*1 which these children of environment type subjected time in their to at this finding proposed that a

life.” We note fit stating the father was a

of fact rejected court.

parent Lottman, supra, how-

language Blow v. it clear that a

ever, progency and its make parent’s finding regard to

specific custody necessary before

fitness child(ren) or her can be awarded

non-parental claimant. proceedings these remand allowing purpose finding fact specific to enter a of the fa-

regarding the fitness/unfitness court’s determi- parent. as a The trial

ther limited to the evidence necessarily

nation is already on this issue.

it has received

Reversed remanded. the Justices concur.

All DEHN; Patrick, Bruce Luann

Kenneth

formerly Carlisle; Luann known as Musilek,

Lyle Appellees, Plaintiffs Farm PROUTY and Automated

Robert

Supply Company, Defendants Appellants.

No. 13512.

Supreme Dakota. Court of South

Argued April 7, 1982. July

Decided 11, 1982.

Rehearing Aug. Denied

FACTS Although some inconsistencies exist among testimony of the various wit- nesses, the following is a brief summary of events relevant to this appeal. driving LuAnn Patrick was alone in her car on Rapid Interstate north from City Sturgis on March 1978. Weather con- Johnson, Jerry D. Johnson of Banks & poor ditions were as it was sleeting and Dehn; Rapid City, plaintiff appellee for and there was some ice on the road. Ms. Pat- Fitzgerald Harding John E. of Nelson & rick traveling testified she was at ap- Connelly, Rapid City, and Randal E. proximately m.p.h., but other witnesses brief. passed prior whom she accident be- Hanley Franklin J. Wallahan of Walla- & lieved that her speed considerably han, Rapid plaintiff for and City, appellee greater. coming After a over crest in the Patrick; Bangs, Allen G. Nelson McCul- road, car; Ms. Patrick lost control of her Simmons, len, Butler, Rapid & Foye City, spun times, around several hit guardrail on brief. road, and came rest resting diago- Costello, Porter, Hill, Donald A. Porter passing nally lane underneath an Nelson, Bushnell, Heisterkamp Rapid & overpass. Musilek; City, plaintiff appellee and Lyle driving Musilek was behind Ms. Pat- Porter, Costello, Hill,

James Nelson of S. rick and observed that lost control she Nelson, Heisterkamp Bushnell Ha- & and her down, car. Musilek slowed activated Shaw, Rapid City, rold E. on brief. flashers, and, emergency upon parallel- his Lynn, Jackson, Thomas G. Fritz of Shultz ing the Patrick car from the inside lane Lebrun, C., Rapid City, P. & defendant (testimony varied brought whether Musilek Co., appellant Supply Automated Farm complete his vehicle to a stop) asked Ms. Inc. alright; Patrick if she was she nodded af-

firmatively. HENDERSON, Justice. Following the Musilek car was a car driv He, too, en by Kenneth Dehn. saw that Ms.

