
    KATHLEEN A. HECK CALKINS, Individually and as Guardian Ad Litem of DEBRA HECK, et al., Plaintiff and Appellant, v. OXBOW RANCH, INC., a Montana Corporation, d/b/a Gillis Aviation, Defendants and Respondents.
    No. 12164.
    Decided April 10, 1972.
    495 P.2d 1124.
    
      Walter H. Bithwell, argued, Idaho, Howard I. Manweiler, argued, Boise, Idaho, Jones, Olsen & Christensen, Billings, Webb & Tway, Boise, Idaho, for appellants.
    Anderson, Symmes, Forbes, Peete & Brown, Billings, John L. Hilts, argued, Billings, for respondents.
   MR. JUSTICE CASTLES

delivered the Opinion of the ■Court.

This is an appeal from a summary judgment for defendant in a wrongful death action. The judgment was entered upon the granting of a motion for summary judgment by the district [■court of the thirteenth judicial district, Yellowstone County, ¡Judge Charles B. Sande presiding.

I The action was brought by Kathleen A. Heck Calkins as ¡the surviving spouse of Donald E. Heck, deceased, and the Biatural mother and guardian ad litem of Debra, Sally, Laura »nd Edward Heck, who are minor children of the marriage If Kathleen A. Heck Calkins and Donald E. Heck, deceased.

■ Plaintiff, individually and as guardian ad litem, instituted Bction against defendant alleging that defendant furnished B) Dow, Inc. a licensed commercial pilot by the name of Andrew ■eichel, “* * * an employee, servant, and agent of said De-Iftndant * * * to safely carry the said Donald E. Heck, as a Hkssenger from Billings, Montana to Eugene, Oregon.” It was He contention of plaintiff that the pilot was acting within the course and scope of bis employment; that be was an agent of defendant at tbe time of tbe accident; and that be was-negligent.

Defendant is Oxbow Ranch, Inc., a Montana corporation, doing business as Gillis Aviation.

On April 4,1968, Donald B. Heck was killed while a passenger in an aircraft owned by bis employer, Dow, Inc., a Wyoming corporation, with corporate headquarters located at Billings, Montana. Tbe crash of tbe airplane occurred in Oregon, while Mr. Heck was on a business trip originating in Billings enroute to Eugene, Oregon. Also killed were the pilot, Deichel, and Donald A. Dow, president of Dow, Inc. owner of tbe airplane and on whose business tbe trip was taken.

Defendant moved for summary judgment on tbe basis of tbe depositions in this action pursuant to Rule 56, M.R.Civ.P., on tbe grounds that tbe pilot, Deichel, was neither an actual nor an ostensible agent of tbe defendant and that there was no ratification of any of tbe acts of tbe pilot on tbe part of tbe defendant, such that tbe doctrine of respondeat superior did not apply as to tbe defendant and that therefore no liability could be predicated upon any agency relationship of tbe defendant. I

Tbe issue is whether there is any evidence tending to establish! an agency relationship implied or ostensible, upon tbe doctrine] of respondeat superior. While tbe appellant’s brief included “actual” agency in its statement of tbe issue, it is conceded! that there is no proof of actual agency. I

First, appellant urges that where an appeal is taken froJ tbe granting of a summary judgment this Court will review thl testimony in tbe most favorable aspect it will bear in suppoifl of a plaintiff’s claim of the right to present tbe merits of hW case to tbe fact finder. Mally v. Asanovich, 149 Mont. 99, 42 P.2d 294; Knowlton v. Sandaker, 150 Mont. 438, 436 P.2d 9

In discussing a motion for summary judgment in Gallatin T & Sav. Bk. v. Henke, 154 Mont. 170, 172, 461 P.2d 448, 44

-this Court citing from Silloway v. Jorgenson, 146 Mont. 307, 406 P.2d 167, said:

“'**• the party opposing motion [for summary judgment] must present facts in proper form — conclusions of law will not suffice; and the opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, nor merely suspicions.’ 6 Moore’s Federal Praetict 2d, § 56.15[3], pp. 2346, 2347; Hager v. Tandy, 146 Mont. 531, 410 P.2d 447.”

