No. 86-512

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

THOMASG. WALLER and LINDA L. F7ALLER

## , Plaintiffsand Appellants,-vsDONALD ENGELKE, individually; CHARLES ENGELKE, individually;CHARLES ENGELKE and DONALD ENGELKE,doing businessas CHARLESAND DON ENGELKE, a partnership,
Defendants and Respondents.

APPEAL FROM: District Court of the FifteenthJudicialDistrict, In and for the County of Roosevelt, THe Honorable M. James Sorte,Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
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 ThomasM. Monaghan argued; Lucas & Monaghan,Miles City, Montana

Submitted: May 28, 1987
Decided: July 27, 1987

ClerkMr. JusticeFred J. Weber delivered the Opinionof the Court.

Plaintiffs Tom and Linda Wal-lerbrought suit in the Fifteenth JudicialDistrict,Roosevelt County,against Donald Engelke and his father, Charles Engelke, both individually and as a partnership, to recover damages for injuries sufferedby TomWaller whilehewas apassenger in aplanewhich 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 appropriateproceedings. The issuesare: 1. Did the District Court err in granting summary judgmentto Charles Engelke? 2. Did the District Court err in granting summary judgment to Donald Engelke? On January 5,1984,Donald Engelkewas thepilot 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
wereboth seriously injured in the crash. Donald Engelkedid not have his private pilot's license, although he did have his studentpermit. The National Transportation Safety Board (NTSB) found that the probable causes of the accidentwere: (1) improper airspeed maintained by thepilot; and (2) improperuse of the aircraft and inadequate initial training by the pilot. The NTSB found that factors relating to the accidentwere: (1) inadequate preflight preparation; (2) excessive aircraft weight and balance loads;and (3)improperaltitude.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, theplaintiffswould have to showthat 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 ofDonald Engelke was performed with the authority of Charles Engelke. (Section35-10-305,MCA.) Theplaintiffs offered noproof that thehunting of coyoteswas 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 isunable to find any evidence which would support either of the two conditions which would impose liabilityon Charles Engelke for the alleged negligenceofDonald Engelke.
The District Court also granted Donald Engelke's motion for summary judgment. It concluded that the accident happened while Donald Engelke and TomWaller were engaged in an illegalactivity ofhunting coyotes froman 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, regardingpartnership 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 orany penalty is incurred, the partnership is liable therefor to the same extent as the partner so actingoromittingtoact.
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 thepartner acting intheparticularmatter, acquired while a partner or then present to his mind, and the knowledge of any otherpartner 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 thatpartner. The issue iswhether 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 authorityof Charles Engelke. The Wallers contend thatthere

are genuine issues of material facts on both of these questions. First, the Wallers assert that Donald Engelke and CharlesEngelkewere partners ina 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 partnershipasset, was used inpart ascollateral for the purchase of the plane; (2) that the plane was listedby Donald Engelke as an expense of his farming operation; (3) that on at least one occasion Donald Engelke used the plane topick up parts for crop spraying; and (4) that one purpose of the flighton the day of the accidentwas tocheck out the farming operation. We conclude that the plaintiffs have failed to establish that the flight took place in theordinary course of any farming partnership between Donald and Charles Engelke. The depositions and affidavits showthat Tom Waller took his shotgunand shotgun shells with him on theplane 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 Engelkewere checkingon any aspectof the farming operation. The depositions show that Tom Waller and Donald Engelke intended to hunt something ofvalue 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 nothave been checking any farming operationof eitherDonald

or Charles Engelke. Thedepositionsand affidavitsestablish without contradiction thatTomWaller and Donald Engelkewere hunting from the airplane on theday of the accident andwere not engaged in a farming operation. The Wallers have failed to establish an issueofmaterial 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 Charlesmust have known about Donald's use of the plane in the farming operationand thereforehemust have authorized such usage. However, the uncontradicteddeposition 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 testifiedby deposition that the planewas 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 ofplaintiffs. In summary,the plaintiffshave 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 DistrictCourt'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 ThomasWaller 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 airir'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 aircraftsmeet federaland Montana aeronauticalrequirements. 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 inpari delicto doctrinebars this lawsuit

