Fitzgerald v. Valdez, 427 P.2d 655

Fitzgerald v. Valdez

427 P.2d 655

N.M.

1967

Check Treatment

*1 Chesapeake Industries months). See (several

Brаndt, Sup., N.Y.S.2d Roy FITZGERALD, G. Executor Estate of Co., 21 Kropp Steel months); Danks v. Roy Fitzgerald, Plaintiff-Appellant, B. (2 years). Ill.App.2d N.E.2d 694 VALDEZ, Defendant-Appellee. Alfred A. Montgomery Finally, contends VALDEZ, Third-Party Alfred A. check rather than

delivery a cashier’s Plaintiff-Appellant, requires a different personal check rejected reason expressly rule. We Third-Party FITZGERALD, Warren Lee Co., York Life Ins. New in Warren v. ing Defendant-Appеllee. supra, it where was said: No. 8208. (cid:127) opinion quoted “In last from above Supreme Court New Mexico. might the rule the- court intimates April 24, 1967. check or if the sender’s own same draft, bank draft or check instead of Rehearing May 25, Denied decided, were person, as in the case suggested for the dif-

sent. reason is, check or if the sender’s own

ference money employed, the is not with-

draft be account, he is not

drawn from his a mere retention of

out its use sug- transparency

check. In the one

gested distinction obvious. sender, if in the other the

case as well as repudiating the

he avoid would himself settlement, must

claimed rescission money deny

all times himself use of meet the holding it in his account to presented.”

check tendered when appealed judgment

It follows that affirmed.

"from should be

It is so ordered. OMANj

MOISE, J., J., Court

Appeals, concur.

771 *3 Corey, Nohl, Ernest Albuquerque, Fred

J. appellant. for flashlight jumped nect the and from his car Sperling, Roehl & Modrall, Seymour, just the collision. Allen, Cooney, before R. (cid:127)Harris, H. Frank John plaintiff- Albuquerque, Street, The accident occurred ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on Carlisle (cid:127) appellant. Albuquerque in in the block immedi- N.E. Moore, ately The south of Indian School Road. McLeod, Al- Russell & Keleher Fitzgerald two vehicles were in curb appellee. buquerque, for street, facing lane the east side OPINION twenty-one north. The curb lane is over feet in width. The record does not show Appeals. WOOD, Judge, Court of the distance between the vehicles and (1) con- The decided concern: issues curb. a matter of law and

tributory negligence as happened night. The accident at There immunity doctrine. (2) the Road, light was a street on Indian School Roy Fitzgerald, B. son Leе Warren but we from do not know distance difficulty starting his car in Fitzgerald, had light street accident scene. Twice his father for assistance. asked night was characterized as dark. Warren’s father, car, pushed car his Warren’s lights burning car did not have again. car until it started. stalled Warren’s lights time of the Mr. accident. Valdez’ his car in of his drove front father beam; were on low he first saw Warren’s car and bеtween the two vehicles son’s fifty seventy-five feet car when he was attaching chain car a tow when Warren’s from it. brakes Valdez Mr. was struck rear vehicle driven attempted before turn to left by Mr. The father died from in- Valdez. hitting Warren’s car.

juries received this collision. visiting with Mr. had been Valdez his father was between the ve-

While friends a bar. Enroute home from the hicles, flashlight connected a into Warren He bar he accident. was involved in the cigarette lighter signaled his car’s three-fourths was at the bar for two and ap- flashlight a northbound car hours, during which time he consumed proached Fitzgerald around went beers, highballs portion two two and a pulled flashlight vehicles. then *4 highball. third lighter to cigarette connection out of the was At time of the collision Warren unwrap unwrapping thе cord. While old; twenty-one years ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍He and nine months approaching. cord, car saw Mr. Valdez’ he unsuccessfully attempted University at the New to recon- was a student of Warren

