                                             NO.    82-276

                  I N TIlE SUPkEME COURT GF TEE STATE O Fi NY M
                                                       F !O r A A

                                                    1983




ROBERT EWALT, SERRY M. HEKSLEY,
b R T Y EFJALT , and EVZRETT E A T ,
 O OW                         W L

                    P l a i n t i f f s and Respondents,

         -vs-

CHARLES SCOTT,

                    Defendant and A p p e i l a n t .




Appeal from:        District Court of t h e S i x t e e n t h J u d i c i a l G i s t r i c t ,
                    i n and f o r t h e County o f C a r t e r ,
                    The H o n o r a b l e A i f r e d B. C o a t e , J u d g e p r e s i d i n g .


C o u n s e l o f Record:

          For Appellant:

                   Lucas & Monaghan; Thomas Monaghan, Xiles C i t y ,
                   Montana


          For Respondents:

                   Gene ~ u n t l e y ,B a k e r , Montana


                                                                                  . -
                                                                                   -     --                   -

                                             S u b m i t t e d on B r i e f s :         March 1 7 , 1 9 8 3

                                                                 Decided:               November 1 6 , 1983



Filed:



                                                                     -
                                             Clerk
Mr. Justice Daniel J.              Shea delivered the Opinion of the
Court.


         Charles Scott appeals from an order of the Carter County
District Court that refused to set aside his default in a
wrongful death action filed against him.                     He also appeals
from the trial court's order refusing to let him have a jury
trial on the issue of damages.                On the question of damages,
he   alleges        that     the   damages    awarded   to    plaintiffs    are
excessive        and    that    the   trial    court    erred     in   admitting
evidence in support of his childrens' (all adults) claim for
mental anguish.
       We hold that the trial court abused its discretion in
refusing to set aside the default, and therefore vacate the
judgment and remand for further proceedings.                      We need not
address the issue of whether defendant has a right to jury
trial on damages after his default had been entered.                        The
issue of mental anguish is controlled by our decision in
Dawson v. Hill          &   Hill Truck Lines (Mont. Decided October 21,

               ,
19831, - P.2d - 40 St.Rep. 1689.                         In Dawson, we held
that     ". . .     damages for the sorrow, mental distress or grief
of the parents of a deceased minor are recoverable in a
wrongful death action brought pursuant to section 27-1-512,
PICA."      The right to recover damages for this element of
damages must also be recognized for the children who bring an
action     for      the wrongful death of         a parent, whether         the
children       be      unemancipated    or    adults.        We   confine   the
remainder of this opinion to the default judgment issue.
         On March 19, 1976, the defendant Charles Scott (who was
employed as a truck driver by England) struck and killed 80
year     old   Charles Ewalt on a             street in Alzada, Montana.
Shortly after Ewalt's death, an inquest was held and Scott
testified as to what happened.          Other than himself, there
were no eyewitnesses.         The coroner's jury found no culpable
negligence on the part of Scott and no criminal charges were
filed.      Scott returned to Utah shortly after the inquest.
Shortly after Scott returned to Utah, Scott left England's
employ, whose business offices are located at Salt Lake City,
Utah.     Scott did not have a forwarding address for his former
employer.
        More than a year after the accident, on April 11, 1977,
the plaintiffs (all adult children of the deceased) filed a
wrongful     death   action   against England   and   Scott   seeking
damages for the death of their father.            On May 3, 1977,
England was personally        served in Salt Lake City and his
office manager accepted service on behalf of Scott.           On May
24, 1977, a     law firm representing both England and Scott
filed a motion to dismiss with the Carter County District
Court.
        Nothing happened until a year later, June 15, 1978, when
plaintiffs noticed the deposition of Scott for July 13, 1978,
to be taken at Ekalaka, Montana.        Scott could not be located
and the deposition was postponed.         Almost two years passed
when the plaintiffs moved the trial court to enter a default
judgment against Scott for his failure to appear for the
deposition scheduled two years earlier.
        The trial court heard this motion on June 6, 1980, and
on June 16, 1-980, the court entered an order giving counsel
for England and Scott 60 days from the date of the order to
report on any progress in locating Scott.       Scott could not be
located, however, and the plaintiffs renewed their motion for
a default judgment against Scott.         Pursuant to plaintiffs'
request,     the    trial   court     awarded a $105,000    judgment   to

plaintiffs against defendant Scott on1.y. The plaintiffs then
dismissed     the action against England., without prejudice.
After this entry of default on September 15, 1980, counsel
for Scott moved to file an answer and a demand for jury trial
as to damages.        The trial record does not reflect whether the
trial court actually ruled on these motions.
      Nine more months had passed when               Scott was   finally
located i n March 1981.
         .                    Through counsel, Scott filed a motion
to set aside the default.              The uncontradicted deposition
testimony of Scott indicates that he had no idea a lawsuit
had been filed against him until he was finally located near
his home in another state.            The court, however, refused to
set aside its order of default and proceeded to a hearing of
evidence on the question of damages.
      The hearing on damages took place on April 13, 1982, and
on May 20, 1982, the court entered its findings, conclusions
and   order    and     awarded      plaintiffs   $100,000   in   general
damages--confined solely to the grief and sorrow of the adult
children, and $1,760 in special damages               (representing the
funeral bill).
      The   trial     court entered      Scott's default because he
failed. to appear at a deposition scheduled in 1978 / even
though he had never been personally served and had never been
notified of the deposition or even that a civil wrongful
death action had been filed against him.               His deposition,
uncontradicted by any other evidence, clearly demonstrated a
lack of knowledge on his part that he had. been sued.                  In
addition,     there    is   every    indication in    the record. that
Scott's     former employer, England, and counsel here, made
reasonable efforts to locate Scott to tell him about the
pending lawsuit, to no avail.
       The trial court entered the default against Scott and
refused    to    set     it   aside   apparently because      it believed
England had       accepted service on behalf of Scott and had
thereby caused his disappearance and the inability to locate
him.    Not a scintilla of evidence suggests, however, that
England had caused Scott's disappearance or the inability of
the    parties    to     locate   him.     In    fact, the    trial   court
expressly found that plaintiffs had not proved willfulness or
bad faith, but somehow it reasoned that England was at fault
and that Scott should therefore be punished.
       In Owen v. F. A. Buttrey Co.               (Mont. 19811, 627 P.2d
1233, 38       St.Rep.    714, we      stated that sanctions such as
dismissal or defaults are tools that may be used against
parties    who    deliberately        flout the    discovery process       or
disobey the orders of trial courts.               However, we also stated
that such extreme sanctions are not permitted unless there is
a showing of willfulness.              Here, the trial court not only
expressly found that willfulness did not exist, the record
contains no evidence to support a finding of willfulness.
Scott can hardly be faulted when he had no idea he had been
sued;    and     the   record     demonstrates     that   England   made   a
reasonable effort to find Scott.             Scott was finally located
through the efforts of private investigators representing
England.
       The order refusing to set aside the default judgment is
vacated and this cause is remanded to the District Court for
further proceedings consistent with the opinion.
We Concur:
