{ "id": 2872090, "name": "Robert BALDONADO, Plaintiff, v. NAVAJO FREIGHT LINES, INC., a New Mexico Corporation, and Robert A. Whedon, Defendants; NAVAJO FREIGHT LINES, INC., and Robert A. Whedon, Third-Party Plaintiffs-Appellants, v. Ruth Ann English BALDONADO, Third-Party Defendant-Appellee", "name_abbreviation": "Baldonado v. Navajo Freight Lines, Inc.", "decision_date": "1977-01-18", "docket_number": "No. 2553", "first_page": "284", "last_page": "291", "citations": [ { "type": "official", "cite": "90 N.M. 284" }, { "type": "parallel", "cite": "562 P.2d 1138" } ], "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": "77 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808965 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "325" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0321-01" ] }, { "cite": "135 A.L.R. 1330", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1941, "opinion_index": 0 }, { "cite": "114 P.2d 965", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1941, "pin_cites": [ { "page": "967" } ], "opinion_index": 0 }, { "cite": "9 Wash.2d 197", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 5300864 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/wash-2d/9/0197-01" ] }, { "cite": "213 Kan. 751", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 552241 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/kan/213/0751-01" ] }, { "cite": "214 Kan. 456", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 555435 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/kan/214/0456-01" ] }, { "cite": "133 A.L.R. 1115", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1941, "opinion_index": 0 }, { "cite": "111 Mont. 539", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5072633 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/mont/111/0539-01" ] }, { "cite": "107 F.2d 682", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1046156 ], "year": 1939, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/f2d/107/0682-01" ] }, { "cite": "511 P.2d 566", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "85 N.M. 240", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770441 ], "opinion_index": 0, "case_paths": [ "/nm/85/0240-01" ] }, { "cite": "25 P. 930", "category": "reporters:state_regional", "reporter": "P.", "year": 1891, "opinion_index": 0 }, { "cite": "5 N.M. 590", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3624377 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/nm/5/0590-01" ] }, { "cite": "62 N.M. 147", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712667 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "151" }, { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/nm/62/0147-01" ] }, { "cite": "81 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5368572 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0460-01" ] }, { "cite": "88 N.M. 308", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836548 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "314" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0308-01" ] }, { "cite": "87 N.M. 213", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833912 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0213-01" ] }, { "cite": "68 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718452 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0215-01" ] }, { "cite": "80 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355445 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/80/0773-01" ] }, { "cite": "217 N.W.2d 771", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10760558 ], "opinion_index": 1, "case_paths": [ "/nw2d/217/0771-01" ] }, { "cite": "96 Idaho 19", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4444278 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/idaho/96/0019-01" ] }, { "cite": "17 L.Ed. 520", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3472079 ], "year": 1863, "pin_cites": [ { "parenthetical": "affecting property rights" } ], "opinion_index": 1, "case_paths": [ "/us/68/0175-01" ] }, { "cite": "264 Minn. 279", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 366467 ], "weight": 2, "year": 1962, "opinion_index": 1, "case_paths": [ "/minn/264/0279-01" ] }, { "cite": "163 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 1 }, { "cite": "18 Ill.2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328152 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/ill-2d/18/0011-01" ] }, { "cite": "44 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566901 ], "weight": 2, "year": 1940, "opinion_index": 1, "case_paths": [ "/nm/44/0623-01" ] }, { "cite": "381 U.S. 618", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172443 ], "weight": 3, "year": 1965, "opinion_index": 1, "case_paths": [ "/us/381/0632-01" ] }, { "cite": "46 Iowa L.Rev. 600", "category": "journals:journal", "reporter": "Iowa L. Rev.", "year": 1961, "pin_cites": [ { "page": "617" } ], "opinion_index": 1 }, { "cite": "51 Va.L.Rev. 201", "category": "journals:journal", "reporter": "Va. L. Rev.", "year": 1965, "pin_cites": [ { "page": "205" } ], "opinion_index": 