HATELY V. HAMILTON, 1970-NMCA-092, 81
N.M. 774, 473 P.2d 913 (Ct. App. 1970)
JEFFREY DEAN HATELY, a Minor, by his
Father and Next
Friend, Eugene R. Hately; and EUGENE R. HATELY,
Individually, Plaintiffs-Appellants,
vs.
JAMES HAMILTON and HELEN HAMILTON, Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1970-NMCA-092, 81 N.M. 774, 473 P.2d 913
APPEAL FROM THE DISTRICT COURT OF
VALENCIA COUNTY, LARRAZOLO, Judge
Petition for Writ of Certiorari Denied
August 20, 1970
WILLIAM G. GILSTRAP, Esq., RICHARD E.
RANSOM, Esq., SMITH, RANSOM & DEATON, Albuquerque, New Mexico, Attorneys
for Appellant.
ROBERT G. McCORKLE, Esq., RODEY,
DICKASON, SLOAN, AKIN & ROBB, Albuquerque, New Mexico, Attorneys for
Appellee.
JAMES T. PAULANTIS, IDEN & JOHNSON,
Albuquerque, New Mexico, Attorneys for Appellee.
SPIESS, Chief Judge, wrote the opinion.
LaFel E. Oman, J., William R. Hendley, J.
Spiess, Chief Judge, Court of Appeals.
{1} The plaintiff, Eugene R.
Hately, individually and as next friend of Jeffrey Dean Hately
{*775} (Jeffrey) a minor, has appealed from a
summary judgment in favor of defendants, James Hamilton and Helen Hamilton,
parents of Charles Hamilton (Charles), a minor. We affirm the judgment. The
complaint sought damages on account of personal injuries sustained by Jeffrey
which resulted from a motorcycle accident. At the time of the occurrence
Jeffrey was a guest rider upon the motorcycle which was owned and operated by
Charles.
{2} It appears to be conceded
by the plaintiff that § 64-24-1, N.M.S.A. 1953, (the guest statute) is a bar to
any action against Charles. He is charged only with ordinary negligence. The
action, consequently, was brought solely against James and Helen Hamilton,
Charles' parents. The grounds upon which plaintiff would impose liability upon
defendants are hereinafter discussed.
{3} The basic issues before
us involve (1) the determination of questions of law upon undisputed facts, and
(2) whether upon the record before the court a triable issue was presented.
{4} The accident occurred at
the intersection of U.S. Highway 66 and State Road 53 in the area of Grants,
New Mexico. The motorcycle operated by Charles and upon which Jeffrey was
riding was traveling in an easterly direction upon the inside lane of the two
eastbound lanes of Highway 66 and proceeding toward the intersection of the
highways. An automobile driven by one Russell had entered the intersection
before this point was reached by the motorcycle. Russell crossed both eastbound
lanes of Highway 66 and had proceeded into the median strip which divided the
opposing traffic lanes of Highway 66 and there came to a stop preparatory to
turning west on Highway 66. Russell was delayed because of westbound traffic.
The rear portion of his car as it was stopped extended two feet into the east
lane of Highway 66, the lane upon which the motorcycle was traveling.
{5} As the motorcycle
approached the intersection and the Russell car its brakes were applied and the
motorcycle began to slide or skid; it then fell with the boys and slid along
the highway in front of them leaving some 137 feet of skid marks. Jeffrey
struck the rear of the Russell car and as a result sustained the injuries upon
which the complaint is based.
{6} It is conceded that at
the time of the accident Charles was fifteen years of age and his mother, the
defendant, Helen Hamilton, in accordance with § 64-13-44, N.M.S.A. 1953, had
signed an operator's license thereby assuming the obligations imposed by the
Act.
{7} It is further conceded
that the motorcycle was purchased by defendant, James Hamilton and given to
Charles and he was permitted by his parents to operate it.
{8} It is undisputed that the
motorcycle was rated as a six horsepower vehicle and its use by Charles was
violative of the provisions of § 64-13-40, N.M.S.A. 1953.
