CUSHING v. BERNHARDT, 210 Neb. 272 (1981)

313 N.W.2d 688

MARY CUSHING, MOTHER AND NEXT FRIEND OF KEVIN CUSHING, APPELLANT, v. TROY BERNHARDT, A MINOR, APPELLEE.

No. 43682.Supreme Court of Nebraska.
Filed December 28, 1981.

Appeal from the District Court for Scotts Bluff County: ALFRED J. KORTUM, Judge. Affirmed.

Page 273

Jim Zimmerman of Atkins, Ferguson, Hahn, Zimmerman Carney for appellant.

Van Steenberg, Brower, Chaloupka, Mullin
Holyoke for appellee.

Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

PER CURIAM.

Kevin Cushing was a passenger in an automobile operated by Troy Bernhardt on May 24, 1978, when the automobile struck a tree. This action by his next friend was brought against Bernhardt to recover the damages resulting from the injuries Kevin sustained in the accident. The trial court sustained a demurrer and dismissed the petition because it failed to allege gross negligence.

The appeal presents only the question of whether the guest statute, Neb. Rev. Stat. § 39-6,191 (Reissue 1978), is unconstitutional. Our decisions in Kreifels v. Wurtele, 206 Neb. 491, 293 N.W.2d 407 (1980), and Botsch v. Reisdorff, 193 Neb. 165, 226 N.W.2d 121
(1975), are controlling on this issue.

The judgment of the District Court is, therefore, affirmed.

AFFIRMED.

KRIVOSHA, C.J., dissenting.

For the reasons more particularly set out in my dissent in Kreifels v. Wurtele, 206 Neb. 491, 293 N.W.2d 407 (1980), I likewise dissent in this case. I would hold the guest statute to be in violation of the Constitution of the State of Nebraska and the Constitution of the United States.

I am authorized to state that Judges McCown and White join in this dissent.

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