NO. 12722 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

VERNON D. SEDLACEK, 

Cross Appellant, 

and 

SIGNE M. SEDUCEK, 

Plaintiff and Respondent, 

EDWARD A. AHRENS, DOROTHY G. AHRENS and 

CLAYTON E. AHRENS, 

Defendants and Appellants. 

Appeal from: District Court of the Seventh Judicial District, 

Honorable L. C. Gulbrandson, Judge presiding. 

Counsel of Record: 

For Appellants : 

Hutton, Sheehy and Cromly, Billings, Montana 

John C. Sheehy argued, Billings, Montana 

For Respondent: 

Morrison, Ettien and Barron, Havre, Montana Jo Chan Ettien argued, Havre, Montana 

Submitted : November 14, 1974 

Decided : DEC 3 0 '414 

Filed : EC 3 0 $954 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Following an automobile-motor bike accident, the automobile passenger sued the minor motorcyclist and his parents for 

her personal injuries and the automobile driver sued in a separate 

action for damages to his car. Two judgments were entered in the 

district court of McCone county following a consolidated nonjury 

trial: (1) Judgment for the passenger against all defendants. 

(2) Judgment against the driver in favor of all defendants. The 

parents of the minor motorcyclist appeal from the first judgment 

and the driver crossappeals from the second judgment. 

On July 28, 1966, at about 4:00 p.m. Clayton Ahrens, 

a 12 year old, was driving a Honda motor bike south on Montana 

Route 12 in McCone County. Vernon Sedlacek was driving a Cadillac, 

in which his wife Signe was a passenger, in the same direction 

behind the motor bike. 

As the Cadillac approached a point on the highway about 

600 feet before reaching the accident scene, the Cadillac slowed 

from about 70 miles per hour to about 60 miles per hour and then 

picked up speed as it prepared to pass the motor bike. 

Clayton Ahrens did not signal his intent to turn left 

and Vernon Sedlacek did not sound nis horn until he was in the act 

of passing. 

As Clayton Ahrens was making his left turn, Vernon 

Sedlacek applied the brakes and pulled left on to the shoulder 

of the highway causing the ~adillacto roll. It came to rest on 

its top with the front end on the pavement and the rear end half 

in the left borrow pit. It appeared from marks on the Cadillac 

that the motor bike had collided with the right rear fender of 

the car. 

The motor bike was owned by Clayton Ahren's father who 

had purchased it ten days before the accident. Clayton was using 
it on Montana Route 12 without the knowledge of his parents, 

Edward and Dorothy Ahrens, and against their instructions that 

he not go out upon the highway when using the motor bike. 

Signe Sedlacek received personal injuries in the accident. The Cadillac was extensively damaged. Clayton Ahrens received only superficial injuries and Vernon Sedlacek was not 

injured. 

Signe Sedlacek filed a personal injury action against 

Clayton Ahrens and his parents. Vernon Sedlacek filed an action 

to recover damages to his Cadillac. Both actions were filed in 

the district court of McCone County and consolidated for trial. 

Judge L. C. Gulbrandson tried the case without a jury. 

He entered findings of fact and conclusions of law: (1) that 

Clayton Ahrens was negligent in making a left turn off the highway without sinnaling; (2) Vernon Sedlacek was contributorily 

negligent in driving at a speed greater than was reasonable under 

the existing conditions and in failing to sound his horn prior to 

passing; (3) that Edward Ahrens was liable for the injuries 

suffered by Signe Sedlacek by providing a motor vehicle to Clayton 

Ahrens who was a person forbidden by statute to operate a motor 

vehicle because of his age; and, (4) that Signe Sedlacek suffered 

$4,800 damages by reason of her injuries. 

Judgment was entered in favor of Signe Sedlacek against 

Clayton Ahrens and his parents for $4,800, plus costs. A separate 

judgment was entered in favor of all defendants against Vernon 

Sedlacek denying damages to the Cadillac. 

Edward and Dorothy Ahrens, Clayton's parents, appeal 

from Signe Sedlacek's $4,800 judgment against them; Clayton Ahrens 

does not appeal from this judgment. Vernon Sedlacek crossappeals 

from the judgment denying him recovery for damages to the Cadillac. 

Clayton's parents contend that neither is liable for the 
injuries to Signe Sedlacek under the trial court's findings and 

conclusions. 

At the outset, we note there are no findings nor conclusions of the district court that support any liability on the 

part of Dorothy Ahrens. The district court so provided in the 

concluding paragraph of its findings: 

"WHEREFORE, let Judgment be entered in favor 

of the plaintiff, Signe Sedlacek, against the 

defendants, Clayton E. Ahrens and Edward A. 

Ahrens, in the sum of $4800 and her costs." 

