No. 12110 INTHE 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 :

## JAN2

## 5I973 JAN 

### 51973Mr. 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 inthe 

### sum of $150,000, hospital and medical specials which at the time of summary judgment exceeded $50,000, and general damages inthe

sum of $700,000. A motion for summary judgment was granted in favor of defendants and from thisruling plaintiff appeals. On September 19, 1967, a forestfirewas burning about twenty miles north of Deer Lodge, Montana, in what iscalled the Gold Creek area. The United States Forest Service took control of fighting the fire, and in order tocontain the blaze, several bulldozers were leased and borrowed from the local area. This equipment was necessary for the construction of fire lines. The firelines 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 firefighting operation by the Montana State Prison. This loan was atthe request of the United States Forest Service; however, certain prison land was adjacent to the firearea and the StatePrison had an interest in protecting this grazing and timberland. In order tooperate the bulldozer, the prison provided a guard and two prisoner-operators to

### run the equipment

# . James Kish, a member of a firecrew 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 inthe area, a wind caused the tree to fall on him. Kish, 45 years of age atthe time of the accident, was paralyzed from the waist down as a result of the accident. Two years laterKish died. Plaintiff contended

### the uprooted treewas negligently left standing by defendants. This 

### is the basis for the lawsuit. Two issues are presented for review. First, was the trial court correct inruling thatMontana StatePrison 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 torelease the defendants from 1 iability? The trial court was correct inholding Montana StatePrison was immune from suit by reason of the doctrine of sovereign immunity. This doctrine was initially treated by this Court inMills 

### v. Stewart, 76 Mont. 429, 436, 247 

### P. 332, wherein the Court stated: 

### " 

## *

## ** Butthe state 

### is a public corporation, and out of considerations of public policy the doctrineof respondeat superior does not apply 

### to itunless assumed voluntarily. In other words, the state isnot liable for the negligent acts of 

### its agents unless through the 1

egis1ative department of government itassumes such liability. (Citing authority)," Since 1968the 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 irnmunity, atleastwhile performing governmental functions, since, while so engaged, they merely act for the benefit of the state and of the pub1icgenerally." In Three Forks 

### v. StateHighway, 156Mont. 392, 398, 480 P.2d 826, the Court noted: 

### " 

## * * * But inthe absence of a waiver of immunity, the Statemay not be liable for torts committed whi1 e engaged ina purely governmental function. Coldwater 

### v. StateHighway Comm'n, 118Mont. 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 legislatureadopted Chapter 7, Title 83, 

### R.C.M. 1947, dealing with tortactions against the state. 

### Two sections inthis chapter are important to the question before 

### us. Section 83-701, R.C.M. 1947, states inpertinent part: "The districtcourts of the stateof Montana shall have exclusivejurisdiction tohear, determine, and render judgment to 

### the extent of the insurance coveraby the stateof Montana on any claim against the state 

# ***." (Emphasis supplied). Section 83-706, R.C.M. 1947, states: "Where collectible insurance coverage from any insurer isavailable topay on behalf of, or 

### toindemnify, the state of Montana, for any settlement, compromise orjudgment under 

### this act, any cause of action shall be subject tothe terms and conditions of such policy or policies of insurance applicable; and in

### such event the stateof Montana shall be immune under this act from any claim 

### or demand, includinq judqments, inexcess of such collectible insurance. " (Emphasis supplied)

# . It

### is interesting that when House Bill 237, Thirty-sixth LegislativeAssembly, 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 itwas concurred inby the house of representativesand 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, 158Mont. 219, 221, 490 P.2d 220, spoke of the purpose of Chapter 7, Title83: "As to legal actions against the state, the 1959 legislature passed Chapter 7, Title83, R.C.M. 1947-- 'Tort Actions Against State', and inseven sections, sections 83-701 through 83-707, carefullydetermined how, why, and when the statecould 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 stateunder certain circumstances. 

