No. 12110 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JAMES KISH, 

Plaint iff and Appellant, 

MONTANA STATE PRISON and DONALD E. 

MICKELSON, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Third Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant : 

Knight, Dahood and Mackay, Anaconda, Montana. 

Wade J. Dahood argued, Anaconda, Montana. 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

Larry D. Huss argued, Assistant Attorney General, 

Helena, Montana. 

William Jensen, Assistant Attorney General, appeared, 

Helena, Montana. 

Corette, Smith and Dean, Butte, Montana. 

R. D. Corette, Jr. argued, Butte, Montana. 

Filed : 

Submitted: November 28, 1972 

Decided : 

JAN 2 5 I973 

JAN 5 1973 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

The plaintiff filed this case in Powell County district court for 

severe and permanent injuries. He alleged he had been damaged by permanent 

wage loss in the sum of $150,000, hospital and medical specials which at 

the time of summary judgment exceeded $50,000, and general damages in the 

sum of $700,000. A motion for summary judgment was granted in favor of 

defendants and from this ruling plaintiff appeals. 

On September 19, 1967, a forest fire was burning about twenty miles 

north of Deer Lodge, Montana, in what is called the Gold Creek area. The 

United States Forest Service took control of fighting the fire, and in order 

to contain the blaze, several bulldozers were leased and borrowed from the 

local area. This equipment was necessary for the construction of fire lines. 

The fire lines were constructed and controlled by employees of the United 

States Forest Service and the drivers of the bulldozers were under the direct 

and exclusive supervision of the forest service, One of these bulldozers 

was leased from Mickelson, who owned and operated a construction business in 

Deer Lodge, Montana. Mickelson supplied an operator for the bulldozer, one 

Charles Fiske; however, while constructing the fire lines, Fiske was under 

the control and was paid by the United States Forest Service. Another bulldozer was loaned to the fire fighting operation by the Montana State Prison. 

This loan was at the request of the United States Forest Service; however, 

certain prison land was adjacent to the fire area and the State Prison had an 

interest in protecting this grazing and timberland. In order to operate the 

bulldozer, the prison provided a guard and two prisoner-operators to run the 

equi pment . 

James Kish, a member of a fire crew from Butte, was on the fire 

line several days after the bulldozers had constructed the fire line. Allegedly, an uprooted tree was left standing and was allowed to lean against 

another tree. When plaintiff Kish was in the area, a wind caused the tree 

to fall on him. Kish, 45 years of age at the time of the accident, was 

paralyzed from the waist down as a result of the accident. Two years later 
Kish died. Plaintiff contended the uprooted tree was negligently left 

standing by defendants. This is the basis for the lawsuit. 

Two issues are presented for review. First, was the trial court 

correct in ruling that Montana State Prison was imune from suit by reason 

of the doctrine of sovereign immunity? Second, was the trial court correct 

in ruling that the loaned servant doctrine applied as to release the defendants from 1 iabil ity? 

The trial court was correct in holding Montana State Prison was 

immune from suit by reason of the doctrine of sovereign immunity. This 

doctrine was initially treated by this Court in Mills v. Stewart, 76 Mont. 429, 

436, 247 P. 332, wherein the Court stated: 

" * * * But the state is a public corporation, and 

out of considerations of public policy the doctrine of 

respondeat superior does not apply to it unless assumed 

voluntarily. In other words, the state is not liable 

for the negligent acts of its agents unless through the 

1 egis1 ative department of government it assumes such 

liability. (Citing authority) ," 

Since 1968 the Court has several times considered the issue of . 

sovereign immunity. In Longpre v. School District No. 2, 151 Mont. 345, 

347, 443 P.2d 1, the Court stated: 

' * * * And, generally speaking, all public agencies; 

institutions or political subdivisions of the state 

partake of this sovereign irnmuni ty, at least while 

performing governmental functions, since, while so 

engaged, they merely act for the benefit of the state 

and of the pub1 ic generally." 

In Three Forks v. State Highway, 156 Mont. 392, 398, 480 P.2d 826, the 

Court noted: 

" * * * But in the absence of a waiver of immunity, 

the State may not be liable for torts committed 

whi 1 e engaged in a purely governmental function. 

Coldwater v. State Highway Comm'n, 118 Mont. 65, 162 

P.2d 722." 

As can be seen from this authority, this Court has recognized and applied 

the doctrine of sovereign immunity. The Montana legislature has also acted 

to bring formal recognition to the doctrine of sovereign immunity. In 1959 

the legislature adopted Chapter 7, Title 83, R.C.M. 1947, dealing with tort 
actions against the state. Two sections in this chapter are important 

to the question before us. Section 83-701, R.C.M. 1947, states in pertinent part: 

"The district courts of the state of Montana shall have 

exclusive jurisdiction to hear, determine, and render 

judgment to the extent of the insurance coveraby the state of Montana on any claim against the state * * *." (Emphasis supplied). 

