                            NO.    94-482
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995

BENJAMIN C. ROBERTS,
          Plaintiff/Appellant,


PEGASUS GOLD CORPORATION,
a foreign corporation; O'KEEFE
DRILLING COMPANY, INC., a
Montana corporation;   BEAL
MOUNTAIN MINING, INC., a
Montana corporation; and
DOES ONE through FIVE,
                                               $bPi‘%
          Defendant/Respondents.




APPEAL FROM:   District Court of the Third Judicial District,
               In and for the County of Deer Lodge,
               The Honorable Ted L. Mizner, Judge presiding.



COUNSEL OF RECORD:

          For Appellant:

               Richard J. Pyfer, Small, Hatch, Doubek & Pyfer,
               Helena, Montana

          For Respondent:

               Paul C. Meismer, Lucy T. France, Garlington, Lohn &
               Robinson, Missoula, Montana; Thomas E. Hattersley,
               David C. Dalthorp, Gough,     Shanahan, Johnson &
               Waterman, Helena, Montana


                                  Submitted on Briefs:   July 13, 1995

                                            Decided: Septeniber19,   1995

Filed:
Justice James C. Nelson delivered the Opinion of the Court.


       This is an appeal from a decision of the Third Judicial

District      Court,    Deer Lodge County,     granting   summary   judgment   in
favor of respondents, O'Keefe Drilling Company, Inc. (O'Keefe) and

Beal Mountain Mining, Inc. (BMMI).             We affirm.
       We restate the issues as follows:

I.     Did the District Court err in ruling that                    the O'Keefe

employees were not acting within their scope of employment in the
alleged    incident?

II.    Did the District Court err in finding no genuine issue of

material fact existed as to whether a BMMI employee or an O'Keefe

employee caused Roberts' injury?

III. Did the District Court err in determining BMMI had no duty to

provide security on the road where the incident occurred?
                                       Facts

       BMMI owned and operated Beal Mountain Mine.             BMMI hired, as

independent      contractors, O'Keefe Drilling Company and Dave Smith

Contracting.           Plaintiff,   Benjamin C. Roberts (Roberts), was an

employee of Dave Smith Contracting.

       On October 9, 1990, at approximately 5:00 p.m., Roberts was
hauling a load of clay on a public forest service road leading to

the Beal Mountain Mine.             Roberts observed a white flatbed truck

with three people in the cab and toolboxes, oxygen and acetylene

tanks mounted on the back.           Roberts testified that, as the flatbed

truck passed him, a loud explosion went off causing damage to his

left   ear.    Roberts could not see what was thrown but he believed it

                                          2
was a blasting cap.          Testimony was also presented that it was
possible,    though   unlikely,     the noise was caused by the driver
intentionally causing the truck to backfire.           Roberts believed the
flatbed truck was one he had seen a few days before which belonged
to BMMI.
        Roberts reported the incident to a coworker who contacted
BMMI.    BMMI investigated the incident and concluded, based on the
description of the truck and the recorded time schedule, that the
flatbed truck belonged to O'Keefe and not to BMMI.
        On November 2,      1992,    Roberts filed a complaint against
O'Keefe, Pegasus Gold Corporation, and BMMI to recover damages as
a result of injuries caused by either an employee of BMMI or an
employee    of   O'Keefe.      After briefing and oral arguments,          the
District Court granted summary judgment in favor of all three
defendants on July 28, 1994.            Roberts appeals the grant of summary
judgment to BMMI and O'Keefe only.
                                    Discussion
        We apply the same standard in reviewing a district court's
grant of summary judgment as that used by the court under Rule

56(c),     M.R.Civ.P.--"    [slummary    judgment   is proper only when no
genuine issue of material fact exists and the                moving   party is
entitled to a judgment as a matter of law."             Spain-Morrow Ranch,
Inc., v. West (1994),        264 Mont. 441, 444, 872 P.2d 330, 331-32,
citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849
P.2d 212, 214.
                                   I.

     Did the District Court err in            ruling that the O'Keefe
employees were not acting within their scope of employment in the

alleged   incident?

     Roberts admits the record supports the conclusion that an

O'Keefe employee was responsible for the explosion.            However, he
reserves as a question for the jury whether in fact an O'Keefe

employee or a BMMI employee caused the explosion.              If the jury

found an O'Keefe employee responsible, Roberts contends O'Keefe is
liable for its employee's actions under the theory of respondeat

superior.
     Roberts refers to Maguire v. State (1992), 254 Mont. 178, 182,

835 P.2d 755, 758, where we restated respondeat superior imposes

liability on an employer for wrongful acts of an employee committed

within the scope of his employment.           Roberts reasons O'Keefe's

employees were in the course of employment at the time the incident

occurred because they were in route in a company vehicle from their

work place to their own personal vehicles.                Roberts cites to

Webster v. Mountain States Telephone and Telegraph Company         (1939),

108 Mont. 188, 199, 89 P.2d 602, 605, where we said where "the work
of an employee creates the necessity for travel,             he is in the

course of his employment,   even though he is serving at the same

time some purpose of his own."

