Volume 82 — South Dakota Reports

<bold>1. Divorce.</bold> Divorce court has a continuing jurisdiction to change or modify provisions of decree for support and education of children of the marriage. SDC 14.0312, 14.0724, 14.0726.<page_number>Page 264</page_number> <bold>2. Divorce.</bold> Legal obligation of parents to support their children is not affected by a decree of divorce. <bold>3. Parent and Child.</bold> The duty and obligation of parents to support their offspring does not necessarily terminate at the age of majority; it is the obligation of a parent to support his child who is unable to maintain himself by work without regard to age. SDC 14.0312. <bold>4. Divorce.</bold> A parent's liability to support an incapacitated adult child might be enforced in a divorce action. SDC 14.0312, 14.0724, 14.0726. <bold>5. Divorce.</bold> Proceeding on divorced wife's petition to terminate trust which had been provided for by divorce decree for support of then minor children was incidental to action in which divorce decree was entered, and divorce court retained jurisdiction. SDC 14.0312, 14.0724, 14.0726. <bold>6. Divorce.</bold> A divorce decree providing for a division of property between the parties is final and cannot be modified in absence of grounds on which ordinary judgments may be modified and set aside. <bold>7. Divorce.</bold> Divorce decree which was modified to set up trust for care of then minor children in custody of mother was not a final adjudication of parental rights and duties of parties, and divorce court retained same jurisdiction over parties which it had prior to entry of final decree and had power to modify or alter decree so long as there was under its protection either a minor or incapacitated adult child unable to maintain himself. SDC 14.0312, 14.0724, 14.0726. <bold>8. Divorce.</bold> Refusal to terminate a trust created by divorce decree for care of minor children after children reached majority was not an abuse of discretion even though divorced mother alleged that she could adequately provide for care and maintenance of invalid adult daughter. SDC 14.0312, 14.0724, 14.0726.<page_number>Page 265</page_number>

<bold>1. Process.</bold> "Abuse of process" consists of the malicious misuse or misapplication of legal process after its issuance to accomplish some collateral purpose not warranted or properly attainable thereby. <bold>2. Process.</bold> The essential elements of abuse of process are the existence of an ulterior purpose, and a willful act in the use of the process not proper in the regular prosecution of the proceeding.<page_number>Page 271</page_number> <bold>3. Garnishment.</bold> Creditor did not maliciously abuse legal process by commencing garnishment proceedings against wife and husband where both owed creditor $20 for trailer court rental and husband owed creditor a disputed amount for tractor rental. <bold>4. Garnishment.</bold> The repeated or successive garnishment of exempt property may, under certain circumstances, support an action for abuse of process. SDC 51.1801 et seq.; SDC 1960 Supp. 37.4903, 37.5001 et seq. <bold>5. Garnishment.</bold> The mere garnishment of money or property which may be claimed as exempt is not sufficient to support an action for abuse of process. <bold>6. Exemptions.</bold> Personal property exemptions provided for by statute are not self-executing nor do they insulate debtor against levy, garnishment, or attachment, and the right to claim exemption is a personal privilege of debtor and burden is on him to make such claim. SDC 51.1801 et seq.; SDC 1960 Supp. 37.4903, 37.5001 et seq. <bold>7. Process.</bold> Before plaintiff may recover for abuse of process he must show the damages claimed occurred as a natural and probable consequence of defendant's wrong.

<bold>1. Master and Servant.</bold> Lease agreement between tenant and oil company, which provided for minimum rental payments, that rental payments<page_number>Page 277</page_number> were to be computed on business volume, that lessee would promote sale of lessor's products and would indemnify lessor for liability arising out of station operation, did not indicate type of control sufficient to establish employer-employee relationship whereby lessor would be liable under doctrine of respondent superior for negligent acts of lessee. <bold>2. Master and Servant.</bold> Where oil company did not withhold or pay social security or taxes for lessee, lessee paid all expenses and he received all income without accounting to lessor, and lessee owned most equipment at service station and had freedom of operation thereof, evidence was insufficient to establish that lessee was employee of oil company and company could not be held liable under doctrine of respondeat superior for negligent acts of lessee. <bold>3. Estoppel.</bold> Fact that lessor oil company's signs and advertising were displayed on premises of service station would not estop oil company from denying employer-employee relationship with lessee who negligently injured plaintiff.

<bold>1. Master and Servant.</bold> In establishing prima facie case for injuries sustained during employment, burden is on employee to show actionable fault of employer.<page_number>Page 281</page_number> <bold>2. Negligence.</bold> To constitute actionable negligence there must be duty on part of defendant to protect plaintiff from injury, failure to perform that duty, and injury to plaintiff resulting from such failure. <bold>3. Master and Servant.</bold> It is duty of master to furnish servants with reasonably safe place to work and with reasonably safe tools, appliances and equipment with which to perform the work. <bold>4. Master and Servant.</bold> Where master has furnished suitable place to work and suitable appliances, if servant is mature and sensible and has had some experience in work being done he must look after himself as to all obvious dangers in details of work. <bold>5. Master and Servant.</bold> Master cannot be held liable for failure to furnish safe place to work if danger is so obvious and is before servant's eyes to such extent that he must know by use of ordinary intelligence danger that confronts him. <bold>6. Master and Servant.</bold> While master has duty to furnish servant with safe place to work, determination of what is safe depends on particular circumstances. <bold>7. Master and Servant.</bold> Master is not insurer of safety of instrumentality or places for work furnished his servant but is liable only for negligence or failure to exercise due, ordinary or reasonable care. <bold>8. Master and Servant.</bold> In order to warrant finding that negligence or an act not amounting to wanton wrong is proximate cause of injury to employee it must appear that injury was natural and probable consequence of negligence or wrongful act. <bold>9. Master and Servant.</bold> Where evidence showed that pen in which unbroken horse was confined was four and one-half feet high and of sturdy construction, that employee was familiar with actions of unbroken horses, and that pen and gate to pen functioned properly, fact<page_number>Page 282</page_number> that horse was able to strike employee with its head while the employee was preparing to open gate did not show employer failed to provide safe place of employment.