Wetering v. Eisele

prevent homicide does not the assertion of only necessary cide. It is that the defend- reasonably goes believed that he was self-defense but to the ant reasonableness gave some act which danger because of defendant’s belief that he was in immi- danger. See appearance imminent danger. nent State, my dissent in 682 P.2d Jahnke

991, and cases cited therein. State

Radon, 383, 177, Wyo. 19 P.2d deceased,

(1933), package with a in his gloves, which contained two started

hand defendant,

walking toward the and the tes-

timony was that Radon believed that the

package gun. Acting upon contained a

belief, he shot and killed the victim. Lloyd WETERING, Darel Executor of Thus—there was neither a threat of as- Ray Wetering, the Estate of Daniel sault, assault, danger an actual nor actual Deceased, (Plaintiff), Appellant harm, yet of imminent this court reversed giving jury to the instructions which EISELE, part: Sylvia said relevant R. District School County, Wyoming, No. 1 of Laramie “ jury ‘The is instructed that in order to (De severally, jointly Appellees ground excuse the defendant on the fendants). self-defense, there must be some act or declaration at the killing time of the No. 83-119. on the the deceased Wyoming. Supreme Court of to kill great him or to do him bodily ” added), (emphasis harm’ 19 P.2d at 15, June 1984. 181,

and an instruction which said: “ danger ‘The which will justify the kill-

ing being actual, of a human must be

present urgent, appear to a rea- actual, present

sonable mind to be ” urgent.’ 19 P.2d at 181. that,

We held that it was error to direct

order jury for the to resolve the reason- appear

ableness issue it must first that the

victim tried “to kill him great or to do him

bodily harm,” and that danger to the

defendant “must actual.”

Thus, supports where the evidence theory apparent

self-defense danger, right

an instruction which limits the danger

self-defense to actual or real alone Furthermore, right

is erroneous. reasonably

self-defense ends when it

appears danger to the accused that the has Goettina, Wyo.

ceased. State v.

158 P.2d state- object

I to the aforementioned majority opinion contained in the

ments of alternatives the existence

because Ross, Chey- & A. Ross of Ross

Vincent enne, appellant. Williams, Guy, White A.

Ward White appellees. Argeris, Cheyenne, for & THOMAS, ROONEY, C.J, and Before CARDINE, BROWN, ROSE, JJ. THOMAS, Justice. ap presented by this question

The sole and the sisters of whether a brother peal is participate in a can a decedent establish their action and whether damages. must determine We in- of a decedent and sisters brothers phrase “every person within the eluded brother four sisters decedent brought” whose benefit action is among for whose benefit the (Cum.Supp. found brought. action was A motion was filed 1983). court, reluc defendants, The district with some here, appellees to strike tance, they held that were not included portions complaint pur- opinion dictum this because of ported to include the brother and Bennett, Wyo., v. among persons those sisters whose ben- Saffels the We reverse the decision of dis support efit the action was brought. court, trict hold that and and brothers sis motion, placed upon the reliance was our ters of a can be included within decedent Bennett, decision The Saffels pertinent statutory phrase when a the granted district court the motion to strike. wrongful action is and the judge his decision letter the said: circumstances include them within class “The defendant’s motion to strike from may persons share in the intestate who complaint 2 of the paragraph subpar- distribution of the decedent’s estate. (c), (d), (e), (f), agraphs (g), and and the appeal

