*1 operate injuries arising it is liable for from the latters’ ‘negligence’ herein, as that term is defined but that he is not injuries arising liable for from the driver’s willful misconduct (cid:127) liability or intoxication. alsoWe conclude that under sec- tion 14134 of the Vehicle Act was limited to acts of the arising owner or driver from the intoxication or willful mis- may be, conduct the owner or driver as the case and that merely permits car, owner who another to drive his exists, where no other relation is not liable under either injuries guest arising statute for to a from intoxication or willful misconduct of the driver.” quoted
The instruction above is in the It alternative. jury driving instructs the that if find that defendant was plaintiff’s injury the car and that was due to his willful and plaintiff may wanton misconduct the recover. On the other jury jury hand the is also instructed in effect that if the driving should find that defendant the car but being injuries Schanck, that it was plaintiff driven and if the were caused the willful and wanton misconduct Schanck, defendant is liable. Since our statutes do not impose upon responsibiltiy defendant for willful and wanton Schanck, misconduct of the above instruction was erroneous my opinion judgment and in should be reversed. APPLICATION OF HABECK AND MC GUIRE
(69 353) N. W.2d (File Opinion 28, 1955) No. 9470. filed March *4 Mitchell, Fuller, Whiting, Lynn Freiberg, Morgan & & City, Appellants. Rapid for City, Rapid &'Morrison, Denu, Richard B. Hendricksen Respondents. for proceeding corpus
ROBERTS, This is J. a habeas Pennington County in the Circuit Court ob- instituted custody aged children, six, tain the of the three seven and nine, husband, former Muriel Habeck and her Orville proceeding Habeck. was commenced the mother and paternal grandmother, B. Mrs. From Charles McGuire. judgment awarding custody children of the Frank and City, Margaret Rapid applicants Dakota, Wolff, South have appealed. for a divorce action
Muriel Habeck commenced an County, against District Court of Cass Habeck in the Orville duly 14, 1951, enter- decree was North Dakota. On March granting plaintiff a divorce award- ed in that court to the custody 10, ing On December to her of their three children. action, 1952, motion defendant in the divorce on person finding proper not a fit and court that the mother was their to have the care and control of the children awarded 1953, On June Muriel Habeck the father. application made insofar as it for modification of decree support minor related to the children. proceeding for modi- of an order to cause in the Service show Chamberlain, fication was had on defendant at Dakota. South present hearing represented. He was not at the and was special appearance pur- However, his counsel filed a for the pose objecting jurisdiction. July 23, 1953, to the court’s On awarding custody the court modified the divorce decree grandmother, paternal the children to the Mrs. B. Charles residing Fargo, McGuire, North Dakota. 9, 1953,
On October Mrs. Habeck instituted an action in Douglas County, against Dakota, the Circuit Court of South former her husband for the enforcement of the Da- North awarding custody paternal grandmother kota decree enjoining and obtained an order the removal of the children jurisdiction from the of the court. Defendant father there- upon invalidity alleging filed an answer de- modified July cross-complaint praying 23, 1953, cree and also a permit that the court of ed remain the care Margaret cross-complaint Frank Wolff. The was bas- the contentions that Mrs. McGuire to whom proper person had been awarded was not a fit and to have having past Wolffs, and that the for the nine months having had the care and control of the children and institu- proceedings adoption, provide ted for their would them with a .normal home life. The of the Wolffs to inter- *5 vene, ground having denied on the that the same been timely. made after trial was not The court heard the evi- expressly and found that Mrs. dence McGuire a fit and custody. proper person to have The court further found disprove findings no that evidence was offered to the of the change in cir- a had been there Dakota court that North entry in following decree modified the the of cumstances recognition order- gave and such decree full that case and Margaret by and Frank be the children surrendered ed that they placed de- father and Wolff whose care livered into the were in custody of Mrs. McGuire. corpus filed in of habeas for the writ pro- proceeding 23, 1954, forth sets on March
instant Douglas ceedings of in the Circuit and decree Court establishing right of of Mrs. McGuire illegality alleges Writ of restraint. of their and children corpus Frank Mar- and and served was issued habeas garet Although filed, re- evidence was return was Wolff. no parties. respective The court of claims as to the ceived years of woman B. McGuire is a found that “Mrs. Charles adequate age, good qualities financial and character of placed property”; that when children means and “in- of 1953 their condition in March the care Wolffs discipline, adequate physical previous care, a lack dicated respondents guidance”; training, supervision and that the adequate good qualities character, persons “of are good “providing property” and are means and financial home training raising, properly and are for the said three children educating good and are them to become citizens training providing good for them.” The court Christian of the children that the best interest and welfare concluded with the Wolffs and demand that remain to them. awarded (1) Appellants without that the trial court was contend rights authority proceed to a determination of the (2) only ques- respondents return; absence of a legal- proceeding was the the court the instant tion before ity inas- of the restraint had determined their best interest and welfare been much as Douglas adjudicated Court Circuit and their (3) County, jurisdiction; that as a court concurrent adversely persons, grandparent and third claim- between grandparent pre- ing children, is entitled ference. *6 habeas for of purpose