ACTION positioned sideways Patrick’s car was in the Appellants Prouty1 Robert and Automat- stop road he slowed directly ed from almost behind Supply Company, appeal Farm the Musilek car. At judgment by which, time, pursu- eighteen this an wheeler semi truck verdict, ant made the following Prouty, employee driven Robert an adjudgments: appellee Kenneth Bruce Supply, Automated Farm crested hill $2,500 Dehn to recover appellants; overlooking approxi the scene which was Lyle $1,500 appellee Musilek to recover 6/io mately away. Prouty of mile appar appellee appellants; ently LuAnn Pat- made speed little effort to reduce the rick, Carlisle, $47,- attempted f/k/a LuAnn to recover truck drive around appellants. 500 from These slowing awards the other cars without down. The injuries cars, positioning however, stemmed from result- made such ing from multi-vehicular accident which impossible. maneuver Consequently, occurred March Prouty’s We affirm truck rear-ended the Dehn car judgment against Prouty and reverse and which turn struck the Musilek car. particularized remand as below. Prouty’s apparently truck also struck the appellate alleged any 1. Pursuant to this Court’s order of March filed brief nor has he 1982, Prouty party appel- justiciable was reinstated as a error the trial court. We find no not, Prouty. appeal. appellate regarding lant has him, (2) Ms. and/or under state car, testimony of although the Patrick standards, legal applicable twice she was struck indicates that Patrick Prouty truck. issue material genuine with the existed no impact prior regarding Prouty’s causation of fact physi- sustained serious Only Ms. Patrick totally rendering thus accident (chronic mus- the accident cal liable. *3 neck); the to injury the ligamentous cular upper by caused resulting pain and stiffness court arguments, on the trial Based these to ultimately her forced body movement claims contribution struck Automated’s as a beautician. up Dehn, Dehn, her career give and Musilek. against Patrick immediately dismissed Patrick and Musilek SUMMARY PROCEDURAL against another moved claims one their action commenced this Appellee par- Dehn realign trial court to themselves the Musilek, complaint against appellee filing a together. plaintiffs. They breathed ty Patrick, Prouty and appellants appellee realign- granted motion and the This was that said Supply alleging Automated Farm was the effectuated. Trial held on ment liable, jointly negligently were parties including proximate the damages, issue of sus- severally, injuries thereof, jury its and the returned cause By way to the accident. him due tained A damage awards. respective verdict of (to the affirma- separate answers include of the ramifications of refused instruction on negligence), contributory tive defense appeal. income tax surfaces on federal claims, claims of counterclaims and cross contribution, eventually filed all ISSUES respective placing into issue their pleadings negligence. proportionate liabilities and I. not Prouty, Automated and by refusing the court err to Did trial against each other since cross claim right its Supply allow Automated Farm dispute acting was was against litigate to claims of contribution Auto- capacity employee his within alleged joint the other tort-feasors? We the at the time of accident. mated it hold that did. respond to Prouty’s failure to Due requests produce interrogatories, written II. cooperation, total lack of was judgment a default instructing were struck and err in Did court not con- against him on all entered of federal the ramifications was A motion claims asserted. pertains tribution income tax as it “partial summary subsequently made for that it did award? hold not. (not damages) against to include judgment” responde- the doctrine of

Automated under DECISION granted superior. This motion was at (as imputing Prouty’s negligence thereby I. him) to judgment against