To issue in resolve the this we exception language ‘with the of Cather- whether, despite must decide what this Hintz, sister, Ann ine a who resides at Bennett, supra, court said N.W., Jacolyn Rapids, Drive Cedar Saffels surviving brothers and sisters be in- Iowa,’ granted grounds on the and for among persons cluded ben- those for whose the reasons that the Court feels com- brought. efit a death action is If hold, hold, pelled to and that does broth- so, they opportunity have establish an persons ers and sisters are not entitled to their damages accordance damages Wyoming recover under § l-38-102(c), (Cum.Supp. with Wrongful Death Statute. The Court be- 1983). vigorously The appellant contends compelled that by lieves this result is legislature that the did not to fore- intend Supreme Opinion Court’s Saffels being close such from included (Wyo.1981). 630 P.2d 505 Were among for whose benefit case, for this seems to not com- ap- brought. death action is pel holding, this would be in- this Court pellees point to the to construe clined the amendment of the interpretation of Bennett and their Wyoming Statutes to hold the dele- statutory history relating subject, to this ‘brother, words, sister, of the tion or urge propriety and of the district child or children of a child’ re- deceased court’s decision. holding to that lated section of the debt deceased be satisfied out complex. The material facts are not judgment, of the but did Ray Wetering Daniel was a result killed as not restrict those entitled to in- injuries sustained a between collision herit as heirs at law a decedent from motorcycle his a He school bus. was any, proving damages, upon their if He married and had no children. was * * * ” wrongful death of the decedent. father, mother, survived four sisters father, Lloyd and a brother. His Darel An consistent the district order with court’s Wetering, appointed was administrator of entered, letter decision was but the order 2-1-301(a) (xxviii), his estate. Section W.S. specifically provided: * “ * * Rev.), (July adminis identifies an 54(b) pursuant to Rule “personal representative.” trator as a Wyoming Rules of Procedure that Civil administrator, here, a appellant com- herein has made determina- Court against reason for just delay menced a death action tion that there is no hereby expressly the school and the district directs that as to bus driver school authority under the W.S. the claim of the ‘brothers and sisters’ herein, complaint final Order (Cum.Supp.1983). In his this Order is a hereby Judgment included the di- administrator Court Cf., pleadings. on the Rules entry made accordance rects 12(c), 12(b)(6) Wright W.R.C.P. In 5 herewith.” Miller, Federal Practice and Procedure admin- appeal A taken timely was § 1380, pp. (1969), proposition 782-783 The case order. istrator from in this way: is addressed appeal presented upon to us involves * “ * * problem the district identical addressed motion to is neither an [A strike] addition, must we address procure court. proper way nor a authorized jurisdiction of question of all a com the dismissal a appeal justify proceeding decide counterclaim, or a or to plaint, strike on its merits. as is true in con affidavits. other But texts, given the technical name to a mo jurisdiction our We are concerned about challenging pleading a tion is of little appeal on the merits dispose of this importance prejudice hardly inasmuch as purport it is taken from order because treating can result from a motion that ing a motion to strike. grant part to inaccurately lack the Ordinarily such an order would has been denominated a mo appeal. requisite finality purposes of for to as a to tion strike motion dismiss * n ” * (1948), and 1 422 See Annotation A.L.R.2d complaint. do an obli there cited. We have cases W.R.C.P., 12(f), identical Rule Rule is to jurisdic gation determine whether the to 12(f), F.R.C.P., and federal authorities in in properly has been tion of this court terpreting highly persuasive. rule are University voked. Board Trustees TWP, Inc., Wyo., 656 P.2d Robertson v. 410 Bell, Wyo., 662 P.2d Wyoming v. (1983). 547 In the federal courts motions Hoyt, Wyo., 648 and Harrington strike, which, granted, when have the to provides P.2d The usual rule 556 dismissing all an part effect of assert judgments final and orders claim, brought ed are treated as under appealable. Company, Inc. v. 2-H Ranch 12(b)(6), F.R.C.P., which authorizes Rule (1983). “A Simmons, Wyo., 658 part complaint all or of a the dismissal of (1) affecting a order final is: order allege upon failure to a claim which for action, right when such substantial in an granted. Asay can v. Hallmark relief be and order effect determines the action Cards, (8th Cir.1979); Inc., F.2d 692 1.05, Rule prevents judgment.” a W.R. (9th Carreras, 467 F.2d 214 Bertucelli v. A.P. Cir.1972); Union Insurance Commercial 12(f), W.R.C.P., for provides Rule Company Upjohn Company, to strike follows: motions as (W.D.La.1976); F.Supp. Fred Cash v. “(f) Upon to motion Motion Inc., (E.D. Company, 57 F.R.D. 71 strike. — erick & a responding to by party made a before Miller, Wis.1972); Wright supra, and 5 and or, responsive pleading if pleading at n. 82. This court has af rules, permitted by motion upon these claim a striking firmed order a from by party days a within after made a complaint, treating in effect the order as pleading upon upon service of the him or allege upon a claim dismissal for failure time, at own initiative granted. relief be Parsons v. which could any plead may order from court stricken Roussalis, Wyo., 488 See any re ing any insufficient defense or Nickel, Wyo., 663 P.2d 168 Lafferty v. also immaterial, dundant, impertinent, or (motion (1983) summary judgment for with scandalous matter.” treated a mo supporting materials as out specif- a to strike is purpose of motion 12(b)(6) for under Rule or as tion dismissal ic, to obtain it should not be invoked pleadings motion for on the a complaint a dismissal all or 12(c)). under Rule upon claim for failure to state a ruled case the trial court it is not may granted.

