Le Doux v. Peters

• Decision Date: 21 May 1971
• Docket Number: No. 567,567
• Citation: 486 P.2d 70,1971 NMCA 81,82 N.M. 661
• Parties: Gregory Ronald LE DOUX, a Minor by Mary Gallegos, as Guardian and Next Friend, Plaintiff-Appellee, v. Debbie PETERS, a Minor and Helen Peters, her Mother, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 70

486 P.2d 70

82 N.M. 661

Gregory Ronald LE DOUX, a Minor by Mary Gallegos, as Guardian and Next Friend, Plaintiff-Appellee, v.Debbie PETERS, a Minor and Helen Peters, her MotherDefendants-Appellants.

No. 567.

Court of Appeals of New Mexico.

May 21, 1971.

Writ of Certiorari Issued June 18, 1971.

Leon Karelitz, Las Vegas, for defendants-appellants.

Joe A. Duran, Duran, Pearlman & Short, Albuquerque, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Defendants, mother and minor daughter, appeal a judgment in favor of plaintiff.Plaintiff while riding his motorcycle was struck at an intersection by an automobile owned by Helen Peters and driven by her minor daughter, Debbie Peters.Plaintiff had the right of way and defendant failed to stop at a stop sign.Prior to the accident Debbie knew the brakes were not working sufficiently to stop the car.The issues were tried to the trial court sitting without a jury.Four points are presented for reversal.They relate to the family purpose doctrine and contributory negligence.We affirm.

'The Findings as made Do Not Support the Conclusion of Law, Impliedly Adopted that the AppellantHelen Peters' Motor Vehicle was a Family Purpose Car or the Judgment Based Thereon, and Such Findings Compel a Contrary Conclusion.'

Defendant, Helen Peters, relies on Finding of FactNo. 11:

'DefendantHelen Peters purchased the 1962 Chevrolet for her personal use and convenience and, during the three or more years DefendantHelen Peters had owned her 1962 Chevrolet before the accident on May 15, 1968, she permitted her daughters to drive that vehicle, and they drove it, from time to time for brief periods and distances and then only after obtaining special permission from DefendantHelen Peters each time they used the vehicle.'

She contends there are four principles, which when viewed in conjunction with the above findings, do not support a conclusion that her car was a family purpose car.The principles she would have us adopt and our answers are:

1.'(a) A parent is under no obligation to furnish his automobile for the comfort and pleasure, or general use and convenience of his family;'

This principle does not advance defendant's contention, for, despite what might have been the parental obligation, the record discloses that the mother did permit her two daughters to use the car for the convenience of the family, namely, going to and from school and church.

2.'(b) The burden is on the party asserting the applicability of the family purpose doctrine to prove that a motor vehicle is maintained by the owner for the general use and convenience of his family;'

This principle is not in line with New Mexico decisions.Our decisions have held heads of families liable under the doctrine when they did not own the automobile in question, and when the vehicle was not maintained for the general use and convenience of the family.Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050(1952);Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331(1951).Also, as the doctrine is applied in New Mexico when a child uses an automobile owned by his parents there is a presumption of agency arising from such ownership and use.Burkhart v. Corn, 59 N.M. 343, 284 P.2d 226(1955).After plaintiff had established these two facts as were found by the trier of fact in finding number one that the '* * * automobile was operated by the DefendantDebbie Peters with authority from and owned by her mother, the DefendantHelen Peters,'defendant had a burden of coming forward to rebut the accompanying presumption.It was for the trier of fact to determine whether defendant had done so.

3.'(c) The Fact of the parent's ownership of a motor vehicle, plus a family member's driving, does not prove family purpose, as this equally would prove a mere lending of an automobile to the minor child * * *.'

As discussed in the preceding paragraph, in New Mexico ownership and use gives rise to the presumption of a family purpose doctrine.Burkhart v. Corn, supra.Furthermore, this was not an isolated instance of lending.There was testimony that the car used was used for the family's convenience to go to church and to school.

4.'(d) The family purpose doctrine is not applicable where members of the family must obtain special permission each time they use the motor vehicle, unless (as is not the situation here) the requirement of permission relates only to the owner's general parental supervision of such family members with respect to a vehicle clearly furnished and maintained for the general use and convenience of the owner's family.'

This principle does not aid defendant.She asserts that permission required for use of this automobile was not permission relating to general parental supervision.This assertion, however, is not supported by the evidence, nor by the findings of the trial court.

In light of the above we cannot say as a matter of law that defendantHelen Peters' car was not a family purpose car.

Defendant's analysis and reliance on out of state cases has been considered but does not change our opinion in view of the family purpose doctrine as developed by New Mexico case law.

'2.The Court Erred in Refusing to Find AppellantHelen Peters' Motor Vehicle was Not Maintained by Her for the General Use and Convenience of Her Family and to Conclude She Therefore was Not Liable for the Negligence of Her Daughter, AppellantDebbie Peters, While Operating the Vehicle.'

As was discussed above findings one and eleven implicitly held that the automobile was a family purpose car.Requested findings and conclusions which conflict with those found by the trial court and supported by substantial evidence are properly refused.Thigpen v. Rothwell, 81 N.M. 166, 464 P.2d 896(1970);Samora v. Bradford, 81 N.M. 205, 465 P.2d 88(Ct.App.1970).Defendants' claimed error then requires that we examine whether the court's finding is supported by substantial evidence.

On the stand defendantHelen Peters conceded that she permitted Debbie and another daughter to drive the car, and that on the night of the accident permission was given to Debbie because the mother would not be there to drive her.Once in a while the mother would permit defendant Debbie to use car for errands.There was testimony that the car was used for the convenience of the family in going to school and to church and that one of the daughters would pick up the children in the car on days when the weather was bad.

In light of these facts and what constitutes the family purpose doctrine in New Mexico case law, the findings of the trial court were based on substantial evidence.It was not error to refuse contrary findings.Thigpen v. Rothwell, supra;Samora v. Bradford, supra.

'3.The Findings as Made Do Not Support the Conclusion of Law Impliedly Adopted that AppelleeLe Doux was Free from Contributory Negligence or the Judgment Based Thereon, and Such Findings Compel a Contrary Conclusion.'

Contributory negligence is an affirmative defense, the burden of which is on the defendant to establish.Martinez v. C. R. Davis Contracting Company, 73 N.M. 474, 389 P.2d 597(1964);Samora v. Bradford, supra.When the trial court refuses to find an ultimate fact, such refusal constitutes a finding to the contrary against the party who had the burden of establishing that issue.Lopez v. Barboa, 80 N.M. 338, 455 P.2d 842(1969);State ex rel. Thornton v. Hesselden Const. Co., 80 N.M. 121, 452 P.2d...