Ball v. Ball, 2619

• Decision Date: 20 April 1954
• Docket Number: No. 2619,2619
• Citation: 269 P.2d 302,73 Wyo. 29
• Parties: BALL, v. BALL.
• Court: Wyoming Supreme Court

Page 302

269 P.2d 302

73 Wyo. 29

BALL, v. BALL.

No. 2619.

Supreme Court of Wyoming.

April 20, 1954.

John F. Raper and R. G. Diefenderfer, Sheridan, for appellant.

Henry A. Burgess and Wm. D. Redle, Sheridan, for respondent.

RINER, Justice.

This case presents by direct appeal proceedings an attack upon a judgment of the District Court of Sheridan County. The petition of the plaintiff, Calvin Jackson Ball, an unemancipated minor son and appellant here, was filed July 23, 1952, by his mother, Mabel Ball, as next friend, against his father, Frank Ball, as defendant and respondent in this court. That petition states in its first six paragraphs as follows:

'1.

'That the Plaintiff, Calvin Jackson Ball, herein, is a resident of Lodgegrass, County of Big Horn, State of Montana, and the son of the Defendant herein.

'2.

'That the Plaintiff herein is a minor, being less than Twenty-one (21) years of age, to-wit: nineteen (19) years of age; that this action is brought for and on his behalf by his next friend, Mabel B. Ball, his natural mother.

'3.

'That the Defendant herein was on the 13th day of April, A. D. 1952, the owner of a 1951 Piper PA18 Aircraft, Civil Aeronautics Administration Certificate No. N1622A and that said Defendant is a duly licensed aircraft pilot.

'4.

'That on the 13th day of April, A. D. 1952, the Defendant herein took as a passenger in said airplane, the Plaintiff, Calvin Jackson Ball, and took off from the airfield at Lodgegrass, Montana, and while piloting said aircraft took the same, together with this Plaintiff, to Hardin, Montana, a distance of about thirty (30) air miles; that upon the return of said aircraft, together with this said Plaintiff and the Defendant, to the airfield at Lodgegrass, Montana, the same crashed in the vicinity of the airfield at Lodgegrass, Montana.

'5.

'That said crash of Defendant's airplane was caused by the negligence of the Defendant in failing to have the gasoline tank of said aircraft full at the time of takeoff or with an adequate supply for the trip from Lodgegrass to Hardin, Montana, and return, with the result that the gasoline supply of said airplane became exhausted just before landing and the Defendant in making a forced emergency landing was further negligent in failing to make a proper dead engine approach to the airfield with the result that he came in too low and stalled the aircraft at a height too far from the ground causing the aircraft to crash with terrific impact on a wing and one wheel.

'6.

'That the Defendant's aircraft was totally demolished by said crash and this Plaintiff suffered severe physical injuries, consisting of shock, cuts on each leg, lacerations on left arm and about the legs, broken teeth, a fractured upper jaw, a severely cut lip, an ugly cut over the one eye, a sprained ankle; that as a result thereof, this Plaintiff was hospitalized for a period of one week in the Sheridan County Memorial Hospital at Sheridan, Wyoming.'

The remainder of plaintiff's pleading sets forth certain amounts alleged to be for expenses on account of medical, dental and hospital services; his suffering pain in consequence of such injuries, and also loss of compensation as a part time electrician, a detailed recital of his damages due to the injuries incurred because of the airplane crash aforesaid; these damages are claimed to be for the sum of $49,547. Paragraph 8 of the pleading sets out that defendant holds an aircraft policy of insurance obtained March 22, 1952, from an insurance agent in Sheridan, Wyoming; that demand has been made on the Insurance Company for plaintiff's damages and payment thereof has been refused. Plaintiff's petition concludes with a prayer for judgment against the said defendant for the sum last above mentioned. Attached to said pleading and made a part thereof is a copy of the Insurance policy as Exhibit A. The Insurance Company is not made a party to this action. It will be observed that there is no allegation of wilful or malicious tort, no allegation that the tort was committed in the course of plaintiff's business affairs and nothing appears that would show that the tort was occasioned other than by the son's being a guest of the father in his plane; apparently simply on the desire of the father to afford his son a pleasure ride in the conveyance.

It will be noted that the action in behalf of the son was filed in the office of the Clerk of the District Court of Sheridan County, Wyoming, on July 23, 1952. The summons addressed to the defendant was issued and served the same day in Sheridan, Wyoming. Relative to this matter of service of process it is clear that if the defendant had remained in Montana, process from the Wyoming court could not have been available to reach him. In respondent's brief it is said: 'The insurance company, by its contract must defend the case. In preparing its defense it would find its insured a hostile witness and hostile party, if the parent desires to aid his child. Fraud would be encouraged as when, as here, the father comes from Montana to the Sheridan County Sheriff's office to accept service of process, and then instead of co-operating with the insurance company's attorneys, promptly sues the company, utilizing his son's counsel in this suit, for payment of his son's claim. On the other hand, if the father co-operates willingly with his insurance carrier, strained family relations are a certainty.' These facts set out in respondent's brief, though they were stressed at the argument in open court here, were not denied. In this connection we may observe that the insurance policy contains this clause: 'The insured shall cooperate with the company and, upon the company's request, shall assist in the recovery of property insured hereunder either by means of replevin proceeding or otherwise, in effecting settlement, securing evidence, obtaining attendance of witnesses, and prosecuting suits to such an extent and in such a manner as is deemed desirable by the company * * *' (Italics already supplied).

To this petition the defendant interposed a general demurrer which being sustained and plaintiff having declined to plead further a judgment against him was duly entered reading: 'It is, therefore, hereby ordered, adjudged and decreed by the Court that the Plaintiff take nothing by his Petition filed herein, that said Petition be, and the same is, hereby dismissed, and that the Plaintiff pay the costs incurred herein, to which Judgment the Plaintiff excepts, which exception is hereby allowed.'

The sole question involved here is whether an unemancipated minor son by his natural mother as next friend may sue and obtain a judgment against his natural father, the action being based on simple negligence only.

11 Am.Jur. p. 490, § 182, states that:

'Where an action is brought in one jurisdiction for a tort committed in another, the general rule is that all matters relating to the right of action are governed by the lex loci delicti. That law determines whether a person has sustained a legal injury.'

So in 15 C.J.S., Conflict of Laws, § 12, p. 897, it also says that:

'It is thoroughly established as a general rule that the lex loci delicti, or the law of the place where the tort or wrong has been committed, is the law that governs and is to be applied with respect to the substantive phases of torts or the actions therefor, and determines the question of whether or not an act or omission gives rise to a right of action or civil liability for tort, * * *.'

Under this rule as announced by these texts which is supported by abundant undoubted authority we must determine, if we can, what the law of Montana is relative to the question we have now for decision, viz.: whether an unemancipated minor child may sue a parent and obtain a judgment for alleged damages in a suit brought in this jurisdiction. Counsel for appellant herein assert that Montana law does not aid in the solution of the question. But it would appear that they have overlooked the full import of the decision of the Supreme Court of that state in Conley v. Conley, 92 Mont. 425, 15 P.2d 922, and to which we referred in our case of McKinney v. McKinney, 59 Wyo. 204, 135 P.2d 940, where it appeared that the wife as plaintiff brought the action to recover damages from the defendant, her husband, for personal injuries alleged to have been caused by the negligence of the defendant husband's chauffeur while she was riding, at the defendant's invitation, as a passenger in defendant's automobile. A demurrer to the plaintiff's complaint was sustained. Plaintiff declined to amend and judgment was passed against her. Affirming this judgment of the trial court by unanimous opinion, five judges sitting, the court held, Syllabus 7 of 15 P.2d 922:

'Where right sought to be asserted was unknown to common law when it became part of state law, authority for such right must be found in legislative acts.'

and in part said, at page 925 of 15 P.2d:

'Where a right sought to be asserted was not known to the common law at the time it became a part of the jurisprudence of this state, 'authority for the right, if it exists, must be found in the acts of the Legislature. Bannack Statutes, p. 356; sections 5672, 10703, R.C.M.1921; Aetna Accident & Liability Co. v. Miller, 54 Mont. 377, 170 P. 760, L.R.A.1918C, 954; Jonosky v. Northern Pac. R. Co., 57 Mont. 63, 187 P. 1014; State ex rel. Metcalf v. District Court, 52 Mont. 46, 155 P. 278, L.R.A.1916F, 132, Ann.Cas.1918A, 985.' Simonsen v. Barth, 64 Mont. 95, 208 P. 938, 939.' (Italics supplied.)

We understand that it is conceded by appellant that the right attempted to be enforced in the instant action 'was not known to the common law at the time it became a part of the jurisprudence' of Montana and also that no act of the Montana Legislature has authorized such an action. We may also here remark that nothing has been drawn to our attention which would lead us to think that the alleged...