Downing v. Dillard, 5378
| Decision Date | 28 May 1951 |
| Docket Number | No. 5378,5378 |
| Citation | 232 P.2d 140,1951 NMSC 41,55 N.M. 267 |
| Parties | DOWNING v. DILLARD et al. |
| Court | New Mexico Supreme Court |
G. T. Watts, Roswell, for appellants.
Allan D. Walker, Alamogordo, for appellee.
Shipley & Shipley, Alamogordo, for J. W. Robinson, proposed third-party defendant, appearing in trial court only.
Two trucks owned respectively by Robinson and Durbin collided on a public highway west of Roswell, New Mexico, while traveling in opposite directions, seriously injuring the plaintiff, Downing, who was then riding as a guest with Robinson.
The trial court found the collision was due to each truck having exceedingly bright lights, which were not dimmed as they approached each other, and each being operated too near the center of the highway, and rendered judgment in favor of Downing against Durbin and Dillard, the driver of Durbin's truck for $7,500.
The defendants, by permission of the court, filed a third-party complaint against Robinson, alleging the Robinson truck approached the Durbin truck traveling at a high and excessive rate of speed, and that it was being operated recklessly upon the highway in total disregard of the rights and safety of others traveling the highway; that Robinson failed to dim its lights and was driving on the wrong side of the highway; and that such acts were the sole and proximate cause of the collision and injury to the plaintiff. Defendants asked if the plaintiff recovered anything against them, that they have judgment over against Robinson. Motion by Robinson to strike the third-party complaint for failure to state a cause of action was filed and argued, whereupon the defendants and third-party plaintiffs asked leave to amend their complaint, adding that such acts of Robinson contributed to the collision and resulting injury. Objection was made by the third-party defendants on the ground such complaint would still fail to state a cause of action against them. The trial court agreed the objection was well taken and announced the motion to strike would be sustained.
The defendants denied liability but proceeded in part on the theory that, if they were liable, they and Robinson were joint tortfeasors, and they were entitled to contribution and should be allowed to make Robinson a third-party defendant under Rules of Civil Procedure, Rule 14(a) 1941 Comp. Sec. 19-101
Absent our guest statute, Sec. 68-1001, 1941 Compilation, the owners and operators of the two trucks would have been liable to the plaintiff for the injuries inflicted upon him as a result of concurring ordinary negligence, and it would have been a typical case for the bringing in of the third-party defendant. As Downing was a guest of Robinson, a different rule applies to the latter, for he could be held liable only if the accident was intentional on his part or caused by the operation of his truck in heedlessness or reckless disregard of the rights of others; while, as above stated, Dillard and Durbin are liable for the injury caused in part by their ordinary...
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