Section 83-706, R.C.M. 1947, states: 

"Where coll ecti bl e insurance coverage from any insurer 

is available to pay on behalf of, or to indemnify, 

the state of Montana, for any settlement, compromise 

or judgment under this act, any cause of action shall 

be subject to the terms and conditions of such policy 

or policies of insurance applicable; and in such event 

the state of Montana shall be immune under this act 

from any claim or demand, includinq judqments, in excess of such collectible insurance. " (Emphasis supplied) . It is interesting that when House Bill 237, Thirty-sixth Legislative Assembly, now Chapter 7, Title 83, R.C.M. 1947, was introduced, the 

emphasized portion of section 83-701, R.C.M. 1947, was omitted. A senate 

amendment added that language and it was concurred in by the house of representatives and signed by the Governor. (For the amendment see Senate Journal of the Thirty-sixth Legislative Assembly, page 452.) The Supreme Court 

in Kaldahl v. St. Highway Comm'n, 158 Mont. 219, 221, 490 P.2d 220, spoke 

of the purpose of Chapter 7, Title 83: 

"As to legal actions against the state, the 1959 

legislature passed Chapter 7, Title 83, R.C.M. 1947-- 

'Tort Actions Against State', and in seven sections, 

sections 83-701 through 83-707, careful ly determined 

how, why, - - and when the state could be sued in tort 

action. These legislative enactments recognize tort 

liability and establish immunity of the state in 

excess of its collectible insurance. Thus, these 

statutory provisions provide a remedy against the 

state under certain circumstances. he-legislature has spoken and we are bound by its enactments." 

(Emphasis supplied). 

Other provisions of the Revised Codes of Montana, 1947, speak to the legislative existence of the doctfine of sovereign immunity: Sections 40-4401, 

40-4402 and 75-5939, R.C.M. 1947. 

The legislature does not perform useless acts. Helena Valley 
Irrigation Dist. v. St. Hwy. Com'n, 150 Mont. 192, 433 P.2d 791. The 

legislature adopted Chapter 7, Title 83 for a purpose and that purpose 

was to establish the doctrine of sovereign immunity and to provide certain 

waivers of that immunity. 

Prior to the adoption of Chapter 7, Title 83, the standards for 

applying the doctrine of sovereign immunity were set forth in Coldwater v. 

State Highway, 118 Mont. 65, 74, 162 P.2d 772, where the Court stated: 

"Wk! hold that in the performance of duties imposed 

upon it by law the commission was acting in a governmental capacity. " 

The Court went on to note: 

"We have already held that the commission is an 

agency of the state, created for the general purpose 

of the establishment, construction and maintenance 

of a system of state highways." 

This Court in Coldwater required two conditions precedent to the 

application of the doctrine of sovereign immunity: (1) that the body involved be an agency of the state, and (2) that the agency of the state be 

engaged in the performance of duties imposed upon it by law. The Court accepts 

this test in order to determine whether or not a particular act falls within 

the purview of the sovereign imnunity doctrine. 

Both of these conditions precedent are present in the instant 

situation. The plaintiff has brought suit against the Montana State Prison. 

Section 80-1401, R.C.M. 1947, provides for the creation of the State Department of Institutions. Section 80-1403, R.C.M. 1947, provides in part: 

"The following institutions are in the state department of institutions: 

"(3) State Prison * * *.I1 

The Montana State Prison is an agency of the State of Montana. 

Plaintiff alleged the construction of the fire line was a proprietary function of the state in contrast to a governmental function; therefore, the doctrine of sovereign immunity does not apply. According to 

plaintiff, pasturing and raising cattle and conducting logging operations 
by the state are proprietary in nature; consequently, the protection 

of the land used in such a function is also a proprietary act. This 

Court does not accept this reasoning. 

First, pasturing and raising cattle and conducting logging 

operations by the state are, in fact,governmental functions, and second, 

the protection of state land, regardless of its use, is a governmental 

function. 

Section 80-1401, R.C.M. 1947, creating the State Department of 

Institutions, states: 

"The purpose of the legislative assembly in creating 

a state department of institutions is to utilize at 

maximum efficiency the resources of state government in a coiordinated effort to restore the physically or 

mentally disabled, to rehabilitate the violators of law, * * * to rededicate the resources of the state to the 

productive independence of its now dependent citizens, 

and to co-ordinate and apply the principles of modern 

institutional administration to the institutions of the 

state. " (Emphasis suppl ied) . 

