*1 whiсh 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 werе 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 оf 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. Musilеk 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 appelleе 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 cаrs, 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 alsо 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 standаrds, 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 thеir 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 Fаrm 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. pеrtains 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.
imputatiоn
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
clаims
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 rеcovered
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
Thе
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 plаintiff
[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
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
аre 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.
That know no evidence in this case or We But, al- Automated was never Autоmated. 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. Automatеd 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.
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