1 }, { "cite": "88 N.M. 588", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839152 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/88/0588-01" ] }, { "cite": "287 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369576 ], "weight": 3, "year": 1932, "opinion_index": 1, "case_paths": [ "/us/287/0358-01" ] }, { "cite": "51 Marq.L.Rev. 254", "category": "journals:journal", "reporter": "Marq. L. Rev.", "year": 1967, "opinion_index": 1 }, { "cite": "61 Va.L. Rev. 1557", "category": "journals:journal", "reporter": "Va. L. Rev.", "year": 1975, "opinion_index": 1 }, { "cite": "77 N.M. 321", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808965 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0321-01" ] }, { "cite": "213 Kan. 751", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 552241 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/kan/213/0751-01" ] }, { "cite": "214 Kan. 456", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 555435 ], "weight": 2, "year": 1974, "opinion_index": 1, "case_paths": [ "/kan/214/0456-01" ] }, { "cite": "88 N.M. 308", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836548 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/88/0308-01" ] } ], "analysis": { "cardinality": 939, "char_count": 23388, "ocr_confidence": 0.804, "pagerank": { "raw": 6.093597959626947e-08, "percentile": 0.3803957296352027 }, "sha256": "48e3915b1eb46d893e171b3ff39c5594246870856be3e2e6bec5f991366aaeed", "simhash": "1:8742621931fc14be", "word_count": 3838 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "LOPEZ, J., dissents." ], "parties": [ "Robert BALDONADO, Plaintiff, v. NAVAJO FREIGHT LINES, INC., a New Mexico Corporation, and Robert A. Whedon, Defendants. NAVAJO FREIGHT LINES, INC., and Robert A. Whedon, Third-Party Plaintiffs-Appellants, v. Ruth Ann English BALDONADO, Third-Party Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThis appeal involves only the dismissal of a third-party complaint for two reasons: (1) The third-party complaint against the third-party defendant for contribution was barred by the New Mexico \u201cguest statute\u201d [\u00a7 64-24-1, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2)], and (2) the third-party complaint against third-party defendant for property damage and personal injury was not proper under Rules 14(a) and 18(a) of the Rules of Civil Procedure [\u00a7 21-l-l(14)(a), 18(a), N.M. S.A. 1953 (Repl.Vol. 4)]. We affirm.\nOn October 30, 1974, an automobile-truck accident occurred in Gallup, New Mexico. The automobile was driven by Ruth Ann English. Robert Baldonado was a guest in this car. The truck was owned by Navajo Freight Lines and it was operated by Robert A. Whedon.\nBaldonado sued Navajo and Whedon for personal injuries. Navajo and Whedon filed a third-party complaint against English. Navajo sued for contribution and property damage. Whedon sued for personal injuries.\nThe English motion to dismiss was granted.\nA. Navajo\u2019s claim for contribution was barred by the New Mexico \"guest statute.\u201d\nSection 64-24-1, supra, reads:\nNo person transported by the owner or operator of a motor vehicle as his guest shall have a cause of action for damages against such owner or operator for injury\nUnder this statute, Baldonado had no claim for damages against English. English was immune from such suit. Therefore, the Joint Tortfeasors Act [\u00a7 24-1-11, et seq., N.M.S.A. 1953 (Vol. 5)] protected English from a third-party complaint for contribution. Rodgers v. Galindo, 68 N.M. 215, 360 P.2d 400 (1961), overruled on other grounds, Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975).\nNavajo and Whedon claim that this concept was abolished because the \u201cguest statute\u201d was declared unconstitutional on September 23, 1975. McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975). The Court said:\nAfter due deliberation, it is the opinion of this court that the decision holding our guest statute unconstitutional shall be given modified prospectivity. That is, this newly announced rule shall apply to the case at bar, all similar pending ac tions and all cases which may arise in the future. [Emphasis added] [88 N.M. at 314, 540 P.2d at 244],\n\u201cPurely prospective\u201d application means that the overruling decision shall not apply to the parties in the case at bar. A \u201cmodified prospective\u201d application means a qualified application: (1) that the McGeehan decision shall apply to the case at bar, (2) all similar pending actions, and (3) all cases which may arise in the future.\nWe must determine if the case at bar is a \u201cpending action\u201d or a case which \u201cmay arise in the future.\u201d It is neither.\n(1) This is not a \u201cpending action.\"\n\u201cA civil action is commenced by filing a complaint with the court.\u201d Section 21-1-1(3), N.M.S.A. 1953 (Repl.Vol. 4). \u201cAn action is to be regarded as pending from the time of its commencement until its final termination.