The judgment was inadvertently entered against all defendants. The name of Dorothy Ahrens is ordered stricken from the 

judgment to conform to the findings and conclusions. 

Two statutes of Montana's Motor Vehicle Code are relevant 

to a discussion of Edward Ahrens' liability: 

Section 31-156, R.C.M. 1947, provides: 

"(1) No person shall cause or knowingly permit 

his child or ward under the age of eighteen (18) 

years to drive a motor vehicle upon any highway 

when such minor is not authorized hereunder or 

in violation of any provisions of this act." 

Section 31-127, R.C.M. 1947, provided at the time of the 

accident : 

"The board shall not issue any license hereunder: 

"(1) To any person, as an operator, who is under 

the age of sixteen (16) years, with these exceptions : 

"(b) the board may issue a restricted license as 

hereinafter provided to any person who is at 

least thirteen (13) years of age * * *." 

Edward Ahrens contends that he is not liable because 

(1) he did not knowinqly permit his son Clayton to drive the 

motor bike upon the highway in violation of section 31-156, and 

(2) the licensing statute does not forbid a minor below licensing 

age to drive a motor bike on private property. 

Edward's contentions miss the point. The basis of his 
liability is entrustment of the motor bike to a person not 

qualified to operate it on a public highway. Liability is not 

predicated on knowingly permitting Clayton to drive the motor 

bike on the highway in violation of section 31-156. The relevant 

basis of liability was expressed in this language by the district 

court : 

"The defendant, Edward Ahrens, by providing a 

motor vehicle to Clayton Ahrens who was a person 

forbidden by statute to operate a motor vehicle 

because of his age, is liable for injuries caused 

to the plaintiff, Signe Sedlacek, by the negligent 

operation of the motor bike by Clayton Ahrens." 

Licensing statutes such as section 31-127, R.C.M. 1947, 

prohibiting the issuance of an operator's license to a minor below 

a prescribed age are enacted under a state's police powers in 

the interests of public safety. One of the objects of such 

statutes is to protect users of the highways from inexperienced 

and immature drivers. Charbonneau v. MacRury, 84 N.H. 501, 153 

A. 457, 73 ALR 1266. Such statutes are legislative declarations 

that minors under licensing age are incompetent drivers and do not 

possess sufficient care and judgment to operate motor vehicles 

on the public highways without endangering the lives and limbs of 

others. Schultz v. Morrison, 91 Misc. Rep. 248, 154 N.Y.S. 257, 

aff'd 172 App.Div. 940, 156 N.Y.S. 1144; 7 Am Jur 2d, Automobiles 

and Highway Traffic B 107. 

The fact that such a minor deviates from the consent 

given and exceeds its limitations will not relieve the provider 

from liability. 8 Am Jur 2d, Automobiles and Highway Traffic 

§ 575; Shrout v. Rinker, 148 Kan. 820, 84 P.2d 974; Strout v. 

Polakewich, 139 Me. 134, 27 A.2d 911. Liability is not bottomed 

on agency or imputed negligence where the scope of consent or 

authority may play a significant role. Respondeat superior and 

the family purpose doctrine are alien considerations. The act 
of the provider himself is the basis of liability--placing an 

unlicensable minor in possession of an instrumentality which in 

his immature and incompetent hands becomes dangerous to other 

motorists the licensing statute is designed to protect. 

Counsel for defendants have cited three cases under 

similar facts where other courts have held the parent is not 

liable. Fitiles v. Umlah, 322 Mass. 325, 77 N.E.2d 212; Prewitt 

v. Walker, 231 Miss. 860, 97 S.2d 514; Marron v. Helmecke, 100 

Colo. 364, 67 P.2d 1034. All are distinguishable. Fitiles and 

Marron involved an agency relationship of employer-employee 

with scope of employment and consent the controlling elements in 

regard to liability. Prewitt involved imputed negligence arising 

from the parents' signatureson a minor's application for a driver's 

license. 

We affirm Signe Sedlacek's judgment against Edward Ahrens. 

The thrust of the crossappeal is that Vernon Sedlacek 

could not have been contributorily negligent because (1) the 

accident happened the way Sedlaceks testified and not the way 

Clayton said it did; (2) in any event, neither excessive speed 

nor failure to sound the horn prior to passing proximately caused 

the accident. 

The first point simply involves a conflict in the evidence. We have consistently held under such circumstances that 

this Court cannot substitute its weighing of the evidence for that 

of the trial court. When there is a conflict in the evidence, 

the findings of the trial court are presumed to be correct if 

supported by substantial credible evidence. City of Missoula v. 

Rose, - Mont . , 519 P.2d 146, 31 St.Rep. 191. 