### he-legislature has spoken and we arebound by itsenactments." (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 ValleyIrrigation 

### Dist. 

### v. St. Hwy. Com'n, 150Mont. 192, 433 P.2d 791. The legislature adopted Chapter 7, Title83 for a purpose and that purpose

was toestablish the doctrine of sovereign immunity and to provide certain waivers of that immunity. Prior 

### tothe adoption of Chapter 7, Title83, the standards for applying the doctrine of sovereign immunity were set forth in Coldwater 

### v. State Highway, 118Mont. 65, 74, 162 P.2d 772, where the Court stated: "Wk! hold that in

### the performance of duties imposed upon itby law the commission was acting ina 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 statehighways." This 

### Court inColdwater 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 itby law. The Court accepts this test inorder todetermine whether 

### or not a particular act fallswithin the 

### purview of the sovereign imnunity doctrine. Both of these conditions precedent arepresent in the instant situation. The plaintiff has brought 

### suit against the Montana StatePrison. Section 80-1401, R.C.M. 1947, provides for the creation of the StateDepartment of Institutions. Section 80-1403, R.C.M. 1947, provides in part: "The following institutions are inthe statedepartment of institutions:

"(3) State Prison 

## * * *.I1 The Montana State Prison isan agency of the Stateof Montana. Plaintiff alleged the construction of the firelinewas a proprietary function of the state incontrast to a governmental function; therefore, the doctrine of sovereign immunity does not apply. According to plaintiff, pasturing and raising cattleand conducting logging operationsby 

### the stateareproprietary innature; consequently, the protection of 

### the land used insuch a function is also a proprietary act. This Court does not accept this reasoning. 

### First, pasturing and raising cattleand conducting logging operations by the stateare, infact,governmental functions, and second, the protection of stateland, regardless of 

### its

### use, isa governmental function.Section 80-1401, R.C.M. 1947, creating the State Department of Institutions, states: "The purpose of the legislative assembly increating a statedepartment of institutions isto utilize at maximum efficiency the resources of stategovernment ina coiordinated effort

### torestore the physically or mentally disabled, torehabilitate the violators of law, 

## * 

## * * torededicate the resources of the stateto the productive independence of 

### its now dependent citizens, and toco-ordinate and apply the principles of modern institutional administration tothe institutions of the state.

### " (Emphasis supplied)

# . 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 setforth 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 thatwill assist in

### the rehabilitation of residents ininstitutions.

### " (Emphasis supplied)

# . Two of Montana's leading industries are agriculture and timber. What better way to rehabilitate prisoners than to train them to compete in the labormarket of this state's leading industries by actual, on-the-job training of the necessary skills tocompete? The state iscarrying out the duty of rehabilitation imposed upon itby law. Thisduty 

### is again found insection 80-1901, R.C.M. 1947, which provides: "The institution atDeer Lodge isthe '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 isalso

a governmental function. The protection of state land isa governmental function. Article XIX, Section 3, Constitution of Montana, states: "The legislative assembly shall enact suitable laws 

### toprevent the destruction by firefrom 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 statelands from fireand 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 statethat have been, or thatmay 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 pub1ic lands of the state, and shall be held in 

### trust for the people

## ** *.I' (Emphasis supplied). Itisincumbent 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 fireon such land during the full period of each forest fire season defined by this act." (Emphasis supplied)

# . The forest fireseason runs from May 1 through September 30 of each year. See section 28-103, R.C.M. 1947. The firein question occurred during the month of September. Further duties are imposed upon the various institutions of the stateregarding protection of property under their control

# . Section80-1501, R.C.M. 1947, provides inpart: "The department of institutionsmay

"(5) Provide for the repair and maintenance of property and equipment of institutions by residents of institutions." The duty tomaintain the property 

### ismandatory, themethod discretionary. Section 80-1406, R.C.M. 1947, provides inpart: "The warden 

### or superintendents of institutions in the department are responsible for 

### the immediate management and control of their respective institutions

## *

## * 

## *." The duty tomaintain and control property of the state isenjoined upon stateagencies, both expressly and impliedly. It

### is only reasonable to statethat the protection of the resources and 

### the property of the state 

### is a governmental function. Because here we have a stateagency attempting to protect the state's property, we find the Montana StatePrison was engaged ina governmental function. The statehas met the tests, both judicial and legislative, and the doctrine of sovereign imunitymust be applied. For this reason, the decision of the districtcourt is affirmed. The second issue iswhether or not the trial court was correct inruling 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 bu1ldozer and operator (Montana State Prison inmates and equipment) and the 1 eased bulldozer and operator (Mickelson's bull

# - dozer with Fiske as the operator) were fighting a forestfireunder 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 inLewis



### v. Potter, 149 Mont. 430, 427 P.2d 306, and inDevaney v. Lawler Corp., 101 

### Mont. 579, 56 P.2d 746, arecontrol1 ing. In these two cases the 

### Court established two control1 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 operatorswere engaged in firefighting 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 itsemployees and agents. hese reasons, plaintiff 

### w correctly barred from asserting ainst either



## / Me concur: I