The of an writ ceases to is to it corpus secure the issuance of the writ and re requires function when the issued. The writ writ has allegations may by turn and it by controverted denial or of other first and facts. 37.5504. The return is the SDC in a civil principal pleading corresponds complaint to C.J.S., should Corpus, action. 39 88. The Habeas § return, in have filed a the irregularity pleadings but the in substantial proceedings regard this has not affected the rights We have concluded to treat the record parties. though setting as a return to the writ had filed forth been the claims that the award the of the children of parties between decrees was not prior binding upon thereto, respondents, parties that the best in terest and required welfare that their care and control be continued in the respondents.
The North Dakota had jurisdiction court divorce action both and of the children of the parties marriage. They were all domiciled and present that state when the action was commenced defendant hus band was represented jurisdic therein counsel. Where tion, grant to a divorce and award of the minor child attaches, ren once marriage jurisdic tion, state, under a statute in that a continuing is one and may modify the court vacate or a decree with reference to custody as existing may conditions demand. See Hedman Hedman, N.D., 62 N.W.2d and cases cited. The re moval children from the state father whom they were awarded did not deprive District Court of jurisdiction Cass exercise reserved and con Am.Jur., tinuing power their regarding custody. 17 Divorce 686; Separation, Annotation 9 434. A.L.R.2d § filed special appearance specified the father grounds no objection jurisdiction for his of the court. Insofar as it record, from father appears retained his domicile in North Dakota. In case of separation, a divorce or the domi cile a minor child parent whose it legally has been awarded. The children were residing with arrangement under an between them Wolffs and the father. Their in legal effect continued in the father changed being *7 was not and such- the case their domicile modification was that of the father at the time of the grandmoth awarding paternal divorce decree May 528, 840, L.Ed. Anderson, 97 er. v. 345 U.S. 73 S.Ct. by respondents support 1221, cited of the contention distinguish state, the modified decree is ineffective in this is able. There a instituted a suit for a divorce and father delivery only process upon service of the mother was the copy of her in another state wherein she was domiciled petition. appear The mother entered no of summons ance and took no
part proceeding. in the Because of the personal service, absence of insofar it decree awarded of their the father not en children to was recognition. titled to extra-territorial para It is true as contend that the controlling concerning mount issue in contest the cust ody of minor children is their best interest and welfare. Tompkins Dakota, v. Lutheran Welfare of South Soc. 74 S.D. Sweeney 286, 99; Joneson, 213, 52 v. 63 N.W.2d 75 S.D. settled, however, N.W.2d 249. It is well has heard evidence with reference to the that after a court of minor question jurisdiction children and ruled again inquire court cannot other facts be invoked to into same existing prior at the time or to the former decree. change The rule is that there must be a of circumstances arising entry justify after of the former decree to a modifica Matthews, 115, tion. Matthews v. 71 22 S.D. N.W.2d 27. Un comity prevailing among der the doctrine the states the finality applies; provisions rule of same of a divorce custody, awarding except decree in another state as fraud jurisdiction may validity, or want of affect their are to be given existing full under effect the circumstances at the entry time of the of the decree. See annotations in 20 815; 441; A.L.R. 1299; 72 A.L.R. 116 A.L.R. 160 A.L.R. Douglas County 400. The Circuit Court of indicated its findings up that as between father and mother the facts on which the North Dakota court based its modified decree awarding custody adjudicata to Mrs. McGuire were res properly change concluded that in the absence of a of cir-
543 affecting decree such of the children cumstances welfare this state. entitled to full faith and credit habeas of a writ for issuance
The basis ordinarily corpus illegal Anderson rel. ex detention. State kinds two Jameson, 118. There are 219 N.W. S.D. involving corpus one is di infants. writs habeas freeing from unlawful restraint rected toward an infant equity powers liberty his and the other is the exercise person C.J.S., Habeas infant. of a Corpus, over the of an court put ques take, § 41. In the view we we aside authority inquire into court had tions whether the the below children and best interest and welfare of three *8 only juris properly the whether the issue before court whose of diction was invoked to enforce a decree of a court con legality jurisdiction of current of restraint the by respondents. children Even if it be assumed rights adjudicated respondents, any they have, of if were not by Douglas of and if custody decree of the Circuit Court equitable powers to determine court below required as the of best interest and welfare the children proof conclude there invoked we was no such awarding custody as would authorize to the- children respondents.