as toDonald 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 itswording. What ismeant 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 stateshave 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 isgrievouslywrong from a moral or criminal standpoint, the law will deem the partiesto be equally in thewrong and not allow onewrongdoer 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 wrongdoingwhich is sufficientto 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 delictodoctrine. 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 discussionof the inpari 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 thehazard of an openbox, 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 recoverybetween 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 doctrinewas thus stated: "Our law, however, does not in every case disallow an actionby onewrongdoer against another to recover damages incurred in consequenceof 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 isnot against thepolicy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties arewrongdoers. 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 recoursebetweenwrongdoersbut also points out that the doctrine does not apply to every case ofwrongdoing. 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. Insteadwe 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 relativeguilt. Following the guidance ofWashington GaslightCo., we further conclude that conduct prohibited by law which is not strongly condemnedby public policy as a matter of serious criminal conduct or delinquency,may not be sufficientto 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 similarmanner, courts from Washington and Oregon have recently been faced with negligence cases where the partieswere allegedly inpari delicto,and inboth cases the courts allowed the lawsuit to continue for public policy

reasons. InMcKinley 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: 'Themaxim being one founded onpublic policy, public policy may require its relaxation. Evenwhen thepartieshave been found to be in pari delicto,reliefhas at timesbeen 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, 698P.2d at 986. Likewise,inGoldbergv. Sanglier (Wash. 1982), 639 P.2d 1347, theWashington 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 suitwas notbarred 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 theparty 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 applicationof the rule.

Ultimately, a decision as towhether a party is in pari delicto relies onpublic policy considerations and not a neat calculus for determining differential fault. The fundamental concern that should guide a court in making itsdecision iswhether the

'public good [willbe] enhanced.

### ' (Citeomitted.) Goldberg, 639P.2d at 1353. We agree with the holding of the Washington Court that if the conduct outrages public sensibilities, then the doctrinemay properly be applied. In general we also agree with the theory that the fundamental concern shouldbe whether the public good will be enhanced. However,we prefer not to use those terms because of difficulty in defining what public goodwas intended tomean. For the assistance of the trial court, we will attempt to point out the broad parameters of the in pari delicto doctrine. We do soby theuse 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 eliminationofbank 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 forpersonal 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 theother driver was absent any fault. We further assume that

one axle on each truck carried a load of 20,100poundswhich is 100 pounds over the allowable gross weight on one axle under S 61-10-107,MCA. Would the equalwrong here in violating the maximum gross weight statute bar recovery by the non-negligent truck driver? In this example we would conclude that no significantpublic 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 doctrinewould not be applicable in that factualcircumstance. We now consider the case before us. Our Montana statutes do allowhunting 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 trainingby the pilot so that the huntingmay be done in safety and also in consistency with Montana wildlife goals. Here the defendantDonald 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 ofMontana 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 ofwhich 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 continuationof the present tort action.In light of this decision, we conclude that we must overrule two prior Montana caseswhich relied on the inpari delicto doctrine to bar lawsuits. In Melville v. Butte-Balaklava Copper Co. (1913), 47Mont. 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 courtlsjudgment for the defendant, citing the inpari delicto doctrine, because Mr. Melville had worked in the defendant's mine formore 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 lawwas amisdemeanor. In Jacksonv. Lomas (1921),60Mont. 8, 198 Pac. 434,a minor, bought firecrackers from the defendant, a Butte businessman. A Butte ordinanceprohibited 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 defendanthad violated the city fireworksordinance. 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 lawby theemployee, as we recognize the extreme compulsionwhich normally rests upon the employee to comply with such requirements on the part of his employer. We therefore conclude that the conduct ofMr. Melville in working beyond the eight hours is not conductofwhich the law stronglydisapprovesas a matter ofpublic policy. Ina similarmanner, in Jackson,the childhad purchased fireworks in violation of the law and the court concluded that recovery for his injurieswas 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 ofpublic policy. In both Melville and Jackson we conclude that the conduct involving the plaintiff would today not be strongly condemnedby public policy as a matter of seriousdelinquency

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 injuredpersons the right to recovery for injuriescaused by the negligence of the other parties. In making this balance we today conclude that the in pari delicto doctrine would notbar recovery. We specifically overrule Melvillev. 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 inpari delictodoctrine. 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 moredifficult to analyze, we do not choose to overrule them at thistime. Weprefer toallowtheboundaries of the inpari delicto doctrine tobe developed by future cases which come before us. Fle affirm the District Court as to Charles Engelke,

reverse the District Court as toDonald Engelke, and remand



## . . for furtherproceedings consistentwith th'

We Concur: I



### , Justices

Morrison, Jr.