\u201d 1 C.J.S. Actions \u00a7 142 (1936). Navajo\u2019s third-party complaint was not pending in court, at the time of the McGeehan decision. Brown v. Board of Education, 81 N.M. 460, 468 P.2d 431 (Ct.App.1970).\n(2) This is not a case that \u201cmay arise in the future.\u201d\nWe are confronted with the meaning of the word \u201ccase,\u201d and the words \u201carise in the future.\u201d \u201cThe word \u2018case\u2019 in a legal sense, means \u2018suit.\u2019 \u201d State v. Reed, 62 N.M. 147, 151, 306 P.2d 640, 642 (1957). The word \u201csuit\u201d is more general than the word \u201caction\u201d because it applies to equitable, criminal and legal proceedings. In Re Sloan, 5 N.M. 590, 25 P. 930 (1891).\nUnder Rule 3 of the Rules of Civil Procedure, supra, the words \u201ccivil action\u201d are broad and used interchangeably with the words \u201ccivil case.\u201d See Echols v. N. C. Ribble Company, 85 N.M. 240, 511 P.2d 566 (Ct.App.1973).\nA \u201ccause of action\u201d is not easily defined, but for purposes of this case, it means those facts which give rise to a right of action. 1 C.J.S. Actions \u00a7 8(c) (1936); 1 Am.Jur.2d Actions \u00a7 1 (1962). A cause of action accrues or arises when \u201cthere is an existing right to sue forthwith\u201d. Reich v. Van Dyke, 107 F.2d 682, 683 (3rd Cir. 1939). \u201cThus a cause of action arises when it springs up, originates, comes into being, becomes operative, presents itself.\u201d Bergin v. Temple, 111 Mont. 539, 111 P.2d 286, 289, 133 A.L.R. 1115 (1941).\nWhat is meant by a case \u201cwhich may arise in the future?\u201d It does not mean a case \u201cwhich may be filed in the future,\u201d or \u201cwhich may be commenced in the future.\u201d If this were the intent of the court, it would have so stated. In Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974), the court was confronted with Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), pending in its court, which declared the Kansas \u201cguest statute\u201d unconstitutional without any provision for modified prospectivity. Vaughn concluded that Henry \u201cbe given retroactive application to all similar cases pending in the courts of [Kansas] on January 26, 1974, and to cases filed thereafter regardless of when the causes of action accrued ..\u201d [Emphasis added] [521 P.2d at 271]. If the emphasized language had appeared in McGeehan, English would not have the benefit of the \u201cguest statute.\u201d\n\u201cA cause of action or suit arises, according to the universal rule in courts of both law and equity, when and as soon as the party has a right to. apply to the proper tribunal for relief . ..\u201d [Emphasis added]. Washington Sec. Co. v. State, 9 Wash.2d 197, 114 P.2d 965, 967, 135 A.L.R. 1330 (1941).\nIn the instant case, the accident occurred on October 30, 1974. Navajo\u2019s causes of action arose at that time. Navajo\u2019s \u201ccase\u201d arose at that time out of its right of action because a civil action could have commenced at that time. This date was long before the McGeehan opinion. Modified prospectivity therein granted English the benefit of the \u201cguest statute.\u201d\nThe trial court properly barred the first count of Navajo\u2019s third-party complaint for contribution.\nB. Navajo\u2019s and Whedon\u2019s claims for property damage and personal in jury were not proper under Rules 14(a) and 18(a).\nCounts II and III of the third-party complaint were, respectively, independent claims of property damage to Navajo\u2019s truck and personal injuries to Whedon arising out of the same accident.\nEnglish moved to dismiss counts II and III on the ground that they did not state a claim for relief under Rule 14(a) of the Rules of Civil Procedure. The trial court sustained the motion to dismiss. We agree.\nRule 14(a) provides in part:\nAt any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff\u2019s claim against him. [Emphasis added].\nThis emphasized language does not include an independent action by Navajo and Whedon against a third party.\nRule 18(a) provides in part:\n[T]he defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims . . . as he may have against an opposing party.\n\u201cRules of Civil Procedure 14(a) and 18(a) limit third-party complaints to cases where there is a secondary liability against the third-party defendant arising out of the plaintiff\u2019s claim against the original defendant.\u201d Hancock v. Berger, 77 N.M. 321, 325, 422 P.2d 359, 362 (1967). Navajo\u2019s and Whedon\u2019s third-party claims against English are not based on plaintiff\u2019s claim against Navajo and Whedon, and counts II and III are improperly joined.\nIn Navajo\u2019s reply brief, it states:\nNAVAJO concedes that their Third Party Claims for property damage and personal injury depend upon the validity of their claim for contribution from ENGLISH and that if this Court finds that the Guest Statute applies to this case, then these claims are improperly joined.\nWe agree.\nAffirmed.\nIT IS SO ORDERED.\nHERNANDEZ, J., concurs.\nLOPEZ, J., dissents.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "LOPEZ, Judge\n(dissenting).\nI dissent.