{ "id": 1584585, "name": "EQUITABLE GENERAL INSURANCE COMPANY, a foreign insurance corporation, and Robert Smith, Plaintiffs-Appellants, v. Jerry G. SILVA, Defendant-Appellee", "name_abbreviation": "Equitable General Insurance v. Silva", "decision_date": "1983-01-04", "docket_number": "No. 5849", "first_page": "371", "last_page": "374", "citations": [ { "type": "official", "cite": "99 N.M. 371" }, { "type": "parallel", "cite": "658 P.2d 446" } ], "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": "79 N.M. 549", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747988 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0549-01" ] }, { "cite": "219 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "7 Ohio App.2d 46", "category": "reporters:state", "reporter": "Ohio App. 2d", "case_ids": [ 1461096 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ohio-app-2d/7/0046-01" ] }, { "cite": "8 Ariz.App. 33", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1230684 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ariz-app/8/0033-01" ] }, { "cite": "366 A.2d 1040", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0 }, { "cite": "279 Md. 497", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1886258 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/md/279/0497-01" ] }, { "cite": "37 N.M. 606", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575379 ], "weight": 3, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0606-01" ] }, { "cite": "604 P.2d 204", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10446274 ], "opinion_index": 0, "case_paths": [ "/p2d/604/0204-01" ] }, { "cite": "97 N.M. 358", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555079 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/97/0358-01" ] }, { "cite": "46 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563104 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/nm/46/0084-01" ] }, { "cite": "71 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5349521 ], "weight": 4, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0329-01" ] }, { "cite": "98 N.M. 625", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582577 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/98/0625-01" ] }, { "cite": "69 A.L.R.2d 978", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1960, "opinion_index": 0 } ], "analysis": { "cardinality": 508, "char_count": 9664, "ocr_confidence": 0.821, "pagerank": { "raw": 6.067549986382052e-08, "percentile": 0.3748826669045184 }, "sha256": "6a2f24d2f739e741456d8436f54359ee83c593def13d536eb59c8c06880a3c80", "simhash": "1:9aee52e731f69858", "word_count": 1617 }, "last_updated": "2023-07-14T20:36:40.875408+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and DONNELLY, JJ., concur." ], "parties": [ "EQUITABLE GENERAL INSURANCE COMPANY, a foreign insurance corporation, and Robert Smith, Plaintiffs-Appellants, v. Jerry G. SILVA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThe dispositive issue is the applicability of \u00a7 66-5-41, N.M.S.A.1978 to the facts of this case. Section 66-5 \u2014 41 states:\nNo person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized hereunder or is in violation of any of the provisions of this article.\nSilva, the owner, \u201cloaned his vehicle to Menchaca to go to get a hamburger at a local fast food store in [the municipality of] Bernalillo. The authorized use was for 30 minutes and involved a round trip distance of less than two miles. Menchaca drove the vehicle beyond the limits so authorized, and into the City of Albuquerque, where the accident occurred.\u201d Menchaca failed to obey a traffic signal; he drove through a red traffic signal and collided with the vehicle being driven by Smith. Smith and Equitable (Equitable General Insurance Company), Smith\u2019s collision insurance carrier, and as subrogee of Smith, sought to recover the amount of the damage to Smith\u2019s vehicle.\nMenchaca is not a party; the trial court\u2019s finding, supported by substantial evidence, is that Menchaca was \u201cin this country illegally and without federal or state authorization.\u201d The evidence is to the effect that Menchaca was deported to Mexico after the accident. The plaintiffs sought to recover their damages from Silva; the trial court held for Silva.\nPlaintiffs appeal, contending: (1) that the trial court erred in ruling that Silva did not violate \u00a7 66-5 \u2014 41; (2) that the violation of \u00a7 66-5 \u2014 41 was a foreseeable proximate cause of the accident; and (3) that Menchaca\u2019s deviation from his authorized use does not relieve Silva from liability for Menchaca\u2019s negligent operation of Silva\u2019s car. Cases cited in Annot., Automobiles\u2014Unlicensed Operator, 69 A.L.R.2d 978 (1960), support the second and third contentions; however, see Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982), Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), and State v. Seward, 46 N.M. 84, 121 P.2d 145 (1942). We do not decide these two claims because they are dependent on the first issue and we hold that the trial court could properly rule, under the evidence, that there was no violation of \u00a7 66-5 \u2014 41.\nGenerally speaking, New Mexico requires that a person operating a motor vehicle upon public roads be licensed by the state. See \u00a7 66-5-2, N.M.S.A.1978 (1982 Cum. Supp.) and \u00a7 66-5-4, N.M.S.A.1978. Plaintiffs correctly assert that such a requirement is for the protection of the public, which included Smith. See 69 A.L.R.2d, supra, at 981; Lopez v. Maez, supra; Bouldin v. Sategna, supra.