No. 86-512 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THOMAS G. WALLER and LINDA L. 

F7AL LER , Plaintiffs and Appellants, 

-vsDONALD ENGELKE, individually; CHARLES 

ENGELKE, individually; CHARLES ENGELKE 

and DONALD ENGELKE, doing business as 

CHARLES AND DON ENGELKE, a partnership, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

THe Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David L. Irving, Glasgow, Montana 

David S. Evinger argued; Robins, Zelle, Larson and 

Kaplan, Minneapolis, Minnesota 

For Respondent : 

Loren J. O'Toole; O'Toole & Hunt, Plentywood, Montana 

Thomas M. Monaghan argued; Lucas & Monaghan, Miles City, 

Montana 

Submitted: May 28, 1987 

Decided: July 27, 1987 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs Tom and Linda Wal-ler brought suit in the 

Fifteenth Judicial District, Roosevelt County, against Donald 

Engelke and his father, Charles Engelke, both individually 

and as a partnership, to recover damages for injuries suffered by Tom Waller while he was a passenger in a plane which 

crashed while piloted by Donald Engelke. The District Court 

granted the summary judgment motions of Donald Engelke and 

Charles Engelke. The Wallers appealed both summary judgment 

orders. Fle affirm in part, reverse in part and remand for 

appropriate proceedings. 

The issues are: 

1. Did the District Court err in granting summary 

judgment to Charles Engelke? 

2. Did the District Court err in granting summary 

judgment to Donald Engelke? 

On January 5, 1984, Donald Engelke was the pilot and Tom 

Waller the passenger in a Cessna 152 airplane. The District 

Court found that they were flying at an altitude of 300 or 

400 feet and were looking for and hunting coyotes when the 

airplane stalled and crashed. Donald Engelke and Tom Waller 

were both seriously injured in the crash. Donald Engelke did 

not have his private pilot's license, although he did have 

his student permit. 

The National Transportation Safety Board (NTSB) found 

that the probable causes of the accident were: (1) improper 

airspeed maintained by the pilot; and (2) improper use of the 

aircraft and inadequate initial training by the pilot. The 

NTSB found that factors relating to the accident were: (1) 

inadequate preflight preparation; (2) excessive aircraft 

weight and balance loads; and (3) improper altitude. 
The District Court found that the hunting was not 

related to a farming partnership between Charles Engelke and 

Donald, his son, and granted Charles Engelke's motion for 

summary judgment, stating: 

In order to impose liability on Charles 

Engelke, the plaintiffs would have to show that the 

alleged negligence of Donald Engelke took place in 

the ordinary course of the business of the alleged 

partnership between Donald and Charles Engelke or 

that the wrongful act or omission of Donald Engelke 

was performed with the authority of Charles 

Engelke. (Section 35-10-305, MCA.) The plaintiffs 

offered no proof that the hunting of coyotes was in 

any way related to the alleged farming partnership 

of Donald and Charles Engelke. The plaintiffs 

offered no proof that Charles Engelke had ever 

given Donald Engelke authority to fly the airplane 

on behalf of the partnership on hunting trips. 

Thus, the Court is unable to find any evidence 

which would support either of the two conditions 

which would impose liability on Charles Engelke for 

the alleged negligence of Donald Engelke. 

The District Court also granted Donald Engelke's motion 

for summary judgment. It concluded that the accident happened while Donald Engelke and Tom Waller were engaged in an 

illegal activity of hunting coyotes from an airplane and thus 

were in pari del-icto. The Wallers appealed both summary 

judgment orders. 

Did the District Court err in granting summary judgment 

to Charles Engelke? 

Section 35-10-305, MCA, regarding partnership liability, 

provides : 

Where, by any wrongful act or omission of any 

partner acting in the ordinary course of the business of the partnership or with the authority of 

his copartners, loss or injury is caused to any 

person not being a partner in the partnership or 
any penalty is incurred, the partnership is liable 

therefor to the same extent as the partner so 

acting or omitting to act. 

Section 35-10-304, MCA, regarding partnership knowledge or 

notice, provides: 

Notice to any partner of any matter relating to 

partnership affairs and the knowledge of the partner acting in the particular matter, acquired while 

a partner or then present to his mind, and the 

knowledge of any other partner who reasonably could 

and should have communicated it to the acting 

partner operate as notice to or knowledge of the 

partnership, except in the case of a fraud on the 

partnership committed by or with the consent of 

that partner. 