The purpose of Montana State Prison is to rehabilitate violators of law 

through maximum utilization of the resources of state government. The 

method of accomplishing this goal is set forth by statute. Section 80- 

1501, R.C.M. 1947, provides in part: 

"The department of institutions may 

"(1) Establish industries in institutions which will 

result in the production or manufacture of goods that 

may be needed by institutions and other state agencies 

and that will assist in the rehabilitation of residents 

in institutions. " (Emphasis suppl i ed) . 

Two of Montana's leading industries are agriculture and timber. 

What better way to rehabilitate prisoners than to train them to compete in 

the labor market of this state's leading industries by actual, on-the-job 

training of the necessary skills to compete? The state is carrying out 

the duty of rehabilitation imposed upon it by law. This duty is again 

found in section 80-1901, R.C.M. 1947, which provides: 

"The institution at Deer Lodge is the 'State Prison' 
If pasturing and raising cattle and conducting logging operations, as rehabilitative functions, are governmental functions, then the 

protection of the property necessary to carry out those functions is also 

a governmental function. 

The protection of state land is a governmental function. Article 

XIX, Section 3, Constitution of Montana, states: 

"The legislative assembly shall enact suitable laws 

to prevent the destruction by fire from any cause 

of the grasses and forest upon lands of the state 

or upon lands of the public domain the control of 

which may be conferred by congress upon this state, 

and to otherwise protect the same." 

The people of Montana required the legislature to provide for the protection of state lands from fire and other forms of destruction. The people 

enjoined a further duty upon the State of Montana regarding state lands 

in Article XVII, Section 1, Constitution of Montana, which states in part: 

"All lands of the state that have been, or that may 

hereafter be granted to the state by congress, and 

all lands acquired by gift or grant or devise, from 

any person or corporation, shall be pub1 ic lands 

of the state, and shall be held in trust for the 

people * * *.I' (Emphasis supplied). 

It is incumbent upon the state, as trustee, to preserve and protect the 

corpus of the trust, in this case the land itself. 

The legislature, acting on the mandate of the people, did provide 

for protection of the lands of the state. Section 28-109, R.C.M. 1947, 

provides in part: 

"Every owner of forest land classified as such by the 

board is hereby required to furnish protection against 

the starting or existence, and to suppress the spread, 

of fire on such land during the full period of each 

forest fire season defined by this act." (Emphasis 

suppl i ed) . 

The forest fire season runs from May 1 through September 30 of each year. 

See section 28-103, R.C.M. 1947. The fire in question occurred during 

the month of September. 

Further duties are imposed upon the various institutions of the 

state regarding protection of property under their control . Section 
80-1501, R.C.M. 1947, provides in part: 

"The department of institutions may 

"(5) Provide for the repair and maintenance of 

property and equipment of institutions by residents 

of institutions." 

The duty to maintain the property is mandatory, the method discretionary. 

Section 80-1406, R.C.M. 1947, provides in part: 

"The warden or superintendents of institutions in the 

department are responsible for the immediate management and control of their respective institutions * * *." 

The duty to maintain and control property of the state is enjoined upon 

state agencies, both expressly and impliedly. It is only reasonable to 

state that the protection of the resources and the property of the state 

is a governmental function. Because here we have a state agency attempting to protect the state's property, we find the Montana State Prison was 

engaged in a governmental function. 

The state has met the tests, both judicial and legislative, and 

the doctrine of sovereign imunity must be applied. For this reason, the 

decision of the district court is affirmed. 

The second issue is whether or not the trial court was correct 

in ruling that the loaned servant doctrine applied, so as to release defendants from liability. We affirm the district court's ruling on this 

issue. 

The loaned bu1 ldozer and operator (Montana State Prison inmates 

and equipment) and the 1 eased bull dozer and operator (Mickel son's bull - 

dozer with Fiske as the operator) were fighting a forest fire under the 

request and direction of the United States Forest Service. Agents of the 

United States Forest Service directed all operations of the bulldozers and 

their drivers. The loaned servant rules this Court established in Lewis 

v. Potter, 149 Mont. 430, 427 P.2d 306, and in Devaney v. Lawler Corp., 

101 Mont. 579, 56 P.2d 746, are control 1 ing. In these two cases the Court 

established two control 1 ing factors of the loaned servant doctrine. First, 
in whose business was the person engaged? Here, there can be no doubt 

that the bulldozers and operators were engaged in fire fighting for the 

United States Forest Service. Second, under whose control, domination 

or direction were the bulldozers and operators working? This Court agrees 

with the district court that the bulldozers and drivers were under the 

control, domination and direction of the United States Forest Service 

through its employees and agents. hese reasons, plaintiff w 

correctly barred from asserting ainst either 

Me concur: / I