Burkhart v. Corn, 5865

• Decision Date: 21 April 1955
• Docket Number: No. 5865,5865
• Citation: 284 P.2d 226,59 N.M. 343,1955 NMSC 32
• Parties: Clyde BURKHART, Plaintiff-Appellee, v. Curtis CORN, Roscoe Wood and Mamie Corn Wood, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 226

284 P.2d 226

59 N.M. 343

Clyde BURKHART, Plaintiff-Appellee, v. Curtis CORN, Roscoe Wood and Mamie Corn Wood, Defendants-Appellants.

No. 5865.

Supreme Court of New Mexico.

April 21, 1955.

Rehearing Denied June 16, 1955.

John P. Cusack, Roswell, H. E. Blattman, Las Vegas, G. T. Watts, Roswell, for appellants.

Noble, Spiess & Noble, Law Vegas, for appellee.

COMPTON, Chief Justice.

This is an action by appellee against appellants for damages resulting from the negligent operation of a motor vehicle by appellant, Curtis Corn. The principal question is whether the 'family purpose doctrine' is applicable. The complaint charges that Curtis Corn is the son of appellant Mamie Corn Wood and the stepson of appellant, Roscoe Wood, and that at the time of the accident he was using a pickup truck owned by appellants, Mamie Corn Wood and Roscoe Wood, in the furtherance of a family purpose. Appellants entered a general denial, also a plea of contributory negligence. As a defense to the plea of contributory negligence, appellee pleaded that he was subjected to a sudden emergency by Corn's negligence. Appellant Corn also filed a cross-complaint for damages alleging that appellee's negligence in the operation of his automobile was the proximate cause of the accident. Issue was joined and the cause was tried to the court without a jury. At the conclusion of the hearing, the court found the issues in favor of appellee, and this appeal followed.

We have repeatedly held that the 'family purpose doctrine' is followed in this jurisdiction. Boes v. Howell, 24 N.M. 142, 173 P. 966, L.R.A.1918F, 288; Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050; Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331.

It is first asserted that the evidence fails to establish a prima facie case under the doctrine. Admittedly, Roscoe Wood and Mamie Corn Wood are husband and wife, and Mamie Corn Wood is the mother of Curtis Corn; that the Woods are ranchers in the vicinity of Corona and reside upon the ranch part of the time; that Curtis Corn was employed by them, lived on the ranch, and performed the usual ranch work, such as feeding cattle, etc.; that he used the pickup truck in connection with his employment; that he had Saturdays off and on such days was permitted to use the truck for his own pleasure; that the accident occurred on a Saturday, and it was while he was using the truck for his own pleasure, the accident occurred. Assuming the presence of negligence and damages resulting from such use, issues to be discussed later, we think this evidence alone establishes a prima facie case of liability under the family purpose doctrine. The burden was then upon the parents to overcome the presumption of agency arising from such ownership and use. We said in the first case before us, Boes v. Howell, supra [24 N.M. 142, 173 P. 967], as follows:

"It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family makes their conveyance by that vehicle his affair--that is, his business--and any one driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another is his agent."

Also see Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L.R.A.,N.S., 59; Carlson v. Wolski, 20 Wash.2d 323, 147 P.2d 291; Davis v. Browne, 20 Wash.2d 219, 147 P.2d 263.

Curtis Corn was an adult at the time of the accident, and it is claimed that by reason of his majority, family relationship as contemplated by the family purpose doctrine has not been sustained. This argument is untenable, the age of the driver is wholly immaterial. In Marshall v. Taylor, 168 Mo.App. 240, 153 S.W. 527, 529, an adult son was the driver of the vehicle and the Missouri Court, in disposing of this question, said:

'Aside from what we have just said, we may add that in proving the car was the property of defendant in charge of his chauffeur the evidence of plaintiff tends to show that the chauffeur was acting in the line of his employment. As is well said by the St. Louis Court of Appeals in Shamp v. Lambert, 142 Mo.App. [567,] loc. cit. 575, 121 S.W. , 773; 'The admission of the defendant to the effect that it was his automobile, and that his chauffeur was in charge of the same at the time of the injury, of course, tends to prove that the chauffeur was acting in the line of his employment, for, if he was defendant's chauffeur, then his duties were to operate defendant's automobile. We believe this testimony is sufficient for the prima facie purposes of the case; for how would plaintiff prove the particular trip to the station by the chauffeur and automobile was authorized by defendant? If, as a matter of fact the chauffeur was not acting for the defendant at the time, the burden rested with him to show to the contrary, after plaintiff had shown so much."

See Steele v. Hemmers, 149 Or. 381, 40 P.2d 1022; King v. Smythe, 140 Tenn. 217, 204 S.W. 296, L.R.A.1918F, 293; Edwards v. Rubin, 221 Mo.App. 246, 2 S.W.2d 205; Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167; Smart v. Bissonette, 106 Conn. 447, 138 A. 365. Also see Huddy Encylopedia of Automobile Law, Vol. 7-8, p. 325; Watson v. Burley, 105 W.Va. 416, 143 S.E. 95, 64 A.L.R. 839. True, appellants testified that Curtis Corn was on his way to Carrizozo to purchase an automobile for himself at the time of the accident. Nevertheless, this evidence does not rebut the inference of agency created by proof of ownership and use. In any event the truth of any rebutting evidence purporting to disprove the inference of agency thus created was for the trier of the facts.

The accident occurred just south of Corona. Appellee was driving an automobile in a northerly direction and appellant Corn was driving the pickup truck in a southerly direction. The court found that appellant Corn was driving on the wrong side of the highway, the east side, thereby causing appellee suddenly to...