No. 12835 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

LOULA RICKARD, 

Plaintiff and Appellant, 

-vs - 

GEORGE PARADIS, JAMES OLIND & 

WILLIAM McGUIRE, 

Defendants and Respondents ................................................. 

WILLIAM N. CHURCHILL, 

Plaintiff and Appellant, 

-VS - 

GEORGE PARADIS, JAMES OLIND & 

WILLIAM McGUIRE , 

Defendants and Respondents. 

Appeal from: District Court of the Fifth Judicial District, 

Honorable Frank E. Blair, Judge presiding. 

Counsel of Record : 

For Appellants : 

Burgess, Joyce, Prothero, Whelan and ~'~eary, 

Butte, Montana 

Thomas F. Joyce argued and Francis C. Burgess 

appeared, Butte, Montana 

For Respondents : 

Small, Cumnins, Hatch & Gregory Jackson, Helena, 

Montana 

Gregory Jackson argued, Helena, Montana 

Submitted: May 5, 1975 

Filed : At]; f 2 9975 
Xr. Justice Frank I. Haswell delivered the Opinion of the Court. 

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 azter 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 Wi-lliam 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 naned 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 

ofLicers on the one hand, and the town of Whitehall and its marshals on the other. The district court granted the motions for 

sununary 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. - P.2d , 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, 

i >Abased 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 Deputy 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 furnish some support for Rickard's claim that Deputy 

Olind fired the gun that wounded her. On summary judgment the 

question to be decided is whether there is a genuine issue of 

material fact, not how such issue should be determined. Fulton 

v. Clark, supra; Matteucci's Super Save v. Hustad Corp., 158 

Mont. 311, 491 P.2d 705. 

Defendants Paradis and Olind contend the question of 

whether Deputy Olind wounded Rickard is not a material question 

because they are entitled to judgment as a matter of law on the 

basis of sovereign immunity. We note that the claim arose prior 

to July 1, 1973, the effective date of abolition of sovereign 

immunity under the 1972 Montana Constitution. 

Defendants misconstrue the rule of sovereign immunity. 

It applies exclusively to the liability of the state or other 

governmental subdivision. Prosser, Law of Torts, 4th Ed., p. 970. 

It is based on the principle that to allow a suit against a ruling government without its consent negates the principle of supreme 

executive power in the state. Prosser, Law of Torts, 4th Ed., p. 

971. The policy considerations behind it are said to be the absurdity of a wrong committed by an entire people; the idea that 

whatever the state does must be lawful; that an agent of the state 

is always outside the scope of his authority where he commits a 

wrongful act; a reluctance to divert public funds to compensate 

for private injuries; and the inconvenience and embarrassment to 
the state. Prosser, Law of Torts, 4th Ed., p. 975. 

The qualified immunity of public officers from liability 

for torts committed in the performance of their duties is a separats2 principle. It involves the personal liability of such 

officers, not the liability of the governmental entity they serve. 

The basis for such qualified immunity rests on different policy 

considerations. Its purpose is not to protect public officers 

from the consequences of their wrongful acts, but to facilitate 

the proper operation of government by protecting public officers 

in the discharge of their duties where they act honestly and in 

good faith. Prosser, Law of Torts, 4th Ed., p. 989 and cases 

listed in Footnote 96. 

Here Rickard is not seeking to impose liability on the 

county or the state for the conduct of the deputy sheriff. Neither 

the state nor the county is named as a defendant. Accordingly 

sovereign immunity is not involved. 

What is involved is the personal liability of Deputy Olind 

and Sheriff Paradis for alleged negligent conduct in performance 

of their duties as public peace officers. Rickard seeks to recover damages from them personally for an alleged tortious act. 

Genuine issues of material fact exist concerning such questions 

as (1) whether Deputy Olind fired the pistol that wounded Rickard; 

if so, (2) whether such action was reasonable under the circumstances; (3) whether his actions were done in a good faith attempt to bring the melee under control, and similar issues requiring determination by the trier of the facts. Such genuine issues 

of material fact preclude summary judgment. 

Accordingly, sununary judgment as to Rickard is set aside 

and the case remanded to the district court for trial. We express 

no opinion on the merits of this controversy, nor which party 

should ultimately prevail. 
The summary judgment in favor of defendants Olind and 

Paradis in the Churchill case is affirmed. 

Justice 

We concur: , 

Chief Justice 

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Justices 

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