{9} The plaintiff asserts the
following three points support reversal of the summary judgment. (1) In
accordance with § 64-13-44, N.M.S.A. 1953, negligence on the part of Charles is
imputed to his parent or parents who signed his application for driver's
license. (2) Liability is imposed on the parents under the family purpose
doctrine. (3) A fact issue was present as to whether the negligence of the defendants
(parents) in giving a six horsepower motorcycle to Charles and permitting him
to operate it in violation of the provisions of his license (§ 64-13-40, supra)
was a proximate cause of Jeffrey's injuries, precluding the granting of summary
judgment.
{10} The parties appear to be
in disagreement on whether a factual issue is disclosed by the record as to
negligence on the part of Charles, and, if an issue as to such negligence is
disclosed, whether there is evidence that this negligence was a proximate cause
of the accident. For the purpose of our review we assume that the record does
disclose an issue of fact relating to ordinary negligence on the part of
Charles and likewise a fact issue as to a causal connection
{*776}
between Charles' negligence and Jeffrey's injuries.
{11} It is undisputed that
defendant, Helen Hamilton, Charles' mother, signed his application for license
to the end that § 64-13-44, supra, is applicable. This Act reads, in part:
"(b) Any negligence or willful misconduct of a minor under
the age of eighteen [18] 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 or willful misconduct
except as otherwise provided in the next succeeding paragraph."
"(c) In the event a minor deposits or there is deposited
upon his behalf proof of financial responsibility in respect to the operation of
a motor vehicle owned by him, or if not the owner of a motor vehicle, then with
respect to the operation of any motor vehicle, in form and in amounts as
required under the motor vehicle financial responsibility laws of this state,
then the division may accept the application of such minor when signed by one
[1] parent or the guardian of such minor, and while such proof is maintained
such parent or guardian shall not be subject to the liability imposed under the
preceding paragraph of this section."
{12} Plaintiff argues that
this statute imposes responsibility for a minor's negligence upon the person
signing the application for license and the fact that the minor is absolved
from liability under the Guest Act (§ 64-24-1, N.M.S.A. 1953) does not relieve
the signers of financial responsibility for damages. With this contention we do
not agree.
{13} The Act, § 64-13-44,
supra, was, in our opinion, designed as a means of providing financial
responsibility for the minor. Consequently, liability on the part of the minor
would be requisite to the imposition of a liability upon the signers. Paragraph
(c) of the Act would lend support to this conclusion in that the minor's
deposits, if made under (c), clearly could not be subjected to a claim in the
absence of liability on the part of the minor.
{14} Identical to our case
and coming to the same conclusion is McHugh v. Brown, 50 Del. 154, 125 A.2d 583
(1956). In this case it was held that the Delaware Guest Act barred the action
against the minor operator, and as a consequence an action or claim against the
persons signing the minor's license application was also barred. The statute
making the signers of the minor's application liable for his negligence and
which was considered in
McHugh is identical to our Act (§ 64-13-44,
supra). Compare McCants v. Chenault, 98 Ohio App. 529, 130 N.E.2d 382 (1954).
In view of our holding that the signer of the license application is not liable
for damages under these circumstances we need not consider plaintiff's
contention that the execution of the application by the wife, Helen, likewise
bound the husband, James.
{15} We consider next the
applicability of the family purpose doctrine in this situation. We are called
upon to determine whether the Guest Act bars an action under the family purpose
doctrine. Although the motorcycle was owned by Charles, the family purpose
doctrine was invoked by plaintiff under Pouliot v. Box,
56 N.M. 566,
246 P.2d
1050 (1952).
{16} In our opinion Cortez v.
Martinez,
79 N.M. 506,
445 P.2d 383 (1968), supplies the answer to the issue
presented under this point. In
Cortez action was brought against Luis
Martinez, father of Francis Martinez, and likewise against Francis Martinez on
account of the alleged negligent operation of an automobile by Francis Martinez
resulting in the death of a guest passenger. The trial court granted summary
judgment in favor of both Luis Martinez (father) and Francis Martinez (son)
finding that Francis Martinez was the owner of the car involved and protected
by the guest statute. However, the Supreme Court concluded that there was an
{*777} issue as to the ownership of the car.
