Arthur E. West v. Morrison-Knudsen Company, Inc.

This is an action to recover damages for personal injury filed by Arthur West, plaintiff, against a joint venture, as defendant, one of whose members was Morrison-Knudsen Company, Inc., which will hereafter be referred to as Morrison-Knudsen. It was filed in the District Court of Pondera County, Montana, and thereafter removed to the United States District Court for the District of Montana, Great Falls Division. No petition to remand was ever filed and the documentation before us would confirm jurisdiction in the United States District Court pursuant to the removal statutes, 28 U.S.C. §§ 1441-1450 .

The amended complaint alleged that the defendants had contracted with the United States to construct a missile launching base in Pondera County. The defendants in turn had entered into a written subcontract with the American Bridge Division of the United States Steel Corporation to furnish and erect structural and miscellaneous steel.

The general contract between the United States Government and defendants incorporates certain safety requirements which plaintiff alleges imposes duties on Morrison-Knudsen, the general contractor, which duties are made nondelegable by the contract. A…

(dissenting) :

I respectfully dissent. The majority opinion sustains the district court’s dismissal of West’s complaint on the ground that it did not state a claim for relief cognizable under Montana law. In my view, those conclusions rest on a misreading of the controlling Montana authority.

As the majority opinion acknowledges, Montana law recognizes exceptions to the general rule that a general contractor is not liable for injuries to third persons caused by an independent subcontractor’s negligence. One exception fixes liability upon the employer or general contractor where the work to be performed is inherently dangerous. (A. M. Holter Hardware Co. v. Western Mtge. & Warranty Title Co. (1915) 51 Mont. 94 , 149 P. 489 ; Fegles Const. Co. v. McLaughlin Const. Co. (9th Cir. 1953) 205 F.2d 637 .) A second exception imposes liability on the general contractor when he assumes a specific duty by contract; he cannot avoid liability for failing to perform his duty by subcontracting with another for performance. (Ulmen v. Schwieger (1932) 92 Mont. 331 , 12 P.2d 856 .) The majority opinion finds an exception to the second exception, whereby employees of an independent contractor are…

451 F.2d 493 Arthur E. WEST, Plaintiff-Appellant, v. MORRISON-KNUDSEN COMPANY, Inc., et al., Defendants-Appellees. No. 24042. United States Court of Appeals, Ninth Circuit. Nov. 8, 1971. Robert W. Gabriel (argued), of Bretz & Gabriel, Great Falls, Mont., for plaintiff-appellant. Jack L. Lewis (argued), of Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants-appellees. Before HAMLEY, HUFSTEDLER and TRASK, Circuit Judges. TRASK, Circuit Judge. 1 This is an action to recover damages for personal injury filed by Arthur West, plaintiff, against a joint venture, as defendant, one of whose members was Morrison-Knudsen Company, Inc., which will hereafter be referred to as Morrison-Knudsen. It was filed in the District Court of Pondera County, Montana, and thereafter removed to the United States District Court for the District of Montana, Great Falls Division. No petition to remand was ever filed and the documentation before us would confirm jurisdiction in the United States District Court pursuant to the removal statutes, 28 U.S.C. Secs. 1441-1450 . 2 The amended complaint alleged that the defendants had contracted with the United States to construct a missile…