per default quarrel Automated does Automated. imputation Prouty’s trial de court’s During judgment it under doctrine of fault April Trial was set for Instead, respondeat superior. the thrust with the trial an in-camera conference Dehn, trial, is that after attorneys Automated’s contention morning judgment requested imputed Auto- trial court the default and Musilek Patrick it due Automated should have claims struck mated’s contribution be right its rights (1) having any allowed Automated to: they for contribution from one or more employee, Prouty, who claims greater than its parties regarding various rights un- the other maintained had no contribution held liable damage claims for which was entered der default morning misconduct of the or ruling operator court’s on the owner per pursuant guest second vehicle of trial. stat- ute, (repealed SDC 44.0362 by 1978 S.D. right contribution is of Sess.L., 1). is, ch. That since the § “The statutory origin South Dakota: brought deceased could not have suit among joint of contribution exists against the second guest driver due to the 15-8-12. tort-feasors.” SDCL Joint tort- statute, and there being no or indication persons feasors are defined as “two or more allegation of wilful and wanton misconduct jointly severally liable in or tort driver, by the second the defendants simi- or injury person property, whether same larly had no basis for contribution from the or not has been recovered second driver. This Court all or some of In them.” SDCL 15-8-11. disposed to affirming and, 598, 602, Degen Bayman, S.D. doing, so stated that “there can no con- we stated that injured person tribution where the has no *4 requires the to share “[contribution right of against action the third-party de- liability or ... appropri the burden [and is] fendant. right The is contribution a a liability ate where there is common derivative a right not new cause of among parties[.]” the 586, action.” Id. at 139 N.W.2d at trial, morning the On motion was 266, In Snyder, Olesen v. 249 N.W.2d 270 requesting made the trial court to rule that (S.D.1976), expounded upon this Court the rights Automated’s were limited those holding in Burmeister. based, rights Prouty. This motion was If plaintiff [representative of the de- alia, premise inter the that since a de- precluded from recovery be- ceased] previously fault had been issued guest statute, of the cause driver of against Prouty as to the [the acci- the vehicle in which the deceased was a dent, Automated, Prouty’s employer, had passenger] cannot be “liable in tort” for right par- contribution from the other injury, the and defendants motion, owner granting ties. In the trial [the and the driver of the second can- court stated: vehicle] not receive contribution from driver out, [the I have researched I all that struck If, however, of the first dece- vehicle]. pleadings of the Mr. and those dent is passenger found to be a rather that were struck of Mr. guest, than a a breach of duty the same were also struck of Automated Farm care, 20-9-1, of ordinary SDCL could Supply.... And under Burmeister vs. make driver of the first “lia- [the Youngstrom, the vehicle] action is derivative and ble in tort” and allow contribution to they therefore would have no defendants. contribution as it’s not new cause right. action but a derivative The refusal of this Court in Olesen 578, Burmeister allow contribution the Youngstrom, by Burmeister v. 81 S.D. defendants therein was based dic upon 139 N.W.2d 226 the wrongful involved a guest tates applied statute as resulting death action for particular those two-vehicular collision. The situations. We believe that defendants (the vehicle) legal posture owner the parties ap driver of one to this third-party complaint filed a are against peal sufficiently analogous not to those (in driver of the second vehicle in preclude which the shown Burmeister or Olesen to passenger) seeking seeking deceased was a contribu- Automated contribution tion. The trial court ruled alleged that the defend- the other tort-feasors. In case, not ants were entitled to the issue instant it was a default third-party against Prouty, of contribution because the preclusion not a statutory complaint statute, any allegation, negligence per guest not contain which indicate, nor did the evidence acci- rendered Automated liable. admis “[A]n by predicated dent was caused the wilful upon only oper- and wanton sion a default is 538 II. who particular party

ative default, not a code- and does bind makes impres- next consider an of first We liti- who and contests appears fendant in- following in this state. sion Am.Jur.2d, Judgments, 1194 47 § gation.” but, was proposed struction (1969). Automated, rejected erroneously contends court: reasoning approve are inclined to you when it award Supreme of Minnesota You are further instructed if Court cases, your will that, plaintiff damages, award negligence automobile ruled tax, subject you any not be income employee- of an contributory negligence fixing such consider taxes imputed to a faultless will driver your the amount of award. recovery as to bar employer-owner so Stokely- v. party. third Weber negligent on Norfolk & Western Automated relies 482, N.W.2d Gamp, 274 Minn. 144 Van 490, Liepelt, v. 444 Railway Company U.S. Abear, Weckerly 256 (1966); see v. 540 (1980) for its 100 S.Ct. 62 L.Ed.2d 689 (Minn.1977); v. 79 N.W.2d Smedsrud The Court Norfolk held contention. 330, 227 Brown, N.W.2d 303 Minn. regard court’s exclusion of a state evidence Oil, Onsgaard, Inc. v. (1975); Thomas ing income tax ramifications on (1974); Clay 215 N.W.2d 793 Minn. im earnings award and a decedent’s Northern, Inc., 296 County Burlington Norfolk, solely proper. dealt (1973); Pierson Minn. (Federal Liability law Employers’ federal *5 164, Edstrom, 712 174 N.W.2d v. 286 Minn. Act, to seq.) applied 45 51 et U.S.C.S. §§ Rent-A-Car, National (1970); cf. American wrongful gen death action has been 301, Ariz. 451 P.2d 882 McNally, 104 Inc. particular arising facts erally to (1969). 621 Spinosa, Estate of thereunder. See 1980). (1st majority F.2d 1154 Cir. su- respondeat that the doctrine Given nation, by this five-to-one nearly view in imputation negligence requires the perior ratio, is that income tax considerations Automated, Prouty this default from impressed upon jury. not be See prevent imputation should not judgment 2, 1393, (1959 & 4[a], 63 A.L.R.2d 5 §§ parties that proving other Automated Supp.1979). Case Service 1976 & Later unique Under the pari in delicto. stood Chicago, In Rouse v. Rock Island here, there was no fac- presented situation Company, F.2d 1180 Pacific Railroad 474 finding negligence tually based (8th 1973), pass court refused to Automated; Cir. rather, Prou- or either propriety jury regarding instructions via a default liability incurred ty state, consequences. income tax It did previously entered him however: “partial summary judgment.”2 mentioned liability accordingly imputed was