773 Mexico, living liis home and father’s “contributory negligence” term supported by being his father. embraces negligence proximate both Waldie, cause. Silva v. 42 N.M. wrongful alleged Plaintiff’s death action P.2d 282 (1938); New Mexicо Uniform negligence proximate Mr. Valdez Jury 13.1; Instruction No. see Bouldin v. cause of the death. Mr. Valdez’ answer Sategna, 71 N.M. alleged negligence that decedent’s was and Committee Comment to Mexico New proximate contributory Mr. Valdez’ cause. Uniform Jury Instruction No. 12.10. party complaint against third al- Warren leged negligent that was and that Here, the contributory negligence ques- proxi- negligence this was either the sole n tion aspects: has three (1) Did decedent mate contributory proximate cause or violate, a statute with the result that he was cause of death. negligent per (2) se? negli- Was decedent gent under the (3) common law ? If dece- summary judg- The trial entered court law, dent was negligent aas matter of ment in favor of defendant and third was proximately сon- appeal defendant. Plaintiff’s that asserts tributing factor his death? None of contributory there was no questions these can be answered af- matter of law and that the doctrine last firmative as a matter of law. applicable. clear not chance was We do question reach the clear chance last Statutory violations are since that con- we hold decedent was not per se if the statute violated enacted tributorily negligent as a matter of law. person injured. benefit the' appeal Mr. the fam- Valdez’ contends that Hayes Sategna, supra; Bouldin v. ily immunity doctrine does not bar his Hagemeier, 75 N.M. P.2d party complaint. agree. We (1963). Our concern here is whether applicable, applicable, statute and if contributory questiоn negli whether there was a violation. Mr. Valdez gence properly jury taken from the relies on 64-20-53 64-20-25(b), N. §§ cannot differ on reasonable minds M.S.A. 1953. question. Noeding, Mozert v. (1966). Relying P.2d 64-20-51, Section N.M.S.A. Gray P.2d Esslinger, defines the “motor term vehicle” as used that under Valdez asserts Mr. 64-20-53, N.M.S.A. § facts, the undisputed can reasonable minds Fitzgerald definition does not include the question differ on decedent’s cars, contributory negligence. passenger which were Sec- vehicles. *5 774 contributorily negligent as a matter 1953, appli- was 64--20-53, is not

tion N.M.S.A. dangerous situa- he was a law because cable. traffic, tion, not not watch out for did did 1953, 64-20-25(b), N.M.S.A. Section keep rely him to person assisting on parked or vehicles pertains lamps to on watch, kept watch. and the assistant no require- roadway. lamp stopped The on a concerning the any question from Aside “ * * * apply when this section ments of reached, here, isit correctness of the result any light to reveal there not is sufficient looking undisputed was out that Warren of 500 person object distance within a or it distinguishes from for traffic—this fact ” ** * highway, feet the Tibbetts case. insuf- undisputed record are facts rea failed to exercise decedent Whether whether, a matter ficient to determine safety cannot sonable care for his own law, this section has been violated—the actions by considering determined record there was does show whether actions decedent’s decedent. Whether person object light sufficient reveal a or to ordinary care de did did not constitute 500 feet. within a distance of pends the case. on the circumstances of 425, Jacobs, See Archuleta v. N.M. saywe as a matter of law Nor can Martinez, ; (1939) 94 P.2d 706 Le Doux 1953, applied 64—20-25(b), N.M.S.A. § 86, (1953); 57 N.M. 254 P.2d 685 New undisputed to decedent. It is that decedent Jury No. 12.2. Mexico Uniform Instruction rendering request at the was assistance going Decedent’s between the cars to con It car that was Warren. was Warren’s nect chain considered the tow must be 64-20-1, lights. without Section N.M.S.A. actions, lighting relation to Warren’s to ap (b) indicates to whom 64—20-25 § street, conditions, width plies. (b) Whether 64—20-25 § traffic conditions—to all the circumstances. question decedent is a of fact. negligent decedent was was Whether question jury. for the fact Mr. that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as a Valdez asserts matter of law decedent the com violated negli Even had been if decedent duty mon law care to exercisе reasonable law, ques gent as matter there safety. for his own He relies on Tibbetts proxi negligence was tion whether such Dunton, 453, (1934), A. Me. mately contributing in his death. factor plaintiff a case tire changing where question of causation exists so, doing and while was struck defend se, per Bouldin jury ant’s plaintiff vehicle. A verdict for Rounds, 70 plaintiff supra; wa's set aside Sategna, basis that Horrocks v. City Carnahаn, 370 P.2d 799 supra; Williams Oil Corp., N.M. Chavira v. No. It N.M. Haas, 423 P.2d also exists when the is common reasonable minds could negligence. law Baca of Coun v. Board differ as to whether decedent’s acts were ty Commissioners, P.2d contributing proximate cause of death. City (1966); v. Ancient Rivera Oil question negligence, As on the of decedent’s *6 473, Corp., 61 (1956). N.M. 302 P.2d 953 question causation, so here on the of of all the circumstances must be considered. asserting that as a matter of law In Decedent’s estate was entitled to have the the cause of the death was the on say jury any by whether violation decedent part decedent, of Mr. Valdez relies on statutory regulations the or common law 741, Koury, Gutierrez v. 263 P.2d proximate contributing care due was a 557 (1953). The is Gutierrez case bringing factor in about decedent’s death. distinguishable. There, trial the court Haas, supra. Williams v. plaintiff found that negligent was not and (similar concluded that the accident to the There an concerning is issue the solely one involved) here the caused family immunity doctrine because leaving of the defendant in party complaint Mr. Valdez seeks highway truck the without or flares other son, Warren, contribution the from for all lights to warn other The motorists. conclu part any damages may that be assessed sion to findings as causation followed from against right Mr. Valdez. The of con made after trial. plaintiff, tribution is if denied because marital, family we had of a have no and no filial or other trial deter- relation ship of negligence injured mination be a person can made as between the person against matter sought, lаw. whom contribution is right did not have against an enforceable question of causation be deter- Dreslin, the latter. Yellow Cab Co. v. mined a matter of law. a Such deter- U.S.App.D.C. 327, 181 F.2d 19 A.L.R. Sategna, mination was in Bouldin v. made 2d applied Rodgers This rule was supra. However, party even if a negli- is Galindo, (1961). N.M. 360 P.2d gent, necessarily is not a contributing then; question, cause as matter of a law. is whether decedent’s Rоunds, supra. Horrocks v. right Where rea- against estate had an enforceable Warren, might very sonable minds well differ on the son. Warren contends that question cause, exists, proximate right the matter relying no such on Nahas v. is jury. Noble, issuable before a Rivera v. Ancient Noble, care supra, child unable to take of itself and re- held that

