{ "id": 2773162, "name": "Fidells L. B. MWIJAGE, Plaintiff-Appellant, v. Isaac Kipkech KIPKEMEI et al., Defendants-Appellees", "name_abbreviation": "Mwijage v. Kipkemei", "decision_date": "1973-06-27", "docket_number": "No. 1165", "first_page": "360", "last_page": "363", "citations": [ { "type": "official", "cite": "85 N.M. 360" }, { "type": "parallel", "cite": "512 P.2d 688" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "78 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322021 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0548-01" ] }, { "cite": "80 N.M. 310", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5362726 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0310-01" ] }, { "cite": "82 N.M. 633", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326812 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0633-01" ] }, { "cite": "60 N.M. 479", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590387 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/60/0479-01" ] }, { "cite": "69 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2792004 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0091-01" ] }, { "cite": "84 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765063 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0776-01" ] }, { "cite": "39 A.L.R.3d 207", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "80 N.M. 564", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0564-01" ] }, { "cite": "77 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808662 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0052-01" ] }, { "cite": "78 N.M. 696", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324582 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/78/0696-01" ] }, { "cite": "79 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741241 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0506-01" ] }, { "cite": "74 N.M. 760", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2800988 ], "weight": 4, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0760-01" ] }, { "cite": "82 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330878 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0746-01" ] }, { "cite": "63 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777122 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/63/0352-01" ] } ], "analysis": { "cardinality": 484, "char_count": 8449, "ocr_confidence": 0.712, "pagerank": { "raw": 2.1782271067813043e-07, "percentile": 0.7720040820912725 }, "sha256": "9cb4b300acd3d059dd37cafc7884b0b6c41bb20a7dc37a16f465b2ba6430fcf3", "simhash": "1:0b01be95aded8e62", "word_count": 1385 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "Fidells L. B. MWIJAGE, Plaintiff-Appellant, v. Isaac Kipkech KIPKEMEI et al., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis automobile accident case involves New Mexico\u2019s \u201cguest\u201d statute. Section 64-24-1, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2). While driving, defendant\u2019s car was involved in a collision with another vehicle. Plaintiff was an occupant of the car driven by defendant. Plaintiff was being transported in a car owned by defendant without payment for the transportation. No claim is made that defendant\u2019s conduct was other than ordinary negligence. Plaintiff\u2019s suit for personal injuries named the captioned defendants. All' were dismissed except Kipkemei. No issue is raised as to these dismissals. Summary judgment in favor of Kipkemei was granted on the basis of \u00a7 64-24\u20141, supra. Plaintiff appeals from the summary judgment, asserting: (1) the statute is unconstitutional and (2) plaintiff was not a guest.\nConstitutionality.\nVarious contentions are presented as to why the statute is unconstitutional. We consider only the constitutional claims presented to the trial court. In Re Reilly\u2019s Estate, 63 N.M. 352, 319 P.2d 1069 (1957); Saiz v. City of Albuquerque, 82 N.M. 746, 487 P.2d 174 (Ct.App.1971).. Thus, we do not consider the claim based on \u00a7 64-24-2, N.M.S.A.1953 (2d Repl.Vol. 9, pt, 2); the doctrine of respondeat superior; the meaning of \u201cinjury\u201d and \u201closs\u201d in \u00a7 64-24-1, supra; the meaning of \u201creleasing\u201d and \u201cinjuries\u201d in the title of the act; and the contention that since our statute was taken from Connecticut, and Connecticut repealed its statute, that somehow this made New Mexico\u2019s statute unconstitutional.\nThe claims of unconstitutionality presented to the trial court, and which we consider, are: (a) the title to \u00a7 64\u201424-1, supra, violates N.M.Const. Art. -IV, \u00a7 16, and (b) \u00a7 64-24\u20141, supra, is void for vagueness because the word \u201cguest\u201d is not defined. These constitutional claims differ from the constitutional attacks made in other cases. See Gallegos v. Wallace, 74 N.M. 760, 398 P.2d 982 (1964); Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968); Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (Ct.App.1967).\n(a) Title.\nThe title to the law which enacted \u00a7 64-24-1, supra, reads :\n\u201cAn act releasing owners of motor vehicles from responsibility for injuries to passengers therein.\u201d\nSection 64-24\u20141, supra, reads.:\n\u201cNo person transported by the. owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.\u201d\nPrior decisions have held that \u00a7 64\u201424-1, supra, applies only to owners. Gallegos v. Wallace, supra; Cortez v. Martinez, supra; Lopez v. Barreras, 77 N.M. 52, 419 P.2d 251 (1966); Romero v. Tilton, supra; Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App.1969). Thus, the references to \u201coperator\u201d in \u00a7 64\u201424\u20141, supra, have been eliminated from the statute.