### NO. 12722 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

VERNON D. SEDLACEK,CrossAppellant, and SIGNEM. SEDUCEK, Plaintiff and Respondent,

EDWARDA. AHRENS, DOROTHY G. AHRENS and CLAYTON E. AHRENS, Defendants andAppellants.

Appeal from: District Court of the SeventhJudicial District, Honorable

### L. C. Gulbrandson,Judgepresiding. Counsel of Record: ForAppellants : 

### Hutton, Sheehyand Cromly, Billings,Montana JohnC. Sheehy argued,Billings,Montana For Respondent: Morrison, Ettien and Barron,Havre,Montana

Jo

### Chan Ettien argued,Havre,Montana

Submitted: 

### November 14, 1974 Decided: 

## DEC30

# '414 Filed: 

# EC30

## $954Mr. JusticeFrank I. Haswell delivered the Opinion of the Court. Following an automobile-motor bike accident, the automobile passenger sued theminor motorcyclist and his parents for her personal injuries and the automobile driver sued ina separate action for damages tohiscar. Two judgments were entered inthe districtcourt of McCone county following a consolidated nonjury trial: (1)Judgment for the passenger against alldefendants. (2) Judgment against the driver in favor of alldefendants. The parents of theminor motorcyclist appeal from the firstjudgment and the driver crossappeals from the second judgment. On July 28, 1966, atabout 4:00 p.m. Clayton Ahrens,

a 12year old, was driving a Honda motor bike south on Montana Route 12inMcCone County. Vernon Sedlacek was driving a Cadillac, inwhich hiswife Signe was a passenger, inthe same direction behind the motor bike. As the Cadillac approached a point on the highway about 600 feetbefore reaching the accident scene, the Cadillac slowed from about 70milesper hour toabout 60 miles per hour and then picked up speed asit prepared topass the motor bike. Clayton Ahrens did not signal his intent toturn left and Vernon Sedlacek did not sound nis horn until he was inthe act of passing. As Clayton Ahrens was making his leftturn, Vernon Sedlacek applied the brakes and pulled lefton tothe shoulder of the highway causing the ~adillacto roll. It came torest on itstopwith the front end on the pavement and the rear end half inthe leftborrow pit. It appeared from marks on the Cadillac that themotor 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 usingit on Montana Route 12without the knowledge of hisparents, Edward and Dorothy Ahrens, and against their instructions that he not go out upon the highway when using themotor bike. Signe Sedlacek received personal injuries inthe 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 torecover damages tohis 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 inmaking a left turn off the highway without sinnaling; (2) Vernon Sedlacek was contributorily negligent indriving ata 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 toClayton Ahrens who was a person forbidden by statutetooperate a motor vehicle because of his age; and, (4) that Signe Sedlacek suffered $4,800 damages by reason of her injuries. Judgment was entered infavor of Signe Sedlacek against Clayton Ahrens and his parents for $4,800, plus costs. A separate judgment was entered infavor of alldefendants againstVernon Sedlacek denying damages tothe Cadillac. Edward and Dorothy Ahrens, Clayton's parents, appeal from Signe Sedlacek's $4,800 judgment against them; Clayton Ahrens does not appeal from thisjudgment. Vernon Sedlacek crossappeals from thejudgment denying him recovery for damages tothe Cadillac. Clayton's parents contend that neither is liable for theinjuries to Signe Sedlacek under the 

### trial court's findings and conclusions. Atthe outset, we note there areno findings nor conclusions of the districtcourt that support any liability on the part of Dorothy Ahrens. The districtcourt soprovided inthe concluding paragraph of 

### its findings: "WHEREFORE, letJudgment be entered infavor of the plaintiff, Signe Sedlacek, against the defendants, Clayton E. Ahrens and Edward A. Ahrens, inthe 