Nahas v. parent parent. personal quiring child for child to remain with could not sue a Parker, supra; Parker tort the child was un Gillikin v. Bur- committed while bage, policy supra. nothing There is a minor. Public record prohibits parent exception applicable to and child indicate that the is suits between here; and, event, any prov- the defendant burden of negligent based on acts of ing exception occurring the time the child was would seeking subject parental to to member of the unit and show that relation- parental ship discipline. is not care and severed. family relationship is

Once the are cases which hold There longer subject altered that the child is no so majority only presumption creates parental discipline, care the child emancipation. presumption Such a has emancipatеd. Emancipation said to be been defeat the child’s claim parent between severance of against parent for reimbursement relationship legal so far as wages services rendered or turned over rights and liabilities are concerned. Parker majority. Sparks after Parker, 94 S.E.2d 60 Hinckley, S.C. Utah P.2d 570 1280 (1956). A.L.R.2d Driscoll, Donovan v. 116 Iowa 90 N.W. *7 ; (1902) Tingey, 60 see Mathias also v. 39 Such an alteration oсcurs 561, L.R.A.,N.S., 781, Utah 118 38 749 P. parental relationship is between severed (1911). presumpton also been has parent parent A may a minor child. sue applied parent’s right to sustain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ to recover an personal child minor for party from a expenses incurred 'in third for Annot., tort. A.L.R.2d 1292. 60 the care of an child as of a adult a result party’s Ry. tort. Pac. v. Union Co. by alteration Such an also occurs Jones, 340, (1895). 21 Colo. 40 P. 891 operation situation, of law. In the usual parental relationship cases, ques- is severed when the Under the facts of these it is majority child reaches because the law tionable presumption whether was need- However, point parental fixes that support as the time for ed to the results reached. rights we and liabilities cease. Parker v. do not these concern ourselves with cases Parker, supra; Burbage, they Gillikin v. because 263 do not involve a suit between 317, parent (1965). personal N.C. There is 139 S.E.2d 753 and child for tort. No exception an pre- to this result there is an case where was found which infirmity body rendering sumption parent or mind in suits and child between twenty-one, “Even when he becomes reached after child committed for torts suddenly metamorphosed into is not majority. its parents; stranger a chilled he to his cases, type of Conversely, in several experience remains common held are concerned suit with which we privity Complete emotional with them. or no discus- maintainable with little to be emancipation lacking ipso is not facto Crosby, App.Div. Crosby v. 230 sion. See endures, simply pietas because no more 651, (1930); Pondеr v. 246 N.Y.S. simply than it is because established Ponder, Becker (La.App.1934); 157 So. 627 pietas lacking. there Between the two Rieck, 104, 19 Misc.2d 188 N.Y.S.2d 724 v. Emancipa- is no necessary connection. (1959). pietas an legal, tion has do with to with Ga.App. 152 S.E. Farrar, Farrar v. emotional, relationship. complete For (1930), expressly held that such suits emancipation, require the law does not would lie if the tort were committed after ” * * * ties; the severing all Parker, supra, and majority. Parker v. Burbage, supra, imply adopt parent the same Gillikin v. We this view and hold that a Weyen Weyen, personal result. And 165 Miss. sue a child tort committed see for (1932). majority. a result after the 139 So. Such child attains its and 57- would be consistent with 32-1-4 §§ the decedent could have 3-7, N.M.S.A.1953, v. Van and Stevens against maintained an action his son Deusen, (1951), P.2d personal рarty tort. The third claim Mr. parents to the effect that are entitled to all Valdez is not barred. custody, earnings control and of their summary judgments Both are reversed. minor children. The cause is remanded with instructions approach Under to the (subject summary judgments set aside and exception above) noted that an fact complaint reinstate and the third supported living being adult child complaint on the docket. Farrar is not a bar to the suit. It is so ordered. Farrar, Goheen, supra; Goheen v. 9 N.J. Taylor (1931); Misc. 154 A. 393 MOISE, CARMODY, COMPTON Taylor, 360 Mo. 232 S.W.2d 382 JJ., concur. Ledgerwood Ledgerwood, Cal.App. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍NOBLE, part (concurring in arrange 300 P. 144 Justice Such *8 dissenting part). voluntary majority arrange ment after is a ment; legal right. agree majority it is As that case not based on I with the the supra: Burbage, stated in Gillikin should be reversed because the erronеous of by summary judgment parents any determination that their had foundation in the rily negligent Am.Jur., the decedent was contributo common law. Parent and however, must, disagree Child, 64; Cafaro, a I matter of law. Cafaro § N.J.L. majority holding by with the that 191 A. the a 472. An examination of those parent may in tort if the child holding emancipated sue his decisions child child to be twenty-one years, upon they age reaching mаjority has reached the that of reveals though parents’ largely living rights, even he is in the were concerned the home, care, custody, control, child, parents under their between services and completely supported earnings by right them. sue child and the confined, and recover therefor. As so third-party action the defendant’s parental emancipation general terms in its upon entirely against depends signifies a surrender renunciation of father, decedent, whether Warren’s rights concerning correlative and duties against right action have had of would care, custody earnings Upon a child. of Galindo, Rodgers him in tort. twenty-one attaining years age, but not of recognize majority 360 P.2d 400. The before, the child elect to sever principle, but that a conсlude relationship and the concurrence of the against can maintain a tort a child action parent is not essential to make the severance twenty-one age reached who has of complete Alexandria effective. years regardless the child of the fact that 229; Bethlehem, Am.Dec. N.J.L. remains and is home Delaware, Ramsay, 117; Brown v. 29 N.J.L. dependent upon suрport. parents for (2d Petrowsky, L. R.R. v. F. 554 & W. The majority, contrary I consider to what then, 1918). question, whether Cir. authority, but weight has to sever manifested an election decisions, contrary to the better-reasoned reaching the relationship upon upon that reach this the basis conclusion twenty-one age of and thus become matter emancipated child- becomes as a emanсipated is one fact. years age. becoming twenty-one law ap- Pointing out that has no New Mexico case, by the In the instant bound we are statute, apply majority what plicable undisputed supporting facts the motion declaring they rule term common-law summary judgment. that even These are matter of as a law infant to age of though Warren had reached twenty-one. -he reaches twenty-one years, attending he was home, University, parents’ Academically, living a con- appears to be there ques- being authority supported and was them. division of siderable emancipation nothing children contains to indicate whether record tion'of *9 minority, the family injury during child’s occurred to sever the had elected Warren disability becoming did not has not vanish her relationship. Upon facts there these emancipated by marriage. Certainly, the family relation- the been that termination of complete prevent same sound considerations which necessary the ship to constitute parent upon be- suing for such a child from its permits a suit emancipation which coming emancipated apply prevent child parent against child. to by the home, analogous a determina- who continues to live the to The situation control, care, custody doctrine family-purpose be under the the tion whether supported by parents adult from maintain- used an its applies to motor vehicle ing disability such a suit. The to sue does Corn, Burkhart child. In not, law, disappear upon parents who as matter of held that 284 P.2d we twenty-one family reaching age years. child for use an automobile furnished circumstances, family doctrine, were, Under family-purpose under the relationship upon public policy negligent operation an adult which the liable for its denying right grounded to sue is home, parents’ lived in the married son who just strong an un- the case of ranch, and used worked for them on their course, emancipated the- minor child. Of days the vehicle on off. right rule which denies a child the sue its denying unemancipated The rule parent applies equal right force to the right minor child the to maintain an action parent of a I to sue child. can see no grounded upon was sound logic may holding parent or reason in that a Noble, public policy in Nahas v. merely not sue an adult child for 139, 420 P.2d of the rule basis becаuse the accident occurred while necessity encouragement rests in the minor, same time family holding discipline. by parents that if the accident occurred on the Suits twenty-first birthday child’s against a child were said in Nahas to “tend though sue even same relation- disrupt family relationship because ship birthday. exists as before his antagonism implicit in such suits.” In Nahas we not denied a minor un- third-party The dismissal of the com- right child the to sue its plaint against Fitzgerald should parent but, likewise, held that where affirmed.