relief be Further are not for brothers and sisters a for a motion intended be substitute “(c) under jury, beneficiaries our death act. may court or as the case be, in every We conclude that the order trial may such action award such damages, pecuniary final exemplary, was a order it did have because as be just. Every the effect of shall deemed fair and foreclosing brother person for benefit participation sisters from whose such action is brought may any recovery prove from dam- from death as ages, or jury a matter law. the court award While the person damages such personal representative claim is that amount of held entitled, fiduciary person which it considers such capacity a for those including damages probable brought, whose benefit it does loss of appear companionship, society future separate that each of them has a com- fort. proceeding pro stake because § 1-38-102(c), (Cum.

visions of “(d) Every such action shall com- Supp.1983), providing jury that the court or (2) years menced within two after award each such the amount person.” death of the deceased damages per to which it considers the Drilling Company, Jordan v. Delta son entitled. this case order of the Wyo., 541 P.2d 78 A.L.R.3d 1215 adversely district court determined the Bennett, the court rights of the brother and sisters to question. ap- addressed the same It now jury, though awards even the cause pears that the court overwrote in both in- personal repre stances, impression and created of its sentative continued for the benefit of oth interpretation of this statute which not ers. The properly trial court determined acceptable majority to a of the The court. 54(b), W.R.C.P., under Rule that the effect holdings respective of those are satis- cases of complete its order was to make a and factory concept under a strict of ratio deci- disposition final damages of the claims for Drilling v. Jordan Com- dendi. parties of some not all but of the for pany, supra, the court held that an ac- brought, benefit of whom action was knowledged parents child whose had not and there was no of in abuse discretion respective married could her dam- recover certifying just that there no was reason ages wrongful for the death her father. of delay providing entry for the of a final however, opinion, in The dictum that indi- judgment. See v. Bethesda Foun Griffin persons partici- that cated who could dation, v. (1980); Butts Wyo., 609 P.2d 459 pate in such a death action consti- Gierse, Wyo., (1978); 573 P.2d 1365 and 10 v. a very category. tuted broad Saffels Wright, King, Miller & Federal Practice Bennett, supra, court held that an ex- § (1983). and Procedure 2655 alimony wife who was to for a entitled jurisdiction that period years category

Satisfied we do have to of not within the was merits, appeal consider this turn persons on its we of benefit such an action whose argued par- to brought. the substantive issue The dictum that could be in case They agree ties. con- that the must indicated that those for whose ben- § 1-38-102, strue brought of W.S. efit action be limit- was would children, (Cum.Supp.1983), provides: spouses, parents. 1977 which ed to While purport to deal the issue both cases with “(a) Every brought shall be here neither is determinative. personal repre- in the name of the person. sentative of the deceased disparity opinions this The Bennett, supra, “(b) wife, v. v. husband, a Jordan If the deceased left Saffels Delta mother, child, Drilling Company, supra, manifests father debt of may justifies interpretation ambiguity deceased be satisfied out any interpreting obtained of the statute. the statute any brought provisions legislative intent under we must ascertain respect of this section. with those who to 1060 recovery brought to be do know that from a in a We