Respondents
not claim that
obtained
do
legal
permanent custody
by adoption,
of
children
guardianship
par
or otherwise. Nor is this a case where a
person
long
ent has left a
or
child
a relative
other
for a
period
custody.
of time and then seeks to recover
See Nan
Nannestad,
241,
nestad v.
it
44 S.D.
ined promise greater comfort, education the better Kropp People advantages. v. greater ex rel. material parte Kirschner, Shepsky, 801; 465, Ex 113 N.E.2d 305 N.Y. 609, Knobel, Mo. 327 737; Inst. v. N.J.Ch., 111 A. Child Sav. 920, A.L.R. 1068. 37 S.W.2d appellant, Mc Mrs. that the
The record shows designated legally In Guire, of the children. custodian is the re 7, should not C.J.S., Infants, said: “The court § it is 43 fuse by person who of a child for the an custody, applicant right legal is a fit if the has person.” mother is not shown We said that where have right person her she has a to be an unfit 128, superior Lottman, S.D. relative. Blow v. to a child Sweeney supra. Joneson, bur 825; same 59 N.W.2d nonparent apply proof take or where a would den of should legal from its custodian. In a minor withhold [327 924], Knobel Mo. 37 S.W.2d Child Inst. v. Sav. Supreme exact contention was considered Court placed their Missouri. minor had -been Two Saving Institute, a in the of the Child chari father table institution located Omaha, The children Nebraska. of Missouri under an were taken residents the State period. agreement adopt return trial A either to after a *9 adoption to one of the children was rendered in decree of Concerning Missouri without notice to the institute. the invalidity right custody notwithstanding adop the to (cid:127) pro proceeding tion the court said: “We start out with the custody position Saving legal Institute had the that the Child respondents at the time took them from the of these children happened anything deprive institute. Has since that time to custody? right legal Respond their the institute of its to during period, of their children the trial ents’ under agreement satisfactory adopt proved an to return them to the institute in event to them if
they prove to be un satisfactory return, or in event the institute demanded their right give respondents legal permanent did not custody * ** Respond of the children or either of them. although ents make the further contention that the decree of adoption void, child, the best interest of the which is the guiding proceedings character, authorized of this star in agree adoption. contention. We not to this decree * * do * respondents’ True, financial that the evidence shows ability support to be in the child their moral fitness unquestioned. But was trusted with its care Saving In was that the Child there no substantial evidence maintaining supporting child and was not stitute furnishing :|! * * training. proper it moral and intellectual financially mere able and The fact that morally good fit not en to furnish child a home would legal them title any showing to take child from the custodian without properly caring such custodian was not for the child.” . proceeding
There is no in the evidence instant upon that awarding custody circumstances which the modified decree changed to Mrs. have McGuire and there finding legal she, no custodian, is is either unsuitable contrary, or unfit to have of the children. On finding court below made a fitness. Under the law and the awarding evidence, there no was for re basis spondents. judgment reversed and cause remanded judgment directions render not inconsistent with this opinion.