\nSection 64-24-1, supra, refers to a guest. The title, quoted above, refers to passengers. Plaintiff contends the reference to \u201cguest\u201d is in violation of N.M.Const. Art. IV, \u00a7 16. Plaintiff\u2019s position is that N.M. Const. Art. IV, \u00a7 16 requires the subject of every bill to be expressed in the title; that \u201cguest\u201d is not referred to in the title; that the reference to \u201cpassengers\u201d in the title does not give reasonable notice of the references to \u201cguest\u201d in the body of the statute.\n\u201c * * * [T]he details of a statute must be germane or related to the subject matter expressed in the title.\u201d City of Albuquerque v. Garcia, 84 N.M. 776, 508 P.2d 585 (1973). The title need not be an index of everything in the act, but need only give notice of the subject matter of the legislation. Gallegos v. Wallace, supra.\nThe portion of the title with which we are concerned is \u201cpassengers [in motor vehicles].\u201d Plaintiff gives several examples of \u201cpassengers\u201d who are not guests; he does not show how a guest in an automobile is not a passenger. Obviously, a passenger in an automobile can include a person in the automobile as a guest. See Davis v. Hartley, 69 N.M. 91, 364 P.2d 349 (1961); Hobbs v. Irwin, 60 N.M. 479, 292 P.2d 779 (1956). The word \u201cguest\u201d is germane to the subject \u201cpassengers.\u201d Section 64-24-1, supra, does not violate N.M.Const. Art. IV, \u00a7 16.\n(b) Asserted vagueness.\nSection 64-24 \u2014 1, supra, does not define the words it uses. Because \u201cguest\u201d is not defined, plaintiff asserts the statute is \u201c * * * unconstitutional as being vague and ambiguous and constituting an unconstitutional delegation of a legislative function to the Courts.\u201d The claim of vagueness is based on the fact that New Mexico Uniform Jury Instructions, Civil, do not define \u201cguest\u201d and the committee that drafted the instructions was unable to agree on a definition. See N.M. U.J.I. 9.8, committee comment. The claim of an unconstitutional delegation of legislative function is that \u201cguest\u201d is the \u201cheart\u201d of \u00a7 64 \u2014 24\u20141, supra, and, therefore, it was the responsibility of the Legislature to define that term.\nThe answer to plaintiff\u2019s claims is that statutory words are presumed to be used in their ordinary and usual sense. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). The words used are to be given their ordinary meaning unless a different intent is clearly indicated. Winston v. New Mexico State Police Board, 80 N.M. 310, 454 P.2d 967 (1969). No intent is indicated in \u00a7 64-24-1, supra, that other than ordinary meaning is to be given to the word \u201cguest.\u201d\nHere, not only do we give \u201cguest\u201d its ordinary meaning, but we give an ordinary meaning to the word as it is used in the statute. Section 64 \u2014 24\u20141, supra, refers to a person transported as \u201c * * * guest without payment for such transportation. * * * \u201d Thus, \u201cpayment\u201d is not part of the meaning of \u201cguest.\u201d See Archie v. Smith, 78 N.M. 548, 434 P.2d 73 (Ct.App.1967). With payment eliminated, \u201cguest\u201d is simply one to whom hospitality is extended; the \u201cguest\u201d in \u00a7 64 \u2014 24\u20141, supra, is the person who accepts the transportation without payment. Webster\u2019s Third New International Dictionary (1966).\n\u201cGuest\u201d in \u00a7 64-24-1, supra, is not unconstitutionally vague. The Legislature did not unconstitutionally delegate its legislative function in using that word.\nWhether plaintiff was a guest.\nPlaintiff and Kipkemei were foreign students at New Mexico State University. The Foreign Student Office of the University arranges for newly arriving students to be met. Kipkemei was sent to meet plaintiff when he arrived in El Paso on the day of the accident. Kipkemei met plaintiff and took him to the Foreign Student Office. There is a conflict in the deposition testimony as to whether Kipkemei, after the check-in at the Foreign Student Office, was to \u201csettle\u201d plaintiff for the weekend. Whether it was Foreign Student Office instructions or plaintifff\u2019s individual desire, plaintiff went to Kipkemei\u2019s trailer where he had supper. It was on a sight-seeing trip after supper that the accident occurred.\nSection 64-24-1, supra, refers to \u201chis\u201d guest; that is, the-guest of the owner of the car. Plaintiff contends he was not the guest of Kipkemei but, under the above facts, the guest of the University. Plaintiff presents this as an either-or proposition ; that is, that he could not be the guest of the University and also be the guest of Kipkemei.\nThe applicability of \u00a7 64-24-1, supra, depends on whether plaintiff was the guest of Kipkemei. The uncontroverted showing in the depositions of Kipkemei and Twala, another occupant of the car on the sightseeing drive, was that plaintiff was being transported in Kipkemei\u2019s car as KipkeT mei\u2019s guest. Whether plaintiff may also have been the University\u2019s guest is immaterial to plaintiff\u2019s suit against Kipkemei. Once plaintiff was shown to have been Kipkemei\u2019s guest, \u00a7 64 \u2014 24-1, supra, was applicable to plaintiff\u2019s suit against Kipkemei.\nThe summary judgment is affirmed.\nIt is so ordered.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John A. Anderson by Glen B. Neumeyer, Sosa & Neumeyer, Las Cruces, for plaintiff-appellant.", "Thomas A. Sandenaw, Jr., Shipley, Durrett, Conway & Sandenaw, Alamogordo, for defendants-appellees." ], "corrections": "", "head_matter": "512 P.2d 688\nFidells L. B. MWIJAGE, Plaintiff-Appellant, v. Isaac Kipkech KIPKEMEI et al., Defendants-Appellees.\nNo. 1165.\nCourt of Appeals of New Mexico.\nJune 27, 1973.\nJohn A. Anderson by Glen B. Neumeyer, Sosa & Neumeyer, Las Cruces, for plaintiff-appellant.\nThomas A. Sandenaw, Jr., Shipley, Durrett, Conway & Sandenaw, Alamogordo, for defendants-appellees." }, "file_name": "0360-01", "first_page_order": 422, "last_page_order": 425 }