Kreifels v. Wurtele , 206 Neb. 491 ( 1980 )

White, J.

Plaintiff, Jimmy Kreifels, a minor, was injured while riding as a passenger on a motorcycle operated by defendant Randy Wurtele, also a minor, on June 22, 1975. Jimmy was 13 years of age and Randy was 14 years of age on the date of the accident. The motorcycle was owned by the defendant Donald Wurtele, Randy’s father.

Leonard J. Kreifels, also known as Jimmy Kreifels, by his father and next friend, Leonard Kreifels, and Leonard Kreifels, individually, brought suit in the District Court for Otoe County, Nebraska, for the injuries sustained in the accident. At the conclusion of the plaintiffs’ evidence, the court dismissed their petition. Plaintiffs appeal. We reverse and remand.

Assuming, as we must, the truth of plaintiffs’ evidence and giving the plaintiffs the benefit of all inferences arising from the evidence, Bassinger v. Agnew, ante p. 1, 290 N.W.2d 793 (1980), the facts are these. On the morning of June 22, 1975, the plaintiff Jimmy Kreifels was helping his father in the shop of the family farm. Five school friends arrived at the farmstead on four motorcycles. The companions requested the plaintiff Jimmy Kreifels to accompany them to Centennial Lake to determine whether the lake was warm enough for swimming. Jimmy’s father gave him permission to accompany the boys and Jimmy mounted the motorcycle of the defendant Randy Wurtele as a passenger. The lake was some 3 to 4 miles from the Kreifels’ farm by gravel county roads. The route crossed Highway 128 at an intersection 2 miles west of Paul, Nebraska. The trip to the lake was accomplished without incident and the boys remained about 20 minutes. On the trip to the lake, the motorcycles traveled together. On the return trip, Randy sped ahead of the other cyclists and traveled at a speed of 45 to 50 miles per hour. At the intersection of the county road and Highway 128, the highway was protected by stop signs on each side of the county road. A brush patch interferes with the vision of persons traveling on the county road insofar as their ability to see traffic approaching from the east on the highway. The stop sign was visible for at least % mile by traffic on the county road. A “Stop Ahead” sign is located approximately 100 yards from the intersection. As the motorcycle approached the intersection, Jimmy, who was leaning forward and seated directly behind Randy, yelled to Randy to stop. Randy continued through the stop sign without diminishing his speed and crashed into the passenger side of an automobile traveling west on the highway, operated by Al P. Kreifels, a distant relative of the plaintiffs.

Plaintiffs assign as error: (1) The court erred in failing to find unconstitutional the guest statute, Neb. Rev. Stat. § 39-6,191 (Reissue 1978); (2) The court erred in finding that the plaintiffs had failed in their burden of establishing gross negligence; (3) The court erred in directing a verdict in favor of Donald Wurtele on the ground that the plaintiffs failed to prove the motorcycle was being used as a family-purpose vehicle; (4) The court erred in finding that Donald Wurtele could not be held liable in the absence of a finding of gross negligence against the driver, Randy Wurtele; and (5) The court erred in failing to submit the plaintiffs’ case against Donald Wurtele on the theory of negligent entrustment.

By the first assignment of error, plaintiffs invite us to reconsider our decision in Botsch v. Reisdorff 193 Neb. 165, 226 N.W.2d 121 (1975), upholding the constitutionality of the guest statute. As less than a constitutional majority of this court is willing to reconsider that decision, a discussion of the arguments made by the plaintiffs would be fruitless. We adhere to our previous ruling.

We next consider whether there was evidence of gross negligence. The defendants would have us characterize the negligence of the defendant Randy Wurtele as momentary and, therefore, not gross. See, Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977); Callen v. Knopp, 180 Neb. 421, 143 N.W.2d 266 (1966).

The evidence discloses that the stop sign was visible; the vision of traffic approaching from the east was impaired; a warning was given at a time sufficient for the defendant to stop at the stop sign; and the driver disregarded the warning. There was sufficient evidence to submit the issue of gross negligence to the jury. Robinson v. Hammes, 173 Neb. 692, 114 N.W.2d 730 (1962). An oral warning and a disregard of the warning, when sufficient time exists to avoid the danger, sufficiently distinguishes the facts in this case from the momentary inattention cases and makes them inapplicable. The assignment is meritorious and requires reversal.

The next assignment of error relates to the family-purpose doctrine. In their petition and amended petition, the plaintiffs alleged:

The defendant Donald Wurtele is and was at all times relevant hereto, the owner of a 1974 Yamaha motorcycle. . . . Randy D. Wurtele was the minor son of Donald Wurtele. . . . Donald Wurtele was the head of the household and maintained said motorcycle for the general use, pleasure, convenience, necessity and purpose of said family.

The defendants, by answer and amended answer to the petition, admitted paragraph 2. (There does not appear to be an answer to the amended petition.)

The following direct examination of Randy Wurtele was part of plaintiffs’ case:

Q. And in general did your father give you permission to operate the 125cc on the roads around your farm?

A. No.

Q. You used it with his knowledge?

A. Yes.

Q. On the roads around your farm?

A. If he let me — if he said I could, yes.

Q. And he did from time to time do that I take it?

A. Once in awhile.

In spite of the pleadings and this testimony, the trial court concluded that the defendant Randy Wurtele was not shown to have operated the motorcycle with the express or implied permission of his father. We disagree. In Garska v. Harris, 172 Neb. 339, 109 N.W.2d 529 (1961), an adult residing with his father was involved in an accident while operating the father’s pickup. Although the vehicle had, on numerous occasions, been operated by the son in transporting his father, on the date in question “he took the pickup truck without his father’s permission,” Id. at 347, 109 N.W.2d at 534, although he normally requested permission to drive the pickup. The father testified “that the trip made on October 30, 1958, by his son James was for James’ own benefit, and with which he had nothing to do.” Id. at 348, 109 N.W.2d at 534. The court, quoting from Linch v. Dobson, 108 Neb. 632, 188 N.W. 227 (1922), held at 348-49, 109 N.W.2d at 534-35:

Where the head of a family has purchased or maintains a car for the pleasure of his family, he is, under the so-called “family purpose” doctrine, held liable for injuries inflicted in the negligent operation of the car while it is being used by members of the family for their own pleasure, on the theory that it is being used for the purpose for which it is kept, and that in operating it the member of the family is acting as the agent or servant of the owner.

Under the facts of that case, the question of family purpose was for a jury.

In the instant case, there is at least an inference of approval since Randy testified that he used the motorcycle “If he [his father] let me — if he said I could, yes.” The inference of implied approval of use of a family vehicle arises necessarily when prior use of the vehicle is established and certainly when there is no proof or inference of express disapproval. The assignment is meritorious.

By the fourth assignment of error, plaintiffs invite us to reconsider our recent decision in Wagner v. Mines, 203 Neb. 143, 277 N.W.2d 672 (1979). We are not persuaded, given the continued constitutional viability of the guest statute, § 39-6,191, that the rationale of that decision is faulty. The assignment is without merit.

As the case must be retried, there is no necessity to pass on the plaintiffs’ last assignment of error except to note that, since this is a guest case, in order to prove negligent entrustment against the defendant father, the acts of the entrusted driver must be shown to be grossly negligent.

The case is reversed and remanded for new trial.

Reversed and remanded for

NEW TRIAL.