benefit possible representative, we personal To the extent death action. the name plain language § must do this from l-38-102(a), (Cum.Supp.1983). W.S.1977 resorting to to rules prior statute “every person for that We also know re permitted are not to construction. We brought action is benefit such whose supply provi omitted the statute or write § damages.” 1 — 38— prove interpretation. guise sions under 102(d), (Cum.Supp.1983). In addi W.S.1977 Voss, Wyo., 550 Adoption Matter provi know at one time these tion we Lo v. (1976); Braun, Wyo., Sasso P.2d 481 code, probate were included sions Yoder, v. (1963); Ward 630 386 P.2d although subsequently renumbered 371, reh. denied 357 P.2d Wyo., 355 P.2d accomplished the renum legislation which required give to effect 180 We are bering any purpose did manifest every part of a statute. Haddenham v. provisions probate from the eliminate these Laramie, Wyo., 648 P.2d 551 City of Bennett, v. code. See Saffels Herrera, Wyo., v. (1982); DeHerrera Bennett, supra, v. upon Relying (1977). We also must consider P.2d 479 Saffels appellees is that the contention dealing with the same sub other statutes Kamp Kamp, Wyo., benefit the action is for whose ject matter. Department Revenue (1982); P.2d reference must be ascertained Irvine, and Taxation v. Wyo., 589 P.2d 1-38-102(b), (Cum.Supp. Stores, Safeway (1979); Johnson 1983). language in appellees The note the Inc., In re (1977); Wyo., Bennett, effect X, Wyo., Child Adoption Female “brother, sister, chil or child or the words Kinne, Kuntz v. Wyo., a child” were deleted dren of deceased Woolley State 395 P.2d 286 (b) in committee of the act from subsection Commission, Wyo., 387 P.2d 667 Highway adopted was 1973. when the statute history a is that manifests argument statute, recovery to limit to those legislative intent (Cum.Supp.1983), provides as fol- W.S.1977 in subsection to expressly mentioned that lows: argument This of all others. the exclusion person death of a is “Whenever the law were exclude other heirs at who would act, by wrongful neglect or de- caused prior wrongful for death to recover allowed the would have entitled fault as the to 1973 amendment of statute. the injured to party to maintain action W.S.1957; and Tuttle v. 1-1066, Section en- damages if death had not recover 524, Short, Wyo. 288 P. 70 A.L.R. 106 sued, person who have the would been not if death had ensued liable liable the court Appellant prefers the view of damages, though for the an action even Drilling Jordan v. as articulated circumstances death was caused under He Company, supra, for obvious reasons. as to in the first amount in law murder the purpose of contends that the manifest manslaughter. If degree, or or second permit individual amendment was to dies, action be the the liable prove respective damages persons to their brought against the or adminis- executor estate, receive, in distribution of the and to If of his he left estate trator estate. judge to them awarded the amount Wyoming, the of within state of a pro than a rata share jury or rather upon appli- may appoint administrator In prior provided. lump sum as the statute

cation.” appellant, of making argument persons identify statute does not course, urges of 1-38- purpose that on of death behalf whom not 102(b), (Cum.Supp.1983), was aspect brought. That of be for whose the class of to limit was deleted 1973. See statute to brought, simply but benefit the action paid allow of decedent to be out debts it must have applica- assumed the proceeds judgments of the of tion of providing the statute for intestate spouses, parents. other or than children descent and providing distribution. that no debt of the deceased could be satisfied legislature adopts When a stat proceeds out of the any judgment of if he presumed ute it is to have so with done full husband, wife, child, left a father or moth- knowledge the existing of state of law with er, legislature had to assume other the subject reference to matter of the stat judgments be out of would obtained which Booth, ute. 601 P.2d Wyo., Brittain the debts of the decedent could be satis- v. Board White Land Commis of only proper fied. way to effectuate sioners, Wyo., 595 P.2d 76 and Mat that result is treat the Voss, supra. ter Adoption In this of of judgment being subject as to administra- latter said: case we “ * n * part probate estate, tion as but with presumed All statutes are to be special rules as distribution. legislature enacted with full knowledge existing state of law is clearly This a different result with reference thereto and statutes are than pertained prior which to 1973 in be in harmony therefore to construed in a death law, existing part with the as of an action did not become a of the dece overall uniform system jurispru dent’s estate and was not subject to debts dence, and their effect meaning and is to Herrera, administration. DeHerrera v. connection, be determined supra; Short, supra. Tuttle We constitution, with the common law and are, however, required to construe statutes but also with reference to the decisions n n ” so as force give !' to all effect of the courts. 550 P.2d at 486. by the legislature used so that no noted, prior As we have to the 1973 part superfluous of it be or inopera will amendment the statute stated that the stat- Laramie, tive. v. City Haddenham su providing personal ute distribution pra; and Board Equalization State estates dying intestate should Newspapers, Inc., Wyo., Cheyenne purposes invoked for We further must assume Short, act. Tuttle v. legislature did not intend futile Wyo. at we observed that statutes like acts and that its amendment the statute patterned Campbell’s ours were after Lord change existing indicated some law Act, they give rise to a new cause of Herrera, was intended. DeHerrera v. su personal representative pra; Delta Drilling Company, Jordan v. the benefit certain living relatives. The supra; Kosmicki, Wyo., re cause of is not related to cause (1970). 818 of action held the decedent at the time of his death. See also v. Wienbarg, Mull light of this rationale we hold Wyo. 410, (1949); 212 66 Colise- § 1-38-102(c), adopting in W.S.1977 Hester, 298, Wyo. um v. Motor 3 Co. (Cum.Supp.1983), legislature did not in P.2d Massion v. Mt. Sinai tend change for whose bene 297, Wyo. Congregation, 276 P. 930 fit an action in death could be adoption maintained. Prior to the Campbell’s statute in heirs at

