Caldwell v. Armengol , 587 P.2d 135 ( 1978 )

WILKINS, Justice:

Plaintiffs brought this action to recover for the wrongful death of their daughter, Catherine Anne, allegedly resulting from the negligent operation of a vehicle by T. J. Armengol in which the daughter was a passenger. The complaint also alleges negligence on the part of Ted Armengol and Elizabeth Armengol, parents of T. J. Ar-mengol, for knowingly and, negligently permitting their son to drive the automobile without a valid driver’s license.

Defendant Elizabeth Armengol moved for a summary judgment in her favor and filed an affidavit stating that she is not and has never been an owner of the automobile involved in the accident and did not sign an application for her son’s driver’s license.

The District Court ruled that as the incident occurred in the State of Idaho, laws of that state apply,¹ and granted defendant’s motion for summary judgment, dismissing the complaint against Elizabeth. Plaintiffs appeal.

For the purposes of the hearing on the motion for summary judgment, Elizabeth’s deposition was published. In that deposition Elizabeth stated that T. J. Armengol was 17 years old and that he had applied for a driver’s license in Idaho and she assumed that at the time of the accident a license had been issued. She also testified that during the summer of 1976 Ted Armengol and T. J. Armengol were working at Bear Lake selling real estate. The father and son were staying at Fish Haven, Idaho. On Friday prior to the accident Elizabeth drove the Honda automobile to Bear Lake. The next day the Honda was taken to the real estate office by Ted Armengol. On Saturday evening T. J. Armengol returned to the trailer where the Armengols lived, changed his clothes and stated he was going to a barbecue with some other young people. Elizabeth further stated that she did not know that T. J. had the automobile, but apparently he or plaintiffs’ daughter had obtained the keys from Ted Armengol. Early Sunday morning the Honda automobile was involved in a one-car accident wherein the daughter of the plaintiffs was killed.

Elizabeth stated in her deposition that the son had driven the Honda “a couple of times” prior to the accident with her knowledge.

Applicable Idaho statutes are as follows:

Section 49-338, Idaho Code Annotated, 1947, states:

Permitting unauthorized minor to drive. —No person shall cause or knowingly permit his child or ward under the age of 18 years to drive a motor vehicle upon any highway when such minor is not authorized hereunder or in violation of any of the provisions of this act.

Section 49-339, Idaho Code Annotated, 1947, states:

Permitting unauthorized person to drive. —No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the provisions of this act.

Plaintiffs do not dispute the fact that Elizabeth was not the owner of the car. Whether T. J. had a valid Utah or Idaho driver’s license, and if not, whether Elizabeth knew he had no license, but gave her express or implied permission to drive are in dispute, and are material in view of Idaho Code Annotated, Sec. 49-338, cited above.

As material facts are in dispute, the Court erred in granting the summary judgment.² The judgment of the District Court is reversed, and this ease remanded for further proceedings.

ELLETT, C. J., and CROCKETT, J., concur in result. MAUGHAN, J., does not participate herein. HALL, J., having disqualified himself, does not participate herein.

1 . See Hudson v. Decker, 7 Utah 2d 24, 317 P.2d 594 (1957).

2 . Rule 56, Utah Rules of Civil Procedure.