeal from summary judgments awarded defendants in companion cases by the district court of Jefferson County. The sole issue is whether the summary judgments should have been granted.

Plaintiff in each action sought damages against defendants for alleged negligence of a peace officer acting within the scope of his employment in firing a gun and wounding each plaintiff while attempting to quell a melee that erupted in Whitehall, Montana on July 23, 1972, following a rodeo. Plaintiff Loula Rickard, a 64 year old grandmother, was walking home after visiting a local bar where several members of her family had been performing musical selections; she was hit by a bullet which entered her left shoulder and exited from her chin. Plaintiff William N. Churchill, a 20 year old carpenter, was observing the general disturbance from a point nearby when he was struck by a bullet in the left side of his face which lodged in his right jaw.

The original complaints named six defendants: the town of Whitehall, a municipal corporation; William McGuire and Topper Giono, town marshals; George Paradis, Jefferson County sheriff; and James Olind and Harold DeMers, deputy sheriffs. Motions for summary judgment in each suit were filed separately by the county officers on the one hand, and the town of Whitehall and its marshals on the other. The district court granted the motions for summary judgment by the county officers. Subsequently, plaintiffs dismissed their complaints against the town of Whitehall and Giono, one of its marshals. The other town marshal, McGuire remains a defendant.

Plaintiffs perfected this appeal against the summary judgments awarded Sheriff Paradis and Deputy Olind. The two suits by Rickard and Churchill, respectively, have never been consolidated, although they were argued together on appeal and present the same basic issue.

Rule 56(c), M.R.Civ.P., provides that summary judgment should be rendered if:

'* * * the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

The party moving for summary judgment has the burden of establishing the absence of any issue of material fact. Fulton v. Clark, Mont., 538 P.2d 1371, 32 St.Rep. 808; Beierle v. Taylor, 164 Mont. 436, 524 P.2d 783, 31 St.Rep. 554. Where the record discloses no genuine issue as to any material fact, the burden is upon the party opposing summary judgment to present evidence of a material and substantial nature raising a genuine issue of fact. Roope v. The Anaconda Co., 159 Mont. 28, 494 P.2d 922; Flansberg v. Montana Power Company, 154 Mont. 53, 460 P.2d 263.

We affirm the summary judgment granted to defendants Olind and Paradis in the Churchill suit by applying these principles. Churchill's action for damages against them is bottomed on his claim that Deputy Olind negligently and carelessly wounded him with his revolver. Sheriff Paradis' liability is vicarious, based on Olind's conduct; there was no contention the sheriff personally discharged a firearm and wounded Churchill.

An FBI laboratory ballistics report is attached to Sheriff Paradis' deposition. This report indicates that the bullet removed from Churchill's jaw was fired from a Colt revolver. The depositions of Sheriff Kenneth Cunningham of Butte and Deputy Olind show that Duputy Olind was carrying a .357 Smith & Wesson pistol. This evidence is unrebutted. There is no evidence to the contrary. Churchill failed to present any evidence of a material and substantial nature raising a genuine issue of fact as to whether Olind wounded him. Thus Sheriff Paradis and Deputy Olind are entitled to judgment as a matter of law in this action.

In the Rickard suit, plaintiff contends that there is a genuine issue of material fact as to whether Deputy Olind shot plaintiff. Neither the cartridge case nor the bullet that wounded Rickard was ever found so no ballistics tests could be made to establish whose weapon wounded her. In our view the depositions...