The issue is whether there is any evidence that Donald 

Engelke's flight activities were performed in the ordinary 

course of any partnership between Donald and his father 

Charles, or whether the flights were performed with the 

authority of Charles Engelke. The Wallers contend that there 

are genuine issues of material facts on both of these 

questions. 

First, the Wallers assert that Donald Engelke and 

Charles Engelke were partners in a farming operation and that 

the flight activities on the date of the accident took place 

in the ordinary course of the farming partnership. In support of that theory, the Wallers contend: (1) that seed 

crop, a partnership asset, was used in part as collateral for 

the purchase of the plane; (2) that the plane was listed by 

Donald Engelke as an expense of his farming operation; (3) 

that on at least one occasion Donald Engelke used the plane 

to pick up parts for crop spraying; and (4) that one purpose 

of the flight on the day of the accident was to check out the 

farming operation. We conclude that the plaintiffs have 

failed to establish that the flight took place in the 
ordinary course of any farming partnership between Donald and 

Charles Engelke. 

The depositions and affidavits show that Tom Waller took 

his shotgun and shotgun shells with him on the plane and that 

both Tom Waller and Donald Engelke were hunting at the time 

of the crash. The flight occurred in early January when 

farming was not taking place on the Engelke farm. The 

Wallers failed to show that either Tom Waller or Donald 

Engelke were checking on any aspect of the farming operation. 

The depositions show that Tom Waller and Donald Engelke 

intended to hunt something of value on the date of the accident. The flight pattern and altitude of 300 to 400 feet is 

consistent with hunting. The Wallers failed to rebut the 

deposition testimony that Tom Waller had not been asked by 

anyone to check out the farming operations of either Donald 

or Charles Engelke. 

Furthermore, the depositions of both Tom Waller and 

Donald Engelke establish that the crash took place on land 

owned by Melvin Nelson. At the time of the crash they could 

not have been checking any farming operation of either Donald 

or Charles Engelke. The depositions and affidavits establish 

without contradiction that Tom Waller and Donald Engelke were 

hunting from the airplane on the day of the accident and were 

not engaged in a farming operation. The Wallers have failed 

to establish an issue of material fact. 

In addition, the Wallers have failed to establish that 

the flight activities on the date of the accident were performed with the authority of Charles Engelke. The Wallers 

contend that 5 35-10-305, MCA, provides that a partner can 

authorize an action by implicit as well as explicit means; 

and argue that Charles must have known about Donald's use of 

the plane in the farming operation and therefore he must have 

authorized such usage. However, the uncontradicted 
deposition testimony submitted by the defendants established 

that Charles Engelke did not authorize anyone, either explicitly or implicitly, to check out the farming operation by 

air. 

Charles Engelke, Donald Engelke, and Delores Engelke, 

Charles' wife, all testified by deposition that the plane was 

purchased by Donald for his own use. The Wallers failed to 

establish any connection between the flight at the time of 

the crash and Charles Engelke. The hunting of coyotes from 

the plane was not connected to the alleged farming partnership of Donald and Charles Engelke. The fact that Donald 

Engelke owned and piloted the plane in which Tom Waller was 

hunting in no way has been connected to Charles Engelke. 

Simply put, Charles Engelke had no connection to the events 

which led to the claimed injury of plaintiffs. 

In summary, the plaintiffs have failed to establish that 

the alleged negligence of Donald Engelke took place in the 

ordinary course of the alleged farming partnership between 

Donald and Charles Engelke, or that the alleged negligence 

was performed with the authority of Charles Engelke. The 

District Court's summary judgment order as to Charles Engelke 

is affirmed. 

I1 

Did the District Court err in granting summary judgment 

to Donald Engelke? 

The District Court concluded that the airplane accident 

occurred while Donald Engelke and Thomas Waller were engaged 

in the illegal activity of hunting coyotes from an airplane 

without a proper permit. We note that in general no game 

birds, game, or fur-bearing animals may be killed, taken or 

shot at from any type of aircraft. Section 87-3-126, MCA. 

However, predatory animals that prey upon livestock, specifically including coyotes and lynx, may be hunted from the air 
ir' Department of Livestock regulations are followed. See 5 

81-7-101, MCA, and following sections. Under A.R.M. §§ 

32.22.101 to 32.22.106, permits to hunt predatory animals 

from the air will be issued only to Montana-domiciled licensed pilots with at least 200 total flying hours whose 

aircrafts meet federal and Montana aeronautical requirements. 