The second point involves causation. Vernon Sedlacek's 

contention, as we understand it, is that Clayton Ahrensl negligence 

was the sole proximate cause of the accident and that neither 
excessive speed nor failure to sound his horn prior to passing 

on the part of Vernon Sedlacek contributed to the cause of the 

accident. 

Excessive speed by Sedlacek could have contributed as a 

proximate cause of the accident under the evidence. "But for" 

such excessive speed the Cadillac could have been stopped short 

of a collision, or at least short of the ditch. The same may be 

said of the horn. "But for" Sedlacek's failure to sound his horn 

sufficiently in advance of passing, Clayton would have been warned 

of the overtaking Cadillac in time to avoid turning in its path. 

The "but for" test in determining proximate cause has been approved 

in Montana. Sztaba v. Great Northern Ry., 147 Mont. 185, 411 

P.2d 379. 

Haney v. Mutual Creamery Co., 67 Mont. 278, 215 P. 656, 

does not support Sedlacek here. Haney simply held that under 

the evidence of plaintiff, he was not contributorily nelgigent as 

a matter of law and the question should be submitted to the jury. 

The judgments of the district court, as modified to eliminate Dorothy Ahrens, are affirmed. 

Justice 

We concur: 

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' Chief Jwtic-e 
Mr. Justice Wesley Castles dissenting in part and concurring 

in part: 

I concur in striking the name of Dorothy Ahrens from 

the judgment. I also concur in affirming the judgment on the 

crossappeal of Vernon Sedlacek. 

I dissent to the affirmance of the judgment against 

Edward Ahrens. The majority opinion holds the basis for liability as being negligent entrustment of a motor bike by the 

parent to a person disqualified from operating it on a public 

highway. In my view, the district court's conclusion relied 

upon by the majority is not a conclusion of negligent entrustment but rather one of vicarious liability. 

The majority reasons that: Since Clayton was under 

thirteen years of age and was legally incapable of obtaining a 

driver's license, he was incompetent as a matter of law from 

operating a motor vehicle and the Ahrens should have known such 

fact. However, when this statute is viewed together with section 31-125(a), R.C.M. 1947, which forbids the operation of a 

motor vehicle without a license "upon a highway in this state", 

it can be readily seen that the law declares a person under 

thirteen to be incompetent only for the purpose of driving upon 

a highway. There is no law in Iontana which prevents any unlicensed person from operating a motor vehicle upon private real 

property. It is common knowledge that children raised on Montana 

farms begin to drive motor vehicles and farm implements on and 

about the farm at an early age. The Ahrens' permission and 

knowledge of Clayton's use of the motor bike extended only to 

the farm premises, not to the highway. We would have an entirely different situation had the Ahrens provided Clayton with the 

motor bike for use on the highway or where such use could have 

been reasonably expected to occur. 

This Court has rejected the family purpose doctrine. 

Clawson v. Schroeder, 63 Mont. 488, 208 P. 924; Smith v. Babcock, 

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157 Mont. 81, 482 P.2d 1014. 

Plaintiffs also rely on Edward Ahrens' plea of guilty to 

a violation of section 31-156, R.C.M. 1947, which prohibits a 

person to knowingly permit his child or ward to drive a motor 

vehicle upon any highway when such minor is not authorized. 

While the plea is admissible as evidence of the proposition that 

Edward knowingly permitted Clayton to drive on the highway, it is 

not conclusive. Sikora v. Sikora, 160 Mont. 27, 33, 499 P.2d 

808. The district court found that "Clayton was using the Honda 

bike 

motor/at the time of the accident on the highway * * * without 

the knowledge of the parents, and against their instructions 

that he not go out upon the highway in using said motor bike." 

This finding is fully substantiated by the evidence. 

I would also hold as a matter of law that the evidence 

presented by plaintiffs does not present any issue of negligent 

entrustment. The sole evidence which could possibly lead to a 

finding of negligent entrustment is: the motor bike was in fact 

entrusted to Clayton; his parents knew Clayton was twelve years 

old; Clayton had had no training or instruction in the driving 

of a motor bike prior to it being entrusted to him ten days 

earlier; and, Edward plead guilty to a violation of section 31- 

156, R.C.M. 1947. Clayton was specifically instructed to only 

use the motor bike around the farm and not to go on the highway. 

The record is devoid of any evidence as to Clayton's habits or 

characteristics which would indicate that his parents knew or 

should have known that Clayton would violate their instructions 

or was unable to properly operate the Honda. The district court 

specifically negated the guilty plea by finding that the parents 

were without knowledge of Clayton's use of the motor bike on the 

highway. On these facts, viewed in a farm setting,there is not 

even an inference of negligence. 

U Justice 

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