LEEDOM, J., SICKEL, JJ., P. and SMITH and concur. RUDOLPH, J., dissents. (dissenting). Conceding judg-
RUDOLPH, J. that the Douglas County binding ment entered in was as between the binding upon wife, former husband it was not the Wolffs parties proceeding. who were not to that The court in Douglas County, upon furthermore, not did base its decree simply accepted best welfare of the children. That court North Dakota decree and determined that Mrs. McGuire was person. fita
The North Dakota decree based conditions *10 present proceeding. shown exist in the That decree premised upon finding that the father was in South Da- “living kota, had remarried-and was with -hiswife and seven moving house, in a trailer and that he was from 546
place place, for the best interests that it is not and defendant.” with the said be left said children entirely proceeding different con- circumstances In this cerning disclosed to the welfare these children my Pennington 'by It is view court the Wolffs. may changed proceeding these cir- consider in this court the welfare and in whose cumstances determine best served. the children will be occasions that announced on numerous This court has paramount of the child are the best interests and welfare Sweeney controlling importance. Joneson, v. 75 S.D. and 213, statutory 249, and therein Also that 63 N.W.2d cases cited. rights parental must are not but conclusive yield v. best interests and welfare. Nannestad child’s 541; Hedblom, Nannestad, 241, 44 183 Ashmore S.D. N.W. 513, Lottman, 64 S.D. 429. In Blow v. 75 S.D. 268 N.W. 128, 825, a it was held that interests of 59 N.W.2d the best by being parent served of a unless child are holding parent it is unfit this is shown is but based Certainly presumption pre- this conclusive to that effect. sumption especially others, not be a should extended grandmother years living old, with a second husband who Apart parent, therefore, is related child. from a not simply question it is right of fitness which determines custody, question always but is best interests and welfare of the child. year elapsed
More than between the time of the North awarding Dakota decree Guire, of the children to Mrs. Mc- proceeding commencement of this only Douglas County accepted above, this stated the court North Dakota decree determined the fitness of Mrs. Mc- The Arizona Court in the case of Dickason v. Guire. Sturda- van, 584, 587, 50 Ariz. P.2d stated I think what should entirely prior rule, be the is consistent with our which (cus- holdings. deciding question said, That “In court this child) tody always guided by of a the court should what it only to be the best interest of the can -believes child and this presented
be ascertained from the
when
mat-
facts
ter
heard. The fact that some other court or
a different
*11
judge
one,
court,
felt,
when
of the same
or even the same
any
question
presented
other
to it three or four weeks or
period
prior thereto,
de-
of time
that the child’s best interest
placed
person,
mean
one
does not
manded that it
with
be
necessarily
before
that this would
be true then. The court
light
which the matter is later heard must consider it in
surroundings
frequently
and,
of the child’s
then
since these
change,
guide
the child’s best
at that time is the
to a
interest
* * *
correct decision.
stare decisis nor
ad-
Neither
res
judicata
any
has
in
Roll
this situation.” See also
Roll,
143 Kan.
The court in was confronted with disclosing a state of facts far different than those that the among living children were a total of seven in a trailer stepmother moving house with their father and from place place unsavory under conditions. At the time of Pennington County trial in these children in had been approximately year. They'were Wolff the justed home for one ad- every respect proper to this home which was in They home which rear children. had love and af- fection kind. Before the Wolffs and returned this love and affection
coming they home had been Wolff first with the father, mother then with the both whom had been declared unfit the North Dakota having judicially dependent court. While not been declared neglected the children fact, such in nevertheless at time They were taken into the Wolff home. had really good meaning not known the of a home until it was provided by judge the Wolffs. The trial with the visited present, again children with Mrs. McGuire with the Wolffs present and then with the children when no one else was present. expressed preference staying The children appears the Wolffs. sought It that Mrs. McGuire had not only of these children of her own volition but after urging the mother. Nor did Mrs. McGuire institute the proceeding brought Douglas County. It was the mother who years that action. Mrs. McGuire is a woman 57 age only who has infrequently had the children in her home periods for ly person short of time—she is no doubt a fit moral- financially to have of children, but guidance she will need most children will time these *12 family years. are who her She has raised advanced well grown doubt as their own. No families of and have all family years rearing more pass would 'become of a second very anticipates probable it is now than she of a burden stay their matur- (cid:127)with her until these children could ity. appearing the record no' doubt
Other facts making it its determination the court considered to remain interests of these children for the best that the But above is sufficient disclose the Wolffs. trial court’s decision evidence. was based substantial respectfully I dissent. al., Appellant FALLS, et v. CLEVELAND
CITY OF SIOUX Respondents (70 62) W.2d N. 1955) April
(File Opinion No. 9445. filed