If it belonged to the father, then the son did not come within the protection
of the guest statute. The last paragraph in Cortez states:
"It follows that the cause should be reversed and
remanded to the trial court with instructions that it be reinstated on the
docket and plaintiff granted a trial as against Francis Martinez. There being
no claim of gross negligence or willful misconduct as to Luis Martinez, and his
liability being predicated solely on the family purpose doctrine, no recovery
from him because of ordinary negligence is permissible. Lopez v. Barreras, * *
* [77 N.M. 52, 419 P.2d 251 (1966)]. The judgment of dismissal of Luis Martinez
was correct and is affirmed. Costs on appeal are to be borne equally by
plaintiff and defendant Francis Martinez."
{17} Under this holding the
protection of the guest statute was extended to the father, Luis Martinez,
without regard to whether he or his son, Francis, owned the car. Thus, if it
were determined that Luis Martinez was the owner of the car although driven by
Francis Martinez, the father, Luis, would be protected by the guest statute.
The affirmance of the judgment as to Luis Martinez also had the effect of
eliminating liability under the family purpose doctrine in cases in which a
family member-owner of the vehicle is protected against liability by the Guest
Act. Compare McHugh v. Brown, supra.
{18} We next consider whether
there was a triable issue as to the liability of the parents for giving and
permitting their son to operate a motorcycle capable of developing 1 horse
power in excess of the maximum fixed by statute.
{19} We assume, but do not
decide, that the giving of the particular motorcycle to Charles and permitting
him to operate it contrary to his license and the applicable statute is
negligence per se. The question, however, is - does the record present a
triable issue as to whether the parents' acts proximately caused Jeffrey's injuries?
{20} As stated, we have taken
the view for the purpose of the motion that from the facts before the court
Jeffrey's injuries proximately resulted from the negligence of Charles in his
operation of the motorcycle, particularly in failing to maintain a proper
lookout and failing to maintain his motorcycle under proper control. As we view
the record, Charles' failure to properly control the motorcycle may at least be
inferable from the skid marks left and the fact that in its operation it slid
and fell with the boys and then collided with the Russell automobile.
{21} Upon this inference it
is suggested that a further inference may be drawn; namely, that a cause of the
failure to exercise proper control was that the motorcycle was one capable of
developing more than five horsepower. Drawing such inference upon this record,
in our opinion, is impermissible for the reason that to so do would require
basing an inference upon an inference. Rekart v. Safeway Stores, Inc.,
81 N.M.
491,
468 P.2d 892 (Ct. App. 1970).
{22} We are aware that the
complaint alleges that the negligence of defendants in procuring the particular
motorcycle for Charles and in permitting him to operate it was a proximate
cause of Jeffrey's injuries. The plaintiff argues that the record does not
establish that this issue is undisputed; hence, summary judgment was not
properly granted.
{23} A party moving for
summary judgment has the burden of establishing that material facts are not in
dispute. Great Western Construction Company v. N. C. Ribble Company,
77 N.M.
725,
427 P.2d 246 (1967). Once this burden has been met by the movant, the
burden is then on the opposing party to produce evidence to the contrary.
Cervantes v. Forbis,
73 N.M. 445,
389 P.2d 210 (1964).
{24} Reliance cannot be placed
solely upon the allegations of a pleading. Rekart v. Safeway Stores, Inc.,
supra.
{*778} {25} In our view, the record could support a question
of fact as to the negligence on the part of Charles only in failing to keep a
proper lookout and to keep the motorcycle under proper control. There is
nothing in the record to indicate that the capacity of the motor to produce 6
horsepower in any way contributed to the failure of Charles to maintain a
proper lookout or keep the motorcycle under proper control. If evidence was
available to show that this capacity of the motor to produce an extra
horsepower proximately contributed in any way to the happening of the accident,
then plaintiff was obliged to come forward and present such evidence. In the
absence thereof, the summary judgment was properly granted. See Rekart v.
Safeway Stores, Inc., supra.
{26} The summary judgment
should be affirmed.
LaFel E. Oman, J., William R. Hendley, J.