The court granted Donald Engelke's motion for summary 

judgment based upon the in pari delicto doctrine. We agree 

with the court's conclusion that the accident occurred while 

Donald Engelke and Thomas Waller were engaged in an illegal 

activity. The record clearly demonstrates that Donald 

Engelke and Thomas Waller were hunting coyotes from the 

airplane moments before the crash. However, we disagree with 

the court that the in pari delicto doctrine bars this lawsuit 

as to Donald Engelke. 

The in pari delicto doctrine, found at 5 1-3-215, MCA, 

provides : 

Between those who are equally in the right or 

equally in the wrong, the law does not interpose. 

The Montana statute was originally enacted in 1895. The 

statute is not clear in its wording. What is meant by "those 

who are equally in the right?" The cases which we have 

examined have not applied a theory to people equally in the 

right so that we are unable to state what was intended by 

that phrase. In a similar way, what does "equally in the 

wrong" mean? In interpreting this doctrine, the courts of 

other states have not required the trial court to analyze the 

evidence and determine if in fact there is an equality in 

wrongdoing similar to the comparisons required under our 

comparative negligence law in Montana. Instead, the courts 

have indicated that if the conduct is grievously wrong from a 

moral or criminal standpoint, the law will deem the parties 
to be equally in the wrong and not allow one wrongdoer to sue 

the other. We further point out that the statute does not 

establish whether the wrong mentioned includes wrongfully 

engaging in, as an example, negligent action, or is to be 

limited to some form of criminal conduct. If it is limited 

to criminal conduct, there is no suggestion of the nature of 

the wrongdoing which is sufficient to come under the statute. 

In the absence of clear statutory guidance, we are required 

to look to case law to establish the nature of the in pari 

delicto doctrine. 

The doctrine long has been recognized in both English 

and American jurisprudence. Washington Gaslight Co. v. 

District of Columbia (1896), 161 U.S. 316, 16 S.Ct. 564, 40 

L.Ed. 712, contains a good discussion of the in pari delicto 

doctrine. This case involved a personal injury claim by a 

woman who stepped into an open box placed in the city sidewalk by the gas light company. After recovery by the woman 

from the District of Columbia, the District attempted to 

recover from the gas company. The company contended that 

both the District and the company had a legal obligation to 

keep the sidewalk free of the hazard of an open box, and that 

as a result the District and company were in pari delicto, 

barring recovery by the District. The U. S. Supreme Court 

concluded that the doctrine did not bar recovery between the 

company and the District, and stated: 

The principle thus announced qualifies and 

restrains within just limits the rigor of the rule 

which forbids recourse between wrongdoers. In the 

leading case of Lowell v. Railroad, 23 Pick. 24, 

32, the doctrine was thus stated: 

"Our law, however, does not in every case 

disallow an action by one wrongdoer against another 

to recover damages incurred in consequence of their 

joint offense. The rule is, 'In pari delicto, 
potior est conditio defendentis.' If the parties 

are not equally criminal, the principal delinquent 

may be held responsible to his codelinquent for 

damages incurred by their joint offense. In respect to offenses in which is involved any moral 

delinquency or turpitude, all parties are deemed 

equally guilty, and courts will not inquire into 

their relative guilt. But where the offense is 

merely malum prohibiturn, and is in no respect 

immoral, it is not against the policy of the law to 

inquire into the relative delinquency of the parties, and to administer justice between them, 

although both parties are wrongdoers. 

Washington Gaslight Co. v. District of Columbia (1896), 161 

U.S. 316, 327-28, 16 S.Ct. 564, 568, 40 L.Ed. 712, 718-19. 

This case points out that the in pari delicto doctrine 

generally forbids recourse between wrongdoers but also points 

out that the doctrine does not apply to every case of wrongdoing. The Court emphasized that in respect to offenses 

which involved moral delinquency or turpitude, all parties 

were deemed equally guilty and the Court would not inquire 

into their relative guilt. While we agree with the theory, 

we do not choose to adopt the terminology of moral delinquency or turpitude. Instead we conclude that where offenses 

