LaForest v. Ronald LeLand and E.K. Williams

Full title: JOSEPH E. LAFOREST, PLAINTIFF AND APPELLANT, v. RONALD LELAND AND COMPANY…

Court: Supreme Court of Montana

Date published: Jan 20, 1977

559 P.2d 1177 (Mont. 1977)

559 P.2d 1177

Opinion

No. 13284.

Submitted January 11, 1977.

Decided January 20, 1977.

Appeal from the District Court of Silver Bow County. Second Judicial District. Hon. Arnold H. Olson, Judge presiding.

Gregory J. Skakles (argued), Anaconda, for plaintiff-appellant.

Greenwood Petaja, Nicholas C. Jacques (argued), Helena, for defendants-respondents.

MR. JUSTICE HASWELL delivered the opinion of the Court.

This is an action for damages resulting from an alleged failure of defendants to procure worker's compensation coverage for the operation of plaintiff's service station in Butte, Silver Bow County, Montana. From an order of the district court, Silver Bow County, transferring venue to the district court, Lewis and Clark County, Montana, plaintiff appeals.

The complaint alleges that in February, 1972, defendant Roland LeLand and Company entered into an oral contract with plaintiff to procure worker's compensation coverage for the operation of plaintiff's service station in Butte, Silver Bow County, Montana. The complaint alleges both breach of contract and negligence by defendant in failing to procure the coverage. Plaintiff was subsequently injured in an industrial accident. The complaint seeks damages in the amount of workmen's compensation benefits to which plaintiff would have been entitled had coverage been procured.

The place of performance was not expressed in the oral contract. A dispute exists concerning whether the place of contracting was in Butte, Silver Bow County, or Helena, Lewis and Clark County. Plaintiff resides and operates his service station in Butte, Silver Bow County. The principal place of business of defendant Roland LeLand and Company is in Helena, Lewis and Clark County, and its president Roland LeLand resides there.

We hold that the place of performance of the contract controls venue in this case. Section 93-2904, R.C.M. 1947. Absent the underlying contract, there is no negligence, no claim for relief, and no lawsuit. The gravamen of the complaint is failure to procure the coverage as agreed. By necessary implication, the coverage was to be procured by defendant at its place of business in Lewis and Clark County. The place of performance exception applies to contracts where the place of performance is indicated by necessary implication. McGregor v. Svare, 151 Mont. 520, 445 P.2d 571 and cases cited therein.

Judgment affirmed.

MR. CHIEF JUSTICE HATFIELD and JUSTICES DALY and JOHN C. HARRISON concur.

MR. JUSTICE SHEA, deeming himself disqualified, did not participate in this case.