Leonard v. Wilson

Decision Date03 May 1991
Docket NumberNo. 88-843,88-843
Citation238 Neb. 1,468 N.W.2d 604
PartiesThomas P. LEONARD, Appellant, v. Debra A. WILSON and Frank Burghardt, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Motor Vehicles: Liability: Proof. In order to establish the applicability of the family purpose doctrine, it must be proven that the person sought to be charged with liability was the head of his or her family, that he or she furnished the car for the use and pleasure of the family, that the driver of the vehicle was a member of that family, and that the driver was, at the time of the accident, using the car for the purpose for which it was furnished and with the authority, expressed or implied, of the head of the family.

2. Directed Verdict. Where the facts adduced to sustain an issue are such that reasonable minds cannot differ and can draw but one conclusion therefrom, the issue should be decided as a matter of law.

3. Directed Verdict. In considering the evidence for the purpose of a motion for a directed verdict, the party against whom the motion is made is entitled to have the benefit of every inference which can reasonably be drawn from the evidence.

4. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for a directed verdict is made, the case may not be decided as a matter of law.

5. Records: Appeal and Error. It is incumbent upon the complaining party to present a record which supports the error assigned, and in the absence of such a record establishing the claimed error, the decision of the lower court will be affirmed.

Frank Meares, Omaha, for appellant.

Joseph Lopez Wilson, Omaha, for appellees.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Following a jury trial, plaintiff obtained a judgment against defendant Debra A. Wilson arising out of a motor vehicle accident. However, notwithstanding the absence of any verdict or judgment in the record as to the defendant Frank Burghardt, it is apparent from plaintiff's motion for a new trial that the jury rendered a verdict in favor of defendant Burghardt. Plaintiff appeals and assigns as error (1) failure of the trial court in not directing a verdict in favor of the plaintiff against Burghardt under the family purpose doctrine, (2) failure of the trial court to direct a verdict in favor of the plaintiff against Burghardt on the theory of negligent entrustment, and (3) submission of an erroneous jury instruction. We affirm.

On July 10, 1987, Thomas P. Leonard, the plaintiff, while driving his 1979 Harley-Davidson motorcycle, was involved in a collision with a 1980 Pontiac Sunbird owned by the defendant Frank Burghardt and being driven by his stepdaughter, Debra A. Wilson, in Omaha, Nebraska. There was no real question as to the negligence and liability of the defendant Wilson. The main issue in the case involved the responsibility of defendant Burghardt under the family purpose doctrine.

It is undisputed that Burghardt was the head of the household in which Wilson, a minor, resided. There is also no question that the automobile was maintained for the use, pleasure, and convenience of the members of that household. It was admitted that Wilson had driven this particular automobile on a number of occasions before this accident, but she was only permitted to drive when accompanied by an adult because she had only a learner's permit to drive.

On this particular day, Wilson, with permission of Burghardt, had driven the automobile earlier in the day, accompanied by her sister-in-law, to take the eye examination portion of the driving test, but for some unexplained reason she was not permitted to take the test that day. She and her sister-in-law returned home, and Wilson placed the car keys on the television set.

That night, Wilson took the Sunbird to pick up her boyfriend, and it was during that time that she had the accident. Neither Burghardt nor his wife was home at the time, and Wilson had received no specific permission from either of them to take the car.

We consider the first two assignments of error together because they both involve the question of permission. The family purpose...

To continue reading

Request your trial
16 cases
  • State v. Hirsch, S-92-611
    • United States
    • Supreme Court of Nebraska
    • 28 Enero 1994
    ...case may not be decided as a matter of law. Id.; Marple v. Sears, Roebuck & Co., 244 Neb. 274, 505 N.W.2d 715 (1993); Leonard v. Wilson, 238 Neb. 1, 468 N.W.2d 604 (1991). Moreover, in reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on th......
  • Nichols v. Busse, S-91-108
    • United States
    • Supreme Court of Nebraska
    • 23 Julio 1993
    ...may not be decided as a matter of law. Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192 (1992); Leonard v. Wilson, 238 Neb. 1, 468 N.W.2d 604 (1991). On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the materi......
  • Young v. Beck
    • United States
    • Supreme Court of Arizona
    • 5 Abril 2011
    ...602 (2005); Cox v. Rewis, 207 Ga.App. 832, 429 S.E.2d 314, 316 (1993); Keeney v. Smith, 521 S.W.2d 242, 243 (Ky.1975); Leonard v. Wilson, 238 Neb. 1, 468 N.W.2d 604, 606 (1991); Madrid v. Shryock, 106 N.M. 467, 745 P.2d 375, 377 (1987); Loy v. Martin, 156 N.C.App. 622, 577 S.E.2d 407, 410 (......
  • Starr v. Hill, W2009–00524–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • 31 Agosto 2011
    ...prove that “the person sought to be charged with liability was the head of his or her family.” Id. at *5 (quoting Leonard v. Wilson, 238 Neb. 1, 468 N.W.2d 604, 606 (1991)). The father and the boy's mother were divorced and living apart at the time of the accident, and the boy resided with ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT