Montoya v. City of Albuquerque

• Citation: 1970 NMSC 132,476 P.2d 60,82 N.M. 90
• Decision Date: 26 October 1970
• Docket Number: No. 8973,8973
• Parties: Carlos MONTOYA and Jose A. Montoya, Plaintiffs-Appellants, v. The CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellee.
• Court: Supreme Court of New Mexico

Page 60

476 P.2d 60

82 N.M. 90

Carlos MONTOYA and Jose A. Montoya, Plaintiffs-Appellants, v. The CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellee.

No. 8973.

Supreme Court of New Mexico.

Oct. 26, 1970.

Sutin, Thayer & Browne, Jonathan B. Sutin, Albuquerque, for plaintiffs-appellants.

Frank M. Mims, Albuquerque, for defendant-appellee

OPINION

SISK, Justice.

Plaintiffs appeal from a summary judgment granted to defendant City of Albuquerque. The amended complaint alleged that four police officers, acting under the authority and in execution of the orders of the City, committed the tortious acts of false arrest, false imprisonment, malicious prosecution and assault and battery. Plaintiffs sought damages from the individual police officers and from the City.

This is the second time this case has been before this court. The first appeal was dismissed because no final judgment had been entered as to the defendant police officers. Plaintiffs thereafter dismissed with prejudice their claims against these officers and we now have an appealable judgment in an action against the defendant City alone.

Basically, the City claims that plaintiffs cannot recover any judgment against it because its police department is operated as a governmental function and therefore it has the defense of sovereign immunity. The City recognizes two situations in which this doctrine is not applicable. If the acts complained of were covered by liability insurance authority by § 5--6--20, N.M.S.A.1953, the defense of sovereign immunity would not be available to the extent of such coverage. No such insurance was carried by the City. Secondly, the City may be liable for the torts of its officers if their acts come within the terms of § 14--9--7, N.M.S.A.1953, which provides:

'No personal action shall be maintained in any court of this state against any member or officer of a municipality for any tort or act done, or attempted to be done, when done by the authority of the municipality or in execution of its orders. In all such cases, the municipality shall be responsible. * * *'

The City, in effect, argues that this statute is applicable only where the specific acts complained of were authorized or ordered by the City Commission, and that the judgment was proper because of the plaintiffs' failure to allege or establish the existence of such a specific authorization or order. Although the summary judgment also recited that no genuine issue of material fact existed, it is apparent that the trial court's decision was based upon the City's interpretation of § 14--9--7, supra, because the judgment provided:

'3. That the City Commission of the City of Albuquerque neither authorized nor ordered the execution of the acts of the police officers as alleged in the Amended Complaint.'

Briefly summarized, the facts before the court, stated most favorable to the plaintiffs, were as follows: The police officers, in the early morning hours of January 14, 1965, while in the performance of their general duties and while acting under the general authority, orders, rules and regulations of the City of Albuquerque, including the ordinance hereafter quoted, saw plaintiff Jose A. Montoya near a house. Jose began to run, and they chased him to his house. The police officers entered the Montoya house, without a warrant, to see why he ran. During the interview the alleged torts occurred. Jose's father, plaintiff Carlos Montoya, had a seizure and fell against one of the officers who hit him in the ribs; Jose was hit on the head with a flashlight. Both plaintiffs were arrested and taken to jail; Jose was in his undershorts. Both were later released without prosecution.

In deciding a summary judgment motion, the court must view all matters presented and considered by it in the most favorable aspect they will bear in support of the right to a trial on the issues, and all reasonable inferences must be construed in favor of the party against whom the summary judgment is sought. Jacobson v. State Farm Mutual Automobile Ins. Co., 81 N.M. 600, 471 P.2d 170 (1970); Martin v. Board of Education, 79 N.M. 636, 447 P.2d 516 (1968). However, if after considering all such matters in the light of these rules there is no genuine issue of material fact and a basis is therefore present to decide the issues as a matter of law, then the summary judgment should be granted. Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969); Worley v. United States Borax & Chemical Corp., 78 N.M. 112, 428 P.2d 651 (1967).