\nThe plaintiff, Robert Baldonado, brought an action for personal injuries and property damage based on the negligence of the defendants, Navajo Freight Lines, Inc., and Robert A. Whedon. The defendants; then filed a third-party complaint against Ruth Ann English Baldonado. This third-party complaint, which sought contribution from a joint tortfeasor, was dismissed. The defendants appeal and I would reverse.\nFor reversal, the defendants present two points: (1) that the claim for contribution is not barred by the New Mexico guest statute; (2) that the claims for property damage and personal injuries were properly joined under Rule 18(a), N.M.R.Civ.P. [\u00a7 21-l-l(18)(a), N.M.S.A.1953 (Repl. Vol. 4, 1970)].\nFacts\nDefendants\u2019 third-party complaint against Ruth Ann English Baldonado was contained in the answer to plaintiff\u2019s complaint. For clarity, we will refer to the third-party defendant as English. The third-party complaint reads as follows:\n\u201cCOUNT ONE\n\u201c2. The Third-Party Claimants have been sued in this cause by ROBERT BALDONADO . for injuries allegedly incurred as a result of an accident on the 30th day of October, 1974\n\u201c3. The accident alleged in the Complaint . . was caused by Third-Party Defendant\u2019s negligent operation of her automobile.\n\u201c4. If the Plaintiff, ROBERT BALDONADO, should recover anything under this Complaint against the Defendants and Third-Party Claimants, they should have judgment over against the Third-Party Defendant for contribution.\n* * * * jfc\n\u201cCOUNT TWO\n\u201cFor its action against the Third-Party Defendant, Third-Party Claimant, NAVAJO FREIGHT LINES, INC., states:\n\u201c2. ... the Third-Party Defendant negligently operated her vehicle causing it to collide with Defendant, NAVAJO FREIGHT LINES, INC.\u2019s, vehicle.\n\u201c3. As a result of the collision described above, the Third-Party Claimant, NAVAJO FREIGHT LINES, INC., incurred the following items of damage:\n\u201cRepairs to its truck $ 880.97\n\u201cLoss of use of its truck for eight $ 600.00 days at $75.00 per day\n\u201cDriver delay expense $ 116.64-\n\u201cTOTAL DAMAGE $1.597.61\n\u201cCOUNT THREE\n\u201cFor his claim against the Third-Party Defendant, Third-Party Claimant, ROBERT A. WHEDON, states:\n\u201c2. . . . the Third-Party Defendant negligently operated her vehicle causing it to collide with defendant, NAVAJO FREIGHT LINES, INC.\u2019s vehicle which Third-Party Claimant, ROBERT A. WHEDON, was then operating.\n\u201c3. As a . result of' Third-Party Defendant\u2019s negligent operation of her vehicle, Third-Party Claimant, ROBERT A. WHEDON, sustained personal injuries.\n\u201c4. In the aforesaid collision, Third-Party Claimant, ROBERT A. WHEDON, sustained injuries necessitating medical treatment and expenses in the amount of $250.00 and suffered general damages in the additional sum of $2,500.00.\u201d\nEnglish did not file a responsive answer but filed a motion to dismiss, asserting that the New Mexico guest statute barred Baldonado\u2019s right to recovery for the negligent operation of the vehicle in which Baldonado was a passenger. Consequently, English asserted that the defendants\u2019 right to contribution from her was also barred. The motion to dismiss further asserted an improper joinder of claims. The court entered an order and judgment which accepted English\u2019s assertions.\nOn September 23, 1975, the Supreme Court of New Mexico decided McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975). McGeehan found that unreasonable classifications created by the New Mexico guest statute were an unconstitutional denial of equal protection.\nThe New Mexico guest statute at the time of the McGeehan case was \u00a7 64-24-1, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2, 1972) which reads:\n\u201cGuests in motor vehicles \u2014 Right of action for damages for injury, death or loss. \u2014 No 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 reckless disregard of the rights of others.\u201d\nOn November 17, 1975 Baldonado sued Navajo and Whedon. The defendants\u2019 third-party complaint was filed December 29, 1975.\nPoint I\nNavajo\u2019s claim for contribution is not barred by the New Mexico guest statute.\nThe significant wording of McGeehan is: \u201cAfter due deliberation, it is the opinion of this court that the decision holding our guest statute unconstitutional shall be given modified prospectivity. That is, this newly announced rule shall apply to the case at bar, all similar pending actions and all cases which may arise in the future.\u201d\nThe third-party plaintiffs, Navajo and Whedon, argue that McGeehan applies to the McGeehan case itself, all cases pending at that time, and all cases filed after the decision. This gives the word \u201ccase\u201d its ordinary meaning. I agree.\nEnglish argues that McGeehan applies only to causes of action which accrued after the decision. In other words, that it applies only to the McGeehan case and \u201ccauses of action\u201d which arose afterwards. I disagree. If the court meant McGeehan to apply only to causes of action arising after the overruling decision, it would have used such wording.