In the instant case most of the parties to the arrangement of the flight are dead. This presents to the surviving spouse a difficult proof problem. But, proof of an actual or ostensible agency may be in the form of circumstantial proof as well as direct proof. In Freeman v. Withers, 104 Mont. 166, 172, 65 P.2d 601, 603, this Court said:

“It [agency] may be implied from conduct and from all the facts and circumstances in the case * * * and may be shown by circumstantial evidence.”

Also, in Hamilton v. Lion Head Ski Lift, Inc., 139 Mont. 335, 340, 363 P.2d 716, 718, this Court said:

; “<*«=* agency is a matter, not to be presumed, but to ¡be proven, and the burden of proving it must be borne by [the party who asserts it.’ ”

I Before proceeding to an analysis of the facts, we shall briefly set forth provisions pertaining to agency. Sections 2-104, 2-105, fc-106, and 2-124, R.C.M.1947, define actual and ostensible ligency. Section 2-106 states that an agency is ostensible when he principal intentionally, or by want of ordinary care, causes Br allows a third person to believe another to be his agent who ft not really employed by him.

|ft The deceased pilot, Deiehel, had worked for Herrod Aviation B’om January 1968 until April 1968, when he quit because wanted a few days off prior to the commencement of new íployment with Northwest Airlines as a pilot. Deiehel had . Airline Transport Pilot’s rating the highest attainable, uchel had never worked for Gillis Aviation.

In February 1968, Dow, Inc. had begun negotiations with. Gillis Aviation for the purchase of an airplane. On February-16, Dow made a deposit on the aircraft. On March 30, Dow made a $1500 payment and financial arrangements at a bank, to pay the balance. Gillis Aviation issued a bill of sale. This, is the aircraft that crashed on April 4, 1968.

The two main officers and owners of Dow, Inc. were Donald. A. Dow, President, and Terry Lowell, Vice-President. They-had purchased the aircraft. They made all arrangements. The deceased Heck was their employee. Both Dow and Lowell either were taking flying lessons from Gillis Aviation or were planning to. The aircraft was to be used in Dow, Inc.’s business.

In addition to the business dealings between Dow, Inc. and Gillis Aviation on the purchase of the aircraft, Dow, Inc. had used certain of the pilots employed by Gillis Aviation to pilot the company aircraft. It is clear from the depositions that the company relied on Mr. Gallagher, Manager of Gillis Aviation, for many things such as advice, pilot arrangements, flight training and others.

However, the depositions reveal that flights were made by Dow, Inc. personnel in the aircraft involved with one Barovich as the pilot and Dow, Inc. paid only for his meals and his room, but not for his services as a pilot. No charge was ever made by Gillis Aviation for any of the flights of Barovich.I The only charges received by Gillis were for the pilot who was! teaching Dow how to fly and for log books, rather than fon any charter flights. |

In attempting to make arrangements for the flight fronl Billings to Eugene, which proved to be the fatal flight, Dowl Inc. representatives contacted various pilots who had previous* flown them. They were advised that none of them could pilen the aircraft. One of these pilots, Barovich, was a collejl student, holder of a private license, who had worked as a fligMj line employee of Gillis Aviation. Dow representatives wepj told that Barovich could not fly them as a free-lance operati -and they would have to go through Gillis Aviation to get a .pilot. Dow, the president of Dow, Ine., did ultimately contact ■Gallagher and requested that he, Gallagher, secure a pilot. ■Gallagher finally contacted Deichel.

Pilot Deichel was introduced by Gallagher to the Dow, Inc. irepresentatives as a qualified pilot who, while awaiting a call ’to employment by Northwest Airlines, would take the trip to Eugene to earn some extra money. Pilot Deichel made lit clear to all that immediately upon Northwest’s call, Dow, Ine. ■could be required to return him to Billings.