Plaintiffs argue that the acts complained of were actually authorized by the municipality by the terms of the City of Albuquerque Municipal Code, § 3.505 (1949), which reads:

'Arrests. The Chief of Police and police officers of the City are hereby authorized to arrest any person violating in their presence, or whom they have reasonable cause to believe has violated any ordinance of the City of Albuquerque, or any law of the United States or of the State of New Mexico, and upon arrest being made, the officer making the arrest shall, as soon as practicable, make or cause to be made, a complaint before the proper judicial officer for the issuance of a warrant for the apprehension or detention of the person arrested.'

The issue determinative of this appeal is whether the above ordinance constitutes sufficient specific authorization and direction from the City to the police officers to meet the requisites of § 14--9--7, supra, and thus render the doctrine of sovereign immunity unavailable as a defense in all cases falling within the terms of the ordinance. If it does, then summary judgment was improper. If it does not, then the pleadings, depositions, affidavits and other matters before the court, even when considered most favorable to plaintiffs, did not create any material fact issue, the plaintiffs failed to establish the necessary elements of their statutory cause of action, and summary judgment and dismissal of the amended complaint was proper.

Before deciding this issue, we will dispose of the City's pending motion to dismiss this appeal, which was based upon its claim that the case is now moot because the claims against the individual defendants had been dismissed. This argument reasons that the police officers are the agents of the City and that the City can only commit a tort through is agents, and because the agents can no longer be held liable as a result of the dismissal, neither can the City be liable. Although this may be the common law rule with regard to a principal's liability, we are not dealing with the common law rule, but rather with a statute which specifically changes that rule. Section 14--9--7, supra, provides that either the City, or the officers, will be liable, but not both. Therefore, respondeat superior is not applicable and dismissal as to the agents does not affect the potential liability of the City under § 14--9--7, supra. The voluntary dismissal does, however, put plaintiffs in the position that if the City is not liable they have no remedy. For the reasons stated, the City's motion to dismiss is denied.

Returning to the determinative issue, does § 14--9--7, supra, contemplate municipal liability only when the governing body has specifically directed its officers to do the specific acts complained of, or are acts done under general authority also included? We must first examine the cases which have involved this statute. The most recent is Valdez v. City of Las Vegas, 68 N.M. 304, 361 P.2d 613 (1961), where the issue was the sufficiency of the pleadings to hold the City liable under the predecessor statute of § 14--9--7, supra. Plaintiff had alleged that the officer involved was acting for the City and 'within the apparent scope of his duty.' This court held that this was not sufficient, saying:

'In order that a good cause of action be pleaded it was required under the cases hereinabove cited that Gallegos not only be an officer of the City, and that he was acting under his commission as a police officer. Beyond the commission it was necessary in order to state a cause of action under the statute that 'the specific tortious act was done under the direction of the city or by its authority,' otherwise the common law rule of municipal immunity remains unchanged. * * *' The case of McWhorter v. Board of Education, 63 N.M. 421, 320 P.2d 1025 (1958), also mentioned the statute in question and said, with regard to the scope of the statute:

'* * * The language is sufficiently clear to show that in only a limited class of cases can a municipal corporation of any sort be sued without consent.'

Neither of the above cases are determinative of the issue because the court did not specify what it considered to be 'direction by the City' or 'action under its authority.' Although there is indication that something more than action within the authority of the City officer is required, the extent of such requisites, or the limits of such a 'class of cases,' is not delineated. Also, because no fact finder has made a determination of the facts in our case, including whether or not the officers acted outside the scope of their authority, we are limited to a determination of whether plaintiffs could be entitled to recover from the City under § 14--9--7, supra, even if the factual claims of plaintiffs are taken as true.

Also involving the statute, but of no real help in our inquiry, are Salazar v. Town of Bernalillo, 62 N.M. 199, 307 P.2d 186 (1956); Rascoe v. Town of Farmington, 62 N.M. 51, 304 P.2d 575 (1956); and Cherry v. Williams, 60 N.M. 93, 287 P.2d 987 (1955). In Brown v. Village of Deming, 56 N.M. 302, 243 P.2d 609 (1952), involving an action against a municipality under the statute in question, the plaintiff was arrested under a warrant issued at the specific direction of the village trustees. The court held that the statute contemplated exactly this type of action and that the plaintiff should have been allowed to...