     The facts in Webster, however, involved negligent driving and

the liability of the employer when the employee was driving in the

course of employment.   Webster,        89 P.2d at 605.     In the case at


                                    4
hand, the alleged injury did not result from the employee driving
the vehicle but from intentionally throwing an explosive from the
vehicle or causing the truck to backfire.                Nothing in the record
suggests     the act of      driving    caused the            injury   to   Roberts.
Therefore, what we stated in Webster does not apply here.
     Roberts further contends that this Court,                     in Lassabe     v.
Simmons Drilling, Inc. (1987), 228 Mont. 94, 743 P.2d 568, provided
that employees may be considered in the course of employment while
going   to   or   coming     from    work      when    the     employer provides
transportation to      the     job     site.          Here,     O'Keefe     provided
transportation for its employees to the job site.
     Lassabe, though, was a workers' compensation case and it is
recognized that the concept of "scope of employment" in those sorts
of cases is broader than in the context of respondeat superior.
Larson's treatise on workers' compensation law discusses what is
meant by "course     of    employment"      in the context of respondeat
superior and workers' compensation.
     In the law of respondeat superior, the harmful force is
     always an act of the servant, or at least an omission
     which is the equivalent of an act.        The inquiry is
     whether the performance of that act was in furtherance of
     the master's    business.     But in many work terl's
     compensation situations, the harmful force is not the
     employee's act, but something acting upon the employee.
1 Larson, Workmen's Compensation Law 5 14.00, pp.4-1 to 4-2.
     Moreover, under pre-1987 versions of the Workers' Compensation
Act, we were required to liberally construe workers' compensation
statutes in favor of the employee.              See 5 39-71-104, MCA (1985),
and Grief v. Industrial Accident Fund (1939), 108 Mont. 519, 526,

                                        5
93 P.Zd 961, 963. Respondeat superior cases do not require such an

interpretation.     Therefore,    Lassabe's interpretation of scope of
employment does not control here.

     O'Keefe correctly argues there must be some connection between

the alleged tortious conduct and the employer's business to hold

the employer liable.     The    act, if   isolated, must not be imputable

to the employer.    Kornec v. Mike Horse Mining Co. (1947), 120 Mont.

1, 9, 180 P.2d 252, 256. We agree with the District Court's use of
our analysis in Kornec.        In Kornec, plaintiff was injured during a
scuffle with an employee of defendant while on the job.                      The

quarrel arose out of an ongoing confrontation between plaintiff and

defendant's mining company.        There were two different versions of

the assault.     One version was that the employee attacked plaintiff

for threatening to disturb the mine.              In     that   situation,    the

defendant would have benefited from the tort and would, therefore,

be liable for the employee's action.          Kornec,    180 P.2d at 256. It

was a question of fact for the jury to determine whether the

employee was acting in the course of his employment.

     Here,     it is Roberts'    contention   that      the   O'Keefe   employees

threw an explosive from the truck or intentionally caused the truck

to backfire as Roberts passed.        Accepting      Roberts'    interpretation

of the facts, there is no genuine issue of material fact.                The act

of throwing the explosives, or intentionally causing the truck to

backfire, was neither authorized by O'Keefe nor was it incidental

to conduct authorized.     The act did not benefit O'Keefe in any way.

See Kornec, 180 P.2d at 256. Therefore, we conclude the District

                                      6
Court did not err in ruling that the O'Keefe employees were not
acting within their scope of employment in the alleged incident.


      Did the District Court err in finding no genuine issue of
material   fact existed as to whether a BMMI employee or an O'Keefe
employee caused Roberts' injury?
      Roberts argues the record contains a genuine fact question as
to who caused the explosion that resulted in his injury.                    The
disputed issue, however, is not material given our holding in Issue
I.     Neither BMMI nor O'Keefe would be held liable for their
respective employees' actions under these facts.
                                          III.
       Did the District Court err in determining BMMI had no duty to
provide security on the road where the incident occurred?
       Roberts alleges BMMI maintained actual, voluntary control of
the road between the mine site and BMMI's administrative offices.
Roberts asserts BMMI monitored and controlled traffic on the
roadway to such an extent that it assumed the responsibility of
providing security for all road use.                Thus,    he argues BMMI is
liable for the actions of O'Keefe's employees on a theory of
negligent supervision of the road.
       We agree with the District Court's               findings that BMMI's
control of the roadway was limited.              BMMI provided a pilot car to
escort      chemical     trucks     and      visitors   to    the   mine   site.

Additionally, BMMI exercised control over the speed limit along the
road solely to         minimize   dust as was     its obligation to the Air
Quality   Bureau.    There is no further evidence in the record to
suggest BMMI assumed responsibilities in patrolling the roadway
that would lead to an assumption of duty to provide security.
Therefore, we       conclude   the   District   Court did not   err in
determining BMMI had no duty to provide security on the road where
the incident occurred.
                                       September 19, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


Richard J. Pyfer
Small, Hatch, Doubek & Pyfer
P.O. Box 236
Helena, MT 59624-0236

Paul C. Meismer) LMcy T 6-e
Attorney at Law
P.O. Box 7909
Missoula, MT 59807

Thomas E. Hattersley, i)qv;d c, &&orp
Attorney at Law
P.O. Box 1715
Helena, MT 59624

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