have involved criminal conduct or delinquency of which the 

law strongly disapproves as a matter of public policy, the 

parties are to be deemed equally guilty and the courts will 

not inquire further into their relative guilt. Following the 

guidance of Washington Gaslight Co., we further conclude that 

conduct prohibited by law which is not strongly condemned by 

public policy as a matter of serious criminal conduct or 

delinquency, may not be sufficient to bar recovery; and that 

in such a case, it is appropriate for the law to inquire into 

the relative delinquency of the parties and to administer 

justice between them. 
In a similar manner, courts from Washington and Oregon 

have recently been faced with negligence cases where the 

parties were allegedly in pari delicto, and in both cases the 

courts allowed the lawsuit to continue for public policy 

reasons. In McKinley v. Weidner (Or. 1985), 698 P.2d 983, a 

client brought a negligence action against his attorney, 

alleging the attorney told him to tender and then dishonor a 

check in a ploy to recover a boat from a third party. The 

Oregon Court of Appeals reversed the lower court's decision 

that the suit was barred and discussed the in pari delicto 

doctrine: 

Oregon has also recognized the public policy 

orientation of the doctrine. In McElwee v. 

McElwee, 171 Or. 462, 138 P.2d 210 (1943), the 

court said: 

'The maxim being one founded on public policy, 

public policy may require its relaxation. 

Even when the parties have been found to be in 

pari delicto, relief has at times been awarded 

on the ground that in the particular case 

public policy has been found to be best conserved by that course.' 171 Or. at 467, 138 

P.2d 208, quoting Condit v. Condit, 115 Or. 

481, 482-83, 237 P.360 (1925). 

McKinley, 698 P.2d at 986. 

Likewise, in Goldberg v. Sanglier (Wash. 1982), 639 P.2d 

1347, the Washington Supreme Court reversed the lower court's 

decision that the case was barred and reinstated the trial 

court's judgment. After an extensive discussion of the in 

pari delicto doctrine, the Washington Court held that the 

suit was not barred because "[plublic policy is better served 

by upholding the trial court in this case." Goldberg, 639 

P. 2d at 1355. On the issue of the barring of a lawsuit by 

the in pari delicto doctrine, the Goldberg court stated: 
Where the conduct of the party who seeks to enlist 

support of the doctrine outrages public sensibilities more than the conduct of the party against 

whom the doctrine is sought to be applied, courts 

will not support application of the rule. 

Ultimately, a decision as to whether a party is in 

pari delicto relies on public policy considerations 

and not a neat calculus for determining differential fault. The fundamental concern that should 

guide a court in making its decision is whether the 

'public good [will be] enhanced. ' (Cite omitted. ) 

Goldberg, 639 P.2d at 1353. 

We agree with the holding of the Washington Court that 

if the conduct outrages public sensibilities, then the doctrine may properly be applied. In general we also agree with 

the theory that the fundamental concern should be whether the 

public good will be enhanced. However, we prefer not to use 

those terms because of difficulty in defining what public 

good was intended to mean. 

For the assistance of the trial court, we will attempt 

to point out the broad parameters of the in pari delicto 

doctrine. We do so by the use of two examples. In the first 

example we assume that in the course of a bank robbery, one 

bank robber fires his gun and injures the other bank robber. 

May the injured bank robber sue the other bank robber for 

that negligent conduct in shooting him? Clearly the public 

policy aimed at the elimination of bank robbery outweighs the 

policy of allowing one person to sue another for personal 

injury. In that circumstance we would conclude that both 

robbers would be deemed equally responsible and the courts 

would not inquire into their relative guilt and would not 

allow recovery for personal injury. Our second example is at 

the other extreme. We assume two trucks are involved in a 

collision in which one driver was clearly negligent and the 
other driver was absent any fault. We further assume that 

one axle on each truck carried a load of 20,100 pounds which 

is 100 pounds over the allowable gross weight on one axle 

under S 61-10-107, MCA. Would the equal wrong here in violating the maximum gross weight statute bar recovery by the 

non-negligent truck driver? In this example we would conclude that no significant public policy would be offended in 

allowing recovery and would therefore allow recovery by the 

non-negligent truck driver from the negligent truck driver. 

The in pari delicto doctrine would not be applicable in that 

factual circumstance. 