### sum of $4800 and her costs." The judgment was inadvertently entered against alldefendants. The name of Dorothy Ahrens is ordered stricken from the judgment toconform tothe findings and conclusions. Two statutesof Montana's Motor Vehicle Code arerelevant toa discussion of Edward Ahrens' liability: Section 31-156, R.C.M. 1947, provides: "(1) No person shallcause orknowingly permit his child or ward under the age of eighteen (18) years todrive a motor vehicle upon any highway when suchminor isnot authorized hereunder or inviolation of any provisions of this act." Section 31-127, R.C.M. 1947, provided atthe 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 toany person who is at least thirteen (13) years of age 

## * * 

## *." Edward Ahrens contends that he isnot liablebecause (1)he did not knowinqly permit his son Clayton todrive the motor bike upon the highway inviolation of section 31-156, and

(2) the licensing statutedoes not forbid a minor below licensing age todrive a motor bike on private property. Edward's contentions

### missthe point. The basis of his

### liability is entrustment of themotor 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: 

### "Thedefendant, 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 ClaytonAhrens." 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, 84N.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. Schultzv. Morrison, 91Misc. Rep. 248, 154 N.Y.S. 257, aff'd 172App.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 limitationswill 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 

### familypurpose 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 factswhere other courts have held the parent is not liable. Fitiles v. Umlah, 322Mass. 325, 77 N.E.2d 212; Prewitt

v. Walker, 231Miss. 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 firstpoint 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 ClaytonAhrensl negligence was the sole proximate cause of the accident and that neitherexcessive speed nor failureto sound his horn prior topassing

on the part of Vernon Sedlacek contributed tothe 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 atleast short of the ditch. The same may be said of the horn. "But for" Sedlacek's failureto sound his horn sufficiently inadvance of passing, Clayton would have been warned of the overtaking Cadillac intime to avoid turning in its path. The "but for" test indetermining proximate cause has been approved inMontana. 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 tothejury. The judgments of the districtcourt, asmodified toeliminateDorothy Ahrens, are affirmed.

Justice 

### We concur:

; c .- -.,. -

,,,, 

### -,;~-a-i,~~----=--~-%--h-

'Chief Jwtic-e

### Mr. JusticeWesley Castles dissenting in part and concurring in part:

### I concur in striking the name of DorothyAhrens 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. Inmy 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 isviewed together with section 31-125(a), R.C.M. 1947,which forbids the operation of a motor vehicle without a license "upona 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 drivemotor 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. Clawsonv. Schroeder, 63

### Mont. 488, 208 P. 

### 924; Smith v. Babcock, -8-157 Mont. 81, 482 P.2d 1014. Plaintiffs alsorely on Edward Ahrens' plea of guilty to

a violation of section 31-156, R.C.M. 1947, which prohibits a person toknowingly permit his child or ward todrive a motor vehicle upon any highway when such minor is not authorized. While the plea is admissible asevidence of the proposition that Edward knowingly permitted Clayton todrive on the highway, it is not conclusive. Sikora

### v. Sikora, 160 Mont. 27, 33, 499 P.2d 808. The districtcourt 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 inusing said motor bike." This finding is fully substantiated by the evidence. I would alsohold asa matter of law that the evidence presented by plaintiffs does not present any issue of negligent entrustment. The sole evidence which could possibly lead toa finding of negligent entrustment is: the motor bike was in fact entrusted toClayton; his parents knew Clayton was twelve years old; Clayton had had no training or instruction inthe driving of a motor bike prior to it being entrusted tohim ten days earlier; and, Edward plead guilty toa violation of section 31- 156, R.C.M. 1947. Clayton 

### was specifically instructed toonly

use the motor bike around the farm and not togo on the highway. The record isdevoid of any evidence as toClayton's habits or characteristicswhich would indicate that his parents knew or should have known that Clayton would violate their instructions

or was unable toproperly operate the Honda. The districtcourt specifically negated the guilty plea by finding that the parents

were without knowledge of Clayton's use of themotor bike on the highway. On these facts, viewed ina farm setting,there is not

even an inference of negligence.



### U Justice 

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