There was never any discussion with Gillis Aviation by any member of Dow, Inc. concerning any charges for the flight by Deichel. The only testimony concerning any arrangements Tor charges by Deichel came from Gallagher who stated that he introduced Deichel to Lowell and Dow and said, “You fellows make your own arrangements with Andy Deichel. ’ ’

Lowell simply did not know what arrangements were made ¡with pilot Deichel. Diane Dow, wife of the deceased president [of Dow, Ine. and its then bookkeeper, did not know what [arrangements were made with Deichel, but she did know that pn a previous occasion or occasions, Dow, Inc. had paid for idiots through Gillis Aviation.

I The deceased, Heck, was an employee of Dow, Inc. accompanying his boss, Don Dow, and apparently never knew what ■rrangements had been made.

Plaintiff, appellant here, recognizes that there is no direct ftstimony of an agency, but insists that all inferences from ftets of prior business transactions between Dow, Ine. and Milis Aviation concerning aircraft, flight instruction, and [ftocurement of pilots, together with the foregoing summary IS how pilot Deichel was procured, supply circumstantial IBidence sufficient to withstand a motion for summary judg-Iftnt. Plaintiff would go even further in setting forth facts IB referring to Gallagher’s activities in checking weather IBormation for the trip; making arrangements for an air search in Oregon after hearing that the aircraft was missing; volunteering free transportation of the bodies back from Oregon; and a statement by Gallagher to a Mr. Peterson after the accident — “Mr. Peterson, don’t be concerned about liability.. That is covered.” All of these matters, mostly after the accident, plaintiff reasons are consistent with an ostensible agency and are, in the light most favorable to her, facts proving an ostensible agency.

However heretofore, we set out a brief summary of provisions pertaining to agency. There we noted that where the principal, intentionally or by want of ordinary care, causes, or allows a third person to believe another to be his agent who> is not really employed by him raises a question of agency.. Dow, Inc. is not a party. Everyone knew Dow, Inc. owned' the aircraft. The deceased, Heck, has not been shown, in any manner, to have relied on pilot Deiehel’s supposed agency from! Gillis Aviation. Heck here is the third person. There simply] is no evidence to show whether or not he relied on, in any man-1 ner, an agency of Deichel. As previously noted, the burden ofj proving agency must be borne by the party who asserts Hamilton v. Lion Head Ski Lift, Inc., 139 Mont. 335, 363 P.2d 716.

Prior to the departure of the flight there is no evidencj that Gallagher, representing Gillis Aviation, did anything create a belief in the mind of Heck that pilot Deichel v Gillis Aviation’s agent for that flight. As far as this recor is concerned, there is no basis for the application of the rul| of ostensible agency. Ostensible agency necessarily would predicated upon an estoppel. The estoppel would arise agairl the principal for the benefit of the parties who have des with the principal prior to changing their position in reliaii upon the representations by the principal. As stated heretofol there simply is no evidence of any representation. StatemeJ and actions by Gallagher after departure of the flight do supply the evidence of ostensible agency. We are not concert Ibere with “ratification” because there was no representation by the principal nor any evidence of reliance by the third party, Heck. See Searle v. Great Northern Railway Company, 189 F.Supp. 423, for requirement of representation or “holding out” by the alleged principal. Also see: Hartt v. Jahn, 59 Mont. 173, 182, 196 P. 153; Elkins v. Husky Oil Co., 153 Mont. 159, 455 P.2d 329.

To the foregoing discussion we add that to further develop factual testimony only amounts to an attempt to prove the negative. There was no actual agency relationship shown. There was no implied agency shown because there is no proof that pilot Deichel believed he had such agency authority. There is no proof of ostensible agency. Thus, there is no genuine issue ■of material fact- and the summary judgment was properly .granted under Rule 56(e), M.R.Civ.P.

Accordingly, the judgment is affirmed.

MR. CHIEF JUSTICE JAMES T. HARRISON, and MR. ■JUSTICES DALY, HASWELL, and JOHN C. HARRISON, «concur.  