That know no evidence in this case or We But, al- Automated was never Automated. demonstrating that this empirical data its extent of the liabili- juries lowed determine in- general regularly or in jury enforcing ty being precluded due of a mis- crease awards because statutory right of contribution. We hold its belief that the state and federal taken oppor- through allowing governments share in the award that Furthermore, mitigate proportionate liability its if a caution- tunity to income taxes. tort-feasors, jury be alleged ary given instruction should vis-a-vis other increasing improperly dissuade it trial court erred. principles in that laid down Wilson v. Great indicate 2. The comments of 207, Railway Company, ruling denying 157 S.D. Automated the of con- Northern 83 its admittedly disputed only upon 19 and the was the default tribution based not accident, surrounding against Prouty this we hold that but that facts summary proper negligent this matter was not case a matter of law due to genuine judgment disposition. being See SDCL 15-6-56. fact. Under issue material

539 WOLLMAN, purposes, an award for income tax then Chief Justice (concurring in perhaps cautionary other part, dissenting part). instructions given should also be on other collateral I portion concur in that opinion conceivably matters which affect the which reverses the judgment in part and damages amount of awarded a jury. remands case for the determination of might example, For be instructed Automated’s claims for contribution. or decrease increase an award be- hold, however, I would cause one or both must pay attor- given court should have the requested in ney’s McWeeney fees in the action. See regarding struction the income tax conse York, v. New New Haven & Hartford R. quences of an damages award for per Co., (2d 1960). R. F.2d 37-38 Cir. injury. agree sonal I with the rationale set Regardless of the appropriateness of an forth in Ry. Norfolk & W. Liepelt, Co. v. instruction, income tax the cure for ex- 444 U.S. 100 S.Ct. 62 L.Ed.2d 689 usually cessive verdicts rests with the tri- (1980); Domeracki v. Humble Oil & Refin which, appropriate cases, al court Co., ing (3rd 443 F.2d 1971); Cir. powers should exercise its of remittitur. Dennis, 319, 438 Blanchfield v. Md. A.2d 1183-1184, Id. at n. 3. (1982). hold that income tax foreign matter to the award of authorized, I am to state that Justice a pertinent bearing is not joins in FOSHEIM part, concurrence in award thereof. An amount income in part. dissent might pro tax which become due on one’s spective earnings, example, is too con

jectural in fixing damages. to be considered

Interjecting an income per tax issue into a injury unduly

sonal lawsuit compli would of damages

cate award confusing *6 jury. repudiate minority

viewpoint align and ourselves with the authority.

more reasoned We further

agree with expressed by the concerns Rouse,

court in hold thus err by refusing Automated’s requested jury instruction. Dakota, STATE of South Plaintiff remaining issues raised by Automat- Appellee, ed are either rendered moot our decision or are without merit. Terry WIEDEMAN, respective damages

As amount of has Defendant determined, already Appellant. been we remand these proceedings purpose per- No. 13652. mitting them, is, contribution between to de- Supreme Court of South Dakota. pro termine the rata share of liability May Considered on Briefs 1982. through special interrogatory. part, part Affirmed in July reversed in Decided remanded. MORGAN,JJ.,

DUNN and concur.

WOLLMAN, J., FOSHEIM, J., C. part

concur in part. dissent in