Montana Attorney General Opinion 15-390

Opinion No. 390 Public Officers-Montana Livestock Sanitary Board-State Veterinary Surgeon-Liability for Sub- Ol'dinates HIDLD: The members of the Li\'('- stock Sanitary Board and the State "eterinar~' surgeon are public officer;; and the doctrine of respondeat ;;uper- ior does not apply to them. November 17, 193a You ha"e asked 1Il~' opinion concern· ing the liability of the Montana Live· stock Sanitary Board and the member;; thereof individually, and the State Veterinary Surgeon, for the acts of a resident deputy state veterinary sur· geon, a district deputy state veterin- a ry surgeon, range riders, inspectors or veterinarians not regularly elll- \llo~'ed. Your question is a general one as you do not present specific facts llnd therefore it is impossible to an· swer it except in a general way. The memhers of the board and the State Veterinary Surgeon are pubHc officers. "Public office" has been de- fined in 46 C. J. 922, section 2, as fol- lows: "'Office', in the sense of public office, may be defined broadly as 11 public station or employment conferred h~' the appointment of government, or more precisely as 'the right, authOrity, and duty, createcl and conferred b,· IllW, the tenure of which is not tran- sient, occaSional, or inCidental, b~' which for a given period an indhici- ual is im'ested with power to perform a public function for the benefit of the pulJlic'." See also 9 Opinions of the Attorney General, page 494. The doctrine of repondeat superior does not apply to a public officer. In Laird v. Berthelote, et aI., 63 Mont. 122, 206 Pac. 445, in an action against the county commissioners of Hill OPINIONS OF THE AT'I'QRNEY GENERAL 271 County, for the negligen('e of an em- ploree, it was said: "The rule of the maxim 'respondeat superior' applies ouly to the personal relation of master lind servant, or principal and agent. The maxim is based upon the princi- ple 'that he who expects to deri\'e ad\'antage from an act which is done IJ~' another for him must answer for an injury which a third party may sus- tain.' (34 Cye. 1673; 35 Cye. 972; Dononlll ,. :\IcAlpiu. 85 X Y. 185. 3!l Am. Hep. 64!l: Stoddard Y. Fiske. 35 f'al. App. 607, 170 Pac. 66.3.)" Our court in that case quoted from 23 American 'anel English t~ncyclopedia of Law, second edition, page 382: " 'It j", a well-settled rule that a public of- fker is not responsihle for the acts or omissions of snhordinll tes prollerl~' em- ployed by 01' under him, for such suh- ordinates are not in his pri\'ate ser\'- ice but are themselves servants of the government, unless he has directed such acts to be done 01' has personally co-operllted in the negligence. Such an officer is, howe\'er, liable for the miscon(luct and negligence in the scope of their employment of those employed hy 01' under him \'oluntaril~' 01' pri- \'u tely 01' paid by 01' responsible to him.''' The following cases announce the snme doctrine: Colby Y. City of Portland, 85 01'. 35!), 166 Pac. 537; Skerry v. Rich, 228 Mass. 462, 117 N. K 824; Lunsford Y •• Johnson, 132 'J'enn. (i15, 17n S. ·W. 151; 1 Thompson's Com- mcntaries on the Law of Negligence, Section 601; Casey \'. Scott, 82 Ark. 362; American & ]~nglish Ann. Cas., Yol. 12, p. 184 and note p. 185; 46 C. S. 1045, Section 330. In the Laird case, in speaking of the liability of county commissioners, the C(:urt said that if they are liable at :J)\ it is because of their own negli- gencc-not for the negligence of the elliployee who was not employed by them but uy the county. As to the liability of the officers l!lentioned in your inquiry for "auto- mohile accidents and other accidents that mar occur when these agents nre ;.!'oing to or from or performing offi- dnl work or unofficial work", the gen- eral rule is that there is no liability. As we do not have the facts of any case hefore us we can only draw at- tpntion to the general principles of law as abol'e stated by the courts and text-writers. The facts of each par- tieula r case must be considered before a statement of the law applicable thereto can be made.