Rodgers v. Freborg

240 N.W.2d 63, 1976 N.D. LEXIS 202
CourtNorth Dakota Supreme Court
DecidedMarch 24, 1976
DocketCiv. 9169
StatusPublished
Cited by12 cases

This text of 240 N.W.2d 63 (Rodgers v. Freborg) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodgers v. Freborg, 240 N.W.2d 63, 1976 N.D. LEXIS 202 (N.D. 1976).

Opinions

ERICKSTAD, Chief Justice.

On November 27, 1969, Nancy Rodgers was injured in an automobile accident. The driver of the car was Terry Freborg, a minor at the time. Terry’s father, Layton Freborg, owned the car and had signed the license application of Terry pursuant to the requirement of Section 39-06-08, N.D.C.C., as it then read:

“39-06-08. Application of minors. —The application of any person under the age of eighteen years for an instruction permit or operator’s license shall be signed and verified before a person authorized to administer oaths by the father, mother, or guardian, or, in the event there is no parent or guardian, then by another responsible adult who is willing to assume the obligation imposed under this chapter upon a person signing the application of a minor.” [Emphasis added.] N.D.C.C.

The obligation of the sponsor is imposed by Section 39-06-09, N.D.C.C., which read in pertinent part:

“39-06-09. Liability for negligence of minor — General.—Any negligence of a minor under the age of eighteen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence, [unless the minor has proven his own financial responsibility pursuant to Section 39-06 — 10].” N.D. C.C.

[Both sections were amended to replace the references to the age of eighteen years with the general term “minor.” There has been no other change in either section since the time of the accident which gives rise to this litigation.]

At the time of the accident, Terry Fre-borg was under the age of eighteen years. Following depositions of both Terry Fre-borg and Nancy Rodgers, counsel for both the plaintiff and the defendants stipulated to the absence of intoxication, willful misconduct, or gross negligence on the part of Terry. The District Court then dismissed the cause of action against him but withheld dismissing the action against the minor driver’s father, Layton Freborg.

[65]*65This cause of action arose before our decision in Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974), wherein we held the guest statute, Chapter 39-15, N.D.C.C., to be in violation of the North Dakota Constitution. In Johnson, we limited the decision to that case and “to claims for relief accruing on and subsequent to the date of this opinion, March 29, 1974.” Id., at 780.

Following dismissal of the action against the driver-son, counsel for Nancy and for the owner-father stipulated also to the absence of gross negligence, willful misconduct, or intoxication on the part of the owner-father, Layton Freborg. The trial court thereupon ordered a judgment dismissing Nancy’s cause of action against Layton.

The trial court was apparently cognizant of this Court’s decisions in Posey v. Krogh, 65 N.D. 490, 259 N.W. 757 (1934), and Rau v. Kirschenman, 208 N.W.2d 1 (N.D.1973), to the effect that a guest may not recover from a non-driving owner under a theory of negligent entrustment unless the owner was guilty of gross negligence in entrusting his automobile to the driver.

As a result of the agreements between the parties, the factual basis for entry of a summary judgment is established. This Court must determine a precisely framed matter of law: Did the Legislature by its later enactment, Section 39-06-09, N.D. C.C., intend to abrogate application of the guest statute, Chapter 39-15, N.D.C.C., where a licensed minor negligently operates a motor vehicle so as to injure his guest?

We conclude that the Legislature did not so intend, and we affirm the judgment of the trial court dismissing the causes of action against the Freborgs.

North Dakota’s guest statute provided in pertinent part that “[a]ny person who as a guest accepts a ride in any vehicle moving upon any of the public highways of this state, and who while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle.’’ [Emphasis added.] Section 39-15-02, N.D.C.C. By Section 39-15-03, N.D.C.C., the Legislature indicated that the guest law did not preclude “liability for injury to or death of a guest proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver, or person responsible for the operation of such vehicle.”

Nancy contends, however, that Section 39-06-09, N.D.C.C., supra, “creates a statutory cause of action against the sponsor of an application of a minor for a permit or license when such minor is guilty of ‘any negligence' when driving a motor vehicle.” Alternatively, she suggests that Section 39-06-09, N.D.C.C., impliedly amended the guest law which had been previously enacted.

Considering the language of Section 39-06-09, N.D.C.C., itself and its relation to the rest of the chapter, particularly Section 39-06 — 10, N.D.C.C., we do not believe that the Legislature intended to create a statutory cause of action against the sponsor free from the constraints of the guest law. Section 39-06-09, N.D.C.C., imputes any negligence of a minor when driving a motor vehicle upon a highway to his sponsor, but it does not explicitly state that the sponsor will be liable for any negligence of the minor. The sponsor’s liability, we believe, must be established through the special statute applicable to the facts of this case— the guest statute.

Clearly, the Legislature intended by these sections to preclude issuing permits and licenses to members of a class of the population that is ordinarily judgment-proof. The Utah Supreme Court concluded that Utah’s statute, similar to the above sections, “was enacted to protect the public by requiring proof of financial responsibility in behalf of persons under the age of eighteen years before issuance of a driver’s license.” Rogers v. Wagstaff, 120 Utah 136, 232 P.2d 766, 769, 26 A.L.R.2d 1316, 1319 (1951).

As we have concluded that the Legislature did not intend to create a new cause of action by enacting Section 39-06-09, N.D. C.C., so, too, we do not believe it intended to impliedly amend the guest law.

[66]*66S.L.1955, Ch. 251, was a Legislative Research Committee bill which substantially revised North Dakota statutes concerning drivers’ licenses. Sections 39-06-08, -09, and -10, N.D.C.C., originated in Sections 8, 9, and 10 of the bill. The guest law had been previously passed; see S.L.1931, Ch. 184. Thus, the chronological setting for an implied amendment of the guest law exists.

Courts hesitate to find an implied amendment of a previous statute.

“ * * * Amendments by implication, like repeals by implication, are not favored and will not be upheld in doubtful cases. The legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.
“Amendment by implication is identical ' with repeal by implication when only part of the prior statute is repealed.

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Rodgers v. Freborg
240 N.W.2d 63 (North Dakota Supreme Court, 1976)

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Bluebook (online)
240 N.W.2d 63, 1976 N.D. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodgers-v-freborg-nd-1976.