This well be Lord Act decedent’s law intestacy dealing. with which are with the statutes we v. Ben- accordance Saffels nett, Campbell wrong Whether were the of a Lord intended beneficiaries 1-1066, W.S.1957; would is ful recognize as such debatable. death action. Section satisfied, however, Hackney, supra; Hagger We are when the v. Booth v. Muir 280, legislature dropped ty, Wyo. from the 314 P.2d 948 Coli Hester, supra, death act in 1973 the seum 3 P.2d at identification Motor Co. 112; Short, supra. for whose benefit the action was Since no Tuttle ROONEY, Justice, dissenting, with adjusting effect of Chief has the provision which Justice, statute, BROWN, joins. found whom that rule can be whose bene every reference proper holding I dissent. The and the brought must continue to fit such is reasoning better on merit issue of this pro intestacy provisions of invoke is set forth in Jordan v. Drill case provision in this applicable bate code. 39, ing Company, Wyo., 541 78 A.L. § 2-4-101, W.S.1977 is found instance (1975), R.3d as follows: (Cum.Supp.1983), Wyo., I would not 630 P.2d 505 enumerated, “(c) Except in cases above determine overrule those cases and would any intestate shall descend the estate of case on basis of the the issue this distributed as follows: and be precedent reasoning in them. contained

I affirm. would children, “(ii) nor their If there are father, mother,

descendents, then to sisters, to the descen-

brothers who are

dents of brothers sisters collectively taking

dead, the descendents parents their would have share which equal living, parts.” if

taken hold that

We now the action is for whose benefit provision of 2-4- quoted in the identified The BOARD OF COUNTY COMMIS SIONERS, COUNTY, Wy (Cum.Supp.1983). This does W.S.1977 ALBANY (Defendant), surviving brother and sisters oming, Appellant include the did not this instance because decedent surviving. We leave a wife or children DEVELOPMENT COMPA FEDERER death action hold that the further (Plaintiff). NY, Appellee personal representa brought by

now is capacity as administrator of the tive in his No. 83-233. instance the decedent’s estate. subject payment of

judgment Wyoming. Supreme Court of specific provisions debts because of June 1984. § 1-38-102(b), (Cum.Supp.1983), W.S.1977 had left no father and but if the decedent proceeds judg

mother satisfy

ment debts of could be utilized further hold that distri

the decedent. We

bution of § 1-38-102(c), and not

controlled (Cum.Supp.1983), be specific govern must over the

cause the these conclu

general. To the extent that perceived being

sions as inconsistent language in either

with Jordan supra, and

Drilling Company, disap

proved. judgment of district court for fur-

reversed and the case remanded this opin-

ther consistent with proceedings

ion.

Case Details

Case Name: Wetering v. Eisele

Court Name: Wyoming Supreme Court

Date Published: Jun 15, 1984

Citation: 682 P.2d 1055

Docket Number: 83-119

Court Abbreviation: Wyo.