401 P.2d 308 (N.M. 1965), 7633, Potomac Ins. Co. v. Torres

Docket Nº:7633.
Citation:401 P.2d 308, 75 N.M. 129, 1965 -NMSC- 041
Opinion Judge:[10] Noble
Party Name:POTOMAC INSURANCE COMPANY and Leroy J. Miller, Plaintiffs-Appellees, v. Juan B. TORRES, Defendant-Appellant.
Attorney:McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, Albuquerque, for appellant., Menig & Sager, Albuquerque, for appellees. [7] [75 NM Page 130] MENIG & SAGER, Albuquerque, New Mexico, Attorneys for Appellee. [8] MCATEE, TOULOUSE, MARCHIONDO, RUDD, & GALLAGHER, MARY C. WALTERS, Albu...
Judge Panel:MOISE and COMPTON, JJ., concur.
Case Date:April 19, 1965
Court:Supreme Court of New Mexico

Page 308

401 P.2d 308 (N.M. 1965)

75 N.M. 129, 1965 -NMSC- 041

POTOMAC INSURANCE COMPANY and Leroy J. Miller, Plaintiffs-Appellees,

v.

Juan B. TORRES, Defendant-Appellant.

No. 7633.

Supreme Court of New Mexico.

April 19, 1965

[75 N.M. 130] McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, Albuquerque, for appellant.

Menig & Sager, Albuquerque, for appellees.

NOBLE, Justice.

Benjamin Torres, an unemancipated minor under 18 years of age, stole an automobile and, in attempting to evade a police pursuit, drove at speeds in excess of 60 miles per hour on crowded business streets. During the chase, he drove the car into the rear of Dr. Miller's automobile, which was stopped at a traffic light, and damaged it to the extent of $387.46. Potomac Insurance Company, having paid for the repair of the Miller car, with the exception [75 N.M. 131] of $50 which was deductible from its physical damage insurance policy, is now subrogated to Dr. Miller's cause of action.

Page 309

The trial court found that the damage to the Miller car was the malicious and willful act of Benjamin Torres and that at all times material he lived with his parents. Judgment was rendered against the minor and his father for these damages, and the father has appealed.

The pertinent portion of Sec. 22-21-1 N.M.S.A. 1953, which formed the basis of the suit reads:

'* * * any person * * * shall be entitled to recover damages in an amount not to exceed five hundred dollars ($500) * * * from the * * * parents of any unemancipated minor under the age of eighteen years, living with the parents, who shall maliciously or wilfully damage or destroy property * * * belonging to such * * * person * * *.'

It is not disputed that approximately one week prior to the date of the automobile collision, Benjamin Torres was taken to the Bernalillo County Detention Home for juveniles and thence removed to a hospital for treatment for injuries sustained. In violation of the order of the detention home, he returned to his residence upon being released from the hospital on about October 19, 1962, and remained there with his parents until October 23, 1962, when the acts complained of occurred.

This appeal presents the issue as to whether the trial court properly concluded that the Miller car was maliciously and willfully damaged by the minor while living with his parents within the meaning of $22-21-1...

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