Chavez v. Ronquillo

• Decision Date: 20 May 1980
• Docket Number: No. 4402,4402
• Citation: 1980 NMCA 69,94 N.M. 442,612 P.2d 234
• Parties: Maria CHAVEZ, Plaintiff-Appellant, v. Jeanette G. RONQUILLO, Administratrix of the Estate of Nolasco Ronquillo and Galles Chevrolet, a New Mexico Corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 234

612 P.2d 234

94 N.M. 442

Maria CHAVEZ, Plaintiff-Appellant, v. Jeanette G. RONQUILLO, Administratrix of the Estate of Nolasco Ronquillo and Galles Chevrolet, a New Mexico Corporation, Defendants-Appellees.

No. 4402.

Court of Appeals of New Mexico.

May 20, 1980.

Motion to Reconsider Denied May 28, 1980.

Stephen Durkovich, Albuquerque, for plaintiff-appellant.

Rick Beitler, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees.

OPINION

SUTIN, Judge.

Summary judgment was granted Galles Chevrolet Center, Inc. in an action brought by plaintiff growing out of a single vehicular accident in which a Galles car driven by decedent, its used car salesman, in which plaintiff was a passenger, sped over a highway and smashed into a tree. Plaintiff appeals. We affirm.

The only issue on this appeal is whether Nolasco R. Ronquillo, deceased, the used car salesman, was operating the Galles car within the scope of his employment.

The record shows:

Decedent was employed by Galles as a used car salesman. His official hours of employment were during the morning shift that ended at 1:00 P.M. Decedent was allowed the use of a Galles car to drive to and from home to his place of employment.

On April 30, 1976, decedent was officially off duty at 1:00 p. m. He signed out at 1:00 p. m. That meant that he had the car to go home with, not to demonstrate for purposes of sale. He had no authority to drive the demonstration car out of the city. The policy and procedure of Galles with reference to company owned vehicles being driven by the sales department included "Prospecting." When decedent left his shift with Galles, he was not instructed to do anything to further Galles' business, that is, to take a car and go prospecting. There was no indication that he would do that.

Decedent was a salesman with a quota per month. He was not a buyer of cars. A salesman very rarely brought in leads on used car purchases. If a salesman knew of a car for sale, he would bring the information to the manager and if the price was right, the manager would buy it. Decedent could use the car to pursue Galles' business.

After leaving his shift, decedent remained on the premises until about 2:30 p. m. At about 6:15 p. m. that evening, while operating a Galles car with plaintiff as a passenger, decedent drove south on U.S. Highway 85 at the rate of 100 mph while intoxicated. At a right turn in the road, at about 3/10ths of a mile north of its junction with Fourth Street, decedent careened straight ahead over the highway through a barbed wire fence into a large tree and was killed. Plaintiff was injured. At the time of the accident decedent and plaintiff were returning from Santa Fe and were together for social reasons and not for reasons connected with or arising out of employment with Galles. Decedent had known plaintiff since 1971 and frequently accompanied her for social reasons.

Galles established a prima facie case of non-liability.

Plaintiff responded by affidavit:

In April of 1976, she had lived in Albuquerque for about six months, had been employed most of the time, but was unemployed at the time of the accident. In order to support herself, she tried to transport and possibly sell cars as she had previously done in Midland, Texas. In Midland, she had been a title clerk for various car dealers and also transported cars from Midland to the Albuquerque auction and various dealers, including Galles for show prior to auction. She received $75.00 per car for each vehicle transported.

Because she was unemployed, plaintiff was seeking to generate an income in Albuquerque by transporting and/or selling cars obtained in Midland or other places and taken to Albuquerque. Her affidavit continued: "It was in this context that decedent wanted to speak with me on April 30, 1976. Specifically, he was interested in having me obtain pickup trucks in Midland and bring them to Albuquerque since he said they sold well at Galles in Albuquerque. He came to my home on April 30, 1976 to discuss the matter and we entered his car as I remembered to look at some cars that a bank on Fourth or Fifth or one of those streets was going to sell. I have no recollection of what transpired after that."

Plaintiff stated that she became acquainted with decedent in late 1972 or 1973 while she was a title clerk in Midland. She talked with decedent about four times between the time she met him and the time of the accident.

Plaintiff did not meet the burden placed upon her to create a genuine issue of material fact as to decedent's scope of employment. The events that occurred between the time she entered decedent's car and 6:15 p. m., the time of the accident, faded from memory. This was the crucial period from which to create a genuine issue of material fact. There is not a scintilla of evidence that when plaintiff entered decedent's car, plaintiff and decedent went "prospecting." Neither is there a scintilla of evidence that decedent was acting within the scope of his employment at the time of the accident.

Plaintiff filed her complaint on April 27, 1979, three days short of the three year limitation period. Section 37-1-8, N.M.S.A.1978. After the passage of three years, memories of witnesses usually fade and become uncertain.

Plaintiff claims that "It is certainly reasonable to infer that their pursuit of vehicles which Galles might purchase was in fact 'prospecting'; an action which Galles expressly permitted. As such, Mr. Ronquillo was using his vehicle in a manner foreseeable to and expressly permitted by Galles Chevrolet."

In effect, plaintiff asks us to infer, absent any evidence, that from 2:30 p. m. to 6:15 p. m., a period bordering on four hours, plaintiff and decedent were searching for cars that Galles might purchase. The "inference" concept has often been offered by parties as an escape hatch beginning with Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940). This concept does not assist plaintiff. The evidence is undisputed that the decedent was officially off-duty at 1:00 p. m. April 30, 1976. At 2:30 p. m. we will assume that decedent picked up plaintiff to "prospect" for cars on Fourth or Fifth. To establish the "inference"...