\nI must also determine what the Supreme Court meant by \u201cmodified prospectivity.\u201d If the court had held that the overruling decision was to be given no retroactive effect, not even to the parties of the overruling case, such a holding would have left it quite clear that the overruling decision had no application to prior events where no litigation had commenced before the time of the overruling decision. If the court had held that the overruling decision was to be given such extensive retroactive effect as to authorize the overturning of prior final judgments, it would have been implicit that if no litigation in connection with prior events was pending, nonetheless the principles established in the overruling case would operate on such events.\nBut where, as in the McGeehan case, the court has held that the overruling decision will be applied retroactively to the parties to the overruling decision, and to other cases pending at the time the overruling case was decided, it is unclear to what extent the overruling decision should apply to prior events which were not the subject of litigation until after the overruling case was decided. When a court\u2019s decision is unclear, the application of a newly announced rule of law has engendered no little confusion and much commentary. See e. g., Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va.L. Rev. 1557 (1975); Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: \u201cProspective Overruling\u201d or \u201cSunbursting,\u201d 51 Marq.L.Rev. 254 (1967-68).\nThe parties agree that the New Mexico Supreme Court has the power to deem a statute unconstitutional, applicable retrospectively or prospectively. Great North-era Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).\nThis is a case of first impression in New Mexico and for guidance I look to other states. The Kansas Supreme Court declared the Kansas guest statute unconstitutional in Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974). In Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974), the court considered the retroactive effect of the overruling decision. The court noted that the cases fall into four categories: (1) purely prospective, where the law declared will not apply even to the parties to the overruling case; (2) limited retroactive, where the law declared will govern the rights of the parties to the overruling case and apply prospectively in all other cases; (3) general retroactive, governing the rights of the parties to the overruling case and to all pending and future cases, unless further litigation is barred by the statute of limitations or jurisdictional rules of appellate procedure; and (4) retroactive, governing the rights of the parties to the overruling case, other cases pending when the overruling case was decided and all future cases, but limited so the new law will not govern the rights of the parties to cases terminated by a judgment or verdict before the overruling decision was announced. I find the reasoning of the Kansas Supreme Court compelling, and conclude that, by \u201cmodified prospectivity,\u201d the New Mexico Supreme Court meant categories (3) and (4) above.\nEnglish cites Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975). That case was modified to apply purely prospectively; i. e., only to torts arising subsequent to the decision. The general rule is that unless there are special circumstances (such as reliance) which require the denial of retroactive application, an overruling decision will be given retroactive as well as prospective application. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 205 (1965); Note, Limitation of Judicial Decisions to Prospective Operation, 46 Iowa L.Rev. 600, 617 (1961). Although the traditional policy is in favor of giving unlimited retroactive effect to an overruling decision, it is now recognized that a court has the power to go to the opposite extreme and overrule a case purely prospectively. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940).\nBut Hicks is not relevant to this case. As stated by Currier in his excellent article, supra, the fault concept of tort liability has generally left little room for reliance. He states:\n\u201cThe history of Anglo-American tort law has been largely that of retroactive judicial expansion of tort liability, without concern for the tortfeasor\u2019s reliance, ever since the action on the case was first recognized \u2014 retroactively\u2014by the fiat of the judges. . More important, the courts need not go as far to protect such reliance in this area as in the property field, because here reliance, such as it is, is at best only one-sided, and to protect it requires denial of equality to tort claimants. . .\u201d51 Va.L.Rev. at\n244 [Citation omitted].\nPure prospectivity has been especially appropriate in cases such as Hicks, where sovereign immunity was overruled, because of the high degree of reliance. The agencies losing immunity would have no opportunity to obtain insurance. Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89 (1959); see also Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795 (1962). In Hicks, stability and the right to rely on existing law seem to have controlled. See also Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 17 L.Ed. 520 (1863) (affecting property rights).\nEnglish also relies on two other cases. In Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974) the Supreme Court of Idaho refers to \u201cmodified prospectivity\u201d as meaning that the newly announced law applies to the case which they decided and also \u201cto all actions arising in the future.\u201d Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974) states:\n\u201cThe decision in this case will govern this case and otherwise will be prospective only, applying to claims for relief accruing on and subsequent to the date of this opinion . . .\nBecause the wording of these cases is different from the wording in McGeehan, these cases are distinguishable.\nI believe the Supreme Court of New Mexico intended McGeehan to apply to that case itself, to cases pending at that time of the decision, and cases or lawsuits filed subsequent to the ruling. This case was filed subsequent to the ruling of McGeehan ; therefore the ruling applies to it. There is no reliance, as in Hicks, which would justify purely prospective application.\nI hold that the court erred in determining that McGeehan did not apply to the instant case. The defense of the guest statute is not applicable and the defendants can imp-lead English as a third-party defendant.\nPoint II\nNavajo\u2019s and Whedon\u2019s claims for property damage and personal injury were properly joined under Rule 18(a), supra. In deciding this issue I must determine whether two rules are applicable. First, Rule 14(a) N.M.R.Civ.P., [\u00a7 21-l-l(14)(a), N.M.S.A. 1953 (Repl. Vol. 4, 1970)]:\n\u201cRule 14. Third-Party practice.\n\u201c(a) When defendant may bring in third-party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff\u2019s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than ten [10] days after he serves his original answer. . . \u201d\nAlso, I must decide whether Rule 18(a) is applicable:\n\u201cRule 18. Joinder of claims and remedies.\n\u201c(a) Joinder of claims. The plaintiff in his complaint or in a reply setting forth a counterclaim and the defendant in an an swer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. . . . There may be a like joinder of . third-party claims if the requirements of Rule . 14 respectively are satisfied.\u201d [Emphasis added].\nBased on my decision that Count I of the third-party complaint stated a claim for contribution, I believe the court erred in dismissing Counts II and III of the third-party complaint. Under Rules 14(a) and 18(a) the defendants had a right to join English as a third-party defendant for these additional claims.\nIn 1966 the federal rules were amended to correct a split of authority. Some courts had read the rules restrictively. Although New Mexico did not amend its Rule 18, I read the rule in the permissive manner which permits joinder. Walden, Civil Procedure in New Mexico \u00a7 6c(3). This conclusion is necessary to effectuate the purpose of the rules of civil procedure; namely, to prevent multiple and circuitous actions, and prevent the possibility of inconsistent results. See e. g., Prager v. Prager, 80 N.M. 773, 461 P.2d 906 (1969).\nThe case of Hancock v. Berger, 77 N.M. 321, 422 P.2d 359 (1967) is not applicable. Therein, the Court held that joinder of an unrelated or independent claim was not void if objection to joinder came at the conclusion of the case. It did not consider whether additional, related claims can be joined in a third-party complaint once the third-party defendant has been properly impleaded under Rule 14(a). The claim which was to be joined in Hancock was unrelated to the plaintiff\u2019s action against the third-party plaintiff. In the instant case all the claims arise out of the same operative facts which gave rise to the original action; therefore, the claims are not unrelated and joinder is proper.\nThe district court having erred, I would reverse the summary judgment and would remand this case for proceedings consistent with my opinion.", "type": "dissent", "author": "LOPEZ, Judge" } ], "attorneys": [ "John A. Myers, Coors, Singer & Broullire, Albuquerque, for appellants.", "Charles B. Larrabee, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for appellee." ], "corrections": "", "head_matter": "562 P.2d 1138\nRobert BALDONADO, Plaintiff, v. NAVAJO FREIGHT LINES, INC., a New Mexico Corporation, and Robert A. Whedon, Defendants. NAVAJO FREIGHT LINES, INC., and Robert A. Whedon, Third-Party Plaintiffs-Appellants, v. Ruth Ann English BALDONADO, Third-Party Defendant-Appellee.\nNo. 2553.\nCourt of Appeals of New Mexico.\nJan. 18, 1977.\nJohn A. Myers, Coors, Singer & Broullire, Albuquerque, for appellants.\nCharles B. Larrabee, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for appellee." }, "file_name": "0284-01", "first_page_order": 320, "last_page_order": 327 }