I respectfully dissent, believing the main opinion to be in error in appraising the record and in construing the decision of the trial court, as follows:
The basis for the opinion is grounded on the Idaho Code, 49-338, that simply says no parent "shall cause or knowinglypermit" his child to drive without a license. The main opinion then bases its decision of reversal on: "whether Elizabethknew (emphasized in the opinion) her son had no license, but gave her express or implied permission to drive are in dispute." I believe this conclusion cannot be gleaned from the undisputed record which clearly shows that Elizabeth was not the owner of the car allegedly driven by her son; did not have possession of it immediately prior to the time he obtained it before the accident; she still had her keys to the car, she clearly did not give him express permission to drive the car, *Page 137 didn't know he was driving it; that the boy's father had possession of the car at his office, and there is no evidence of any "implied" permission to undertake the trip that resulted in the fatality. Definitely there was no express permission, and under the uncontradicted facts adduced in the discovery process, to say an "implied" permission is a genuine issue of fact here, is to indulge in speculation dehors the record.
Besides, although there is a minute entry by the Clerk that indicated at an oral hearing that the Court said Idaho law governed, it is highly significant that the lower court'swritten judgment did not mention the Idaho law, and neither did counsel for plaintiff mention Idaho law, but devoted a lengthy brief in opposition to the motion for summary judgmentsolely to the two sections in the Utah statute which he considered the only pertinent basis for his motion. The trial judge's summary judgment was on the undisputed facts, and it seems obvious that "implied permission" was not one that he considered to be the subject of debate, — even under the Idaho statute, had he mentioned it.
Furthermore, the main opinion emphasizes whether Elizabethknew her son did not have a license as a material fact to be determined. That knowledge is not so important, or at least not more important than the "permission" to drive factor. The statute says nothing about "implied" permission, although it may be conceded that in a proper case it could be so construed, — but here, where the facts show that the "permission" to drive was given to the boy by someone else, very apparently by his father, but at best by himself, makes it impossible in logic and fact, for Elizabeth to have given even "express" permission, let alone "implied" permission, — which issue's significance flew out the window on the advent of someone else, — even a thief, having given a permission, all of which took Elizabeth out of the statute.
It would seem that the well known presumption of correctness of the trial court's rulings, absent clear abuse of discretion, should maintain here by way of affirmance.