We now consider the case before us. Our Montana statutes do allow hunting of coyotes from an airplane, but place 

limitations upon the right to hunt. The statutes limit the 

places and condition where hunting may take place from an 

airplane and especially require qualified flight training by 

the pilot so that the hunting may be done in safety and also 

in consistency with Montana wildlife goals. Here the defendant Donald Engelke did not have the required flight training 

and he had not made any application for a license. The 

hunting statute is not aimed at correcting serious criminal 

conduct comparable to armed robbery, homicide or other serious felonies. While there is a public policy of requiring a 

license before hunting from an airplane may be allowed, the 

public policy of Montana also gives the right to recover for 

injuries caused by the negligence of another party. We are 

required to compare or balance these public policies. We 

conclude that the hunting statute is not of a type involving 

criminal conduct or delinquency of which the law so strongly 

disapproves as a matter of public policy that access to the 

courts should be denied for tort purposes. We conclude that 

the in pari delicto doctrine should not be applied to bar a 

continuation of the present tort action. 
In light of this decision, we conclude that we must 

overrule two prior Montana cases which relied on the in pari 

delicto doctrine to bar lawsuits. In Melville v. 

Butte-Balaklava Copper Co. (1913), 47 Mont. 1, 130 Pac. 441, 

an action to recover damages for the death of Michael 

Melville was brought by his widow and minor children. Mr. 

Melville's death was alleged to have been caused by the 

wrongful act of the defendant. The Court affirmed the lower 

courtls judgment for the defendant, citing the in pari delicto doctrine, because Mr. Melville had worked in the defendant's mine for more than eight continuous hours in violation 

of Montana law. The Court noted that the eight-hour law 

could be broken by both the employee and employer if the 

employee worked more than eight hours and that violation of 

the law was a misdemeanor. 

In Jackson v. Lomas (1921), 60 Mont. 8, 198 Pac. 434, a 

minor, bought firecrackers from the defendant, a Butte businessman. A Butte ordinance prohibited the sale and discharge 

of fireworks within the city limits. The plaintiff injured 

himself when he discharged the fireworks and sued the defendant. The Court reversed the $1200 jury verdict based upon 

the in pari delicto doctrine because both the plaintiff and 

defendant had violated the city fireworks ordinance. 

Although these two cases involved death or serious 

injury, tort recovery was barred based upon the in pari 

delicto doctrine. In Melville, the conduct which barred 

recovery of the miner's widow was Mr. Melville's working in 

excess of eight continuous hours. Today we view the eight 

hour law responsibility as resting primarily on the shoulders 

of the employer, and consider the obligation of the employer 

in that regard as being very significant as a matter of 

public policy. However, we do not conclude there is a similar public policy which attaches to the breach of law by the 
employee, as we recognize the extreme compulsion which normally rests upon the employee to comply with such requirements on the part of his employer. We therefore conclude 

that the conduct of Mr. Melville in working beyond the eight 

hours is not conduct of which the law strongly disapproves as 

a matter of public policy. 

In a similar manner, in Jackson, the child had purchased 

fireworks in violation of the law and the court concluded 

that recovery for his injuries was therefore barred. Again 

we distinguish between the conduct of the adult seller of 

fireworks and the minor purchaser of the same. We conclude 

that the conduct on the part of the child in purchasing the 

fireworks is not conduct of which the law strongly disapproves as a matter of public policy. 

In both Melville and Jackson we conclude that the conduct involving the plaintiff would today not be strongly 

condemned by public policy as a matter of serious delinquency 

or criminal conduct. We are required to balance the public 

policy in each case with regard to the prohibition of an 

employee working more than eight hours and the purchase of 

fireworks by a minor against the public policy of allowing 

the injured persons the right to recovery for injuries caused 

by the negligence of the other parties. In making this 

balance we today conclude that the in pari delicto doctrine 

would not bar recovery. We specifically overrule Melville v. 

Butte-Balaklava Copper Co. (1913), 47 Mont 1, 130 Pac. 441, 

and Jackson v. Lomas (1921), 60 Mont. 8, 198 Pac. 434. We 

emphasize that these cases further assist in establishing the 

parameters of the in pari delicto doctrine. 

We note that Kallio v. Northwestern Improvement Co. 

(1913), 47 Mont. 314, 132 Pac. 419, and Lencioni v. Long 

(1961), 139 Mont. 135, 361 P.2d 445, also involved the in 

pari delicto doctrine. Because these cases are more 
difficult to analyze, we do not choose to overrule them at 

this time. We prefer to allow the boundaries of the in pari 

delicto doctrine to be developed by future cases which come 

before us. 

Fle affirm the District Court as to Charles Engelke, 

reverse the District Court as to Donald Engelke, and remand 

. . for further proceedings consistent with th' 

We Concur: I 

, Justices 

Morrison, Jr.