\nThe trial court ruled that Silva was not negligent in lending his vehicle to Menchaca. The evidence supports this ruling. Plaintiffs contend that negligent entrustment is not pertinent. We agree; in New Mexico a violation of a statute enacted for the benefit of the public, and which included Smith, would be negligence per se. See U.J.I.Civ. 15.1, N.M.S.A.1978 (1980 Repl.Pamph.), the Committee Comment thereto and Bouldin v. Sategna, supra.\nPlaintiffs claim that Silva violated \u00a7 66-5-41 \u201cby authorizing and knowingly permitting a motor vehicle owned by him to be driven upon a New Mexico highway by an unauthorized and unlicensed driver.\u201d The trial court\u2019s finding, supported by substantial evidence, is that prior to Silva loaning his car, \u201cMenchaca had exhibited what appeared to be a valid driver\u2019s license.\u201d Plaintiffs assert that this finding is of no consequence because of another finding. This finding, also supported by substantial evidence is that \u201cSilva had voluntarily loaned his vehicle to Menchaca, having reason to know that Menchaca was an illegal alien.\u201d\nPlaintiffs state:\n\u201cIt is self evident and no authority is needed for the proposition that an individual who is in this country illegally and without federal or state authorization . .. could not have had a valid driver\u2019s license to drive in New Mexico, nor could he have been legally authorized to do so.\u201d\nIn answering this argument we proceed on the basis that the license exhibited by Menchaca was a New Mexico license; we do so because there is nothing suggesting it was a license issued in Mexico, see \u00a7 66-5 \u2014 4(B), and because the inference from the testimony is that the license exhibited was a New Mexico license. The license exhibited by Menchaca is not in evidence.\nWe assume, but do not decide, that because Menchaca was in New Mexico without authorization and because his status was that of an illegal alien, he could not have been validly licensed by New Mexico to drive and that the license he exhibited was not valid. Thus, we proceed on the basis that the second part of \u00a7 66-5-41 had been met \u2014 that Menchaca was either \u201cnot authorized\u201d or \u201cin violation of any of the provisions\u201d of Chapter 66, Article 5, Part 1, N.M.S.A.1978, concerning the licensing of operators of motor vehicles. Even though we make this assumption, we note that \u00a7 66-5-5, N.M.S.A.1978 (1982 Cum.Supp.), does not expressly prohibit the licensing of illegal aliens.\nThe assumption that Menchaca did not and could not have had a valid New Mexico license does not dispose of the question of whether Silva violated \u00a7 66-5 \u2014 41. To violate \u00a7 66-5 \u2014 41 Silva must \u201cauthorize or knowingly permit\u201d Menchaca to drive without being validly licensed to do so.\n\u201cAuthorize or knowingly permit\u201d is used by the parties in the sense that Silva \u201cknew or should have known\u201d that Menchaca could not be licensed to drive in New Mexico. The \u201cknow or should have known\u201d requirement applies where the theory of recovery is negligent entrustment. Bryant v. Gilmer, 97 N.M. 358, 639 P.2d 1212 (Ct.App. 1982); Moore v. Kiljander, 604 P.2d 204 (Wyo.1979). The word \u201cknowledge\u201d in a statute has been held to encompass \u201cknow or should have known\u201d. Taylor v. Hanchett Oil Co., 37 N.M. 606, 27 P.2d 59 (1933).\nConsidering a Maryland statute that, like \u00a7 66-5-41, used the words \u201cauthorize or knowingly permit\u201d, Morrell v. Williams, 279 Md. 497, 366 A.2d 1040, 1043 (1976), stated:\nThe critical point is that a violation of \u00a7 6-305 of the Motor Vehicle Code requires proof that the vehicle owner authorized the use of a motor vehicle by a person whom he knew to be without a license, while the doctrine of negligent entrustment may be invoked only against the vehicle owner who knows or should have known that the use would involve an inordinate risk of physical harm.\nHowever, after making the above-quoted distinction, Morrell stated that the case, which involved an unlicensed driver, \u201cmay be likened\u201d to a case applying the \u201cknown or should have known\u201d requirement. Compare McDowell v. Davis, 8 Ariz.App. 33, 442 P.2d 856 (1968).\nOn the basis (1) of Taylor v. Hanchett Oil Co., supra, and Morrell v. Williams, supra, and (2) of the similarity between the language of \u00a7 66-5 \u2014 41 and a theory of recovery for negligent entrustment, we agree with the parties and hold that \u201cauthorize or knowingly permit\u201d in \u00a7 66-5 \u2014 41 means \u201cknow or should have known\u201d. Thus, Silva could violate this statute, regardless of his actual knowledge, if he should have known that Menchaca was not validly licensed to drive.\nThere is no evidence that Silva actually knew that Menchaca was not validly licensed to drive. See City of Cincinnati v. Christy, 7 Ohio App.2d 46, 219 N.E.2d 45 (1966).\nThe trial court found that Silva had reason to know that Menchaca was an illegal alien, but refused plaintiffs\u2019 requested finding that Silva had \u201creason to know that Menchaca was not licensed or authorized to operate a motor vehicle on public roadways in New Mexico.\u201d Plaintiffs had the burden of persuading the trial court that Silva violated \u00a7 66-5 \u2014 41 on the basis of the \u201cshould have known\u201d requirement. Under the evidence \u2014 Menchaca\u2019s exhibition of an apparently valid driver\u2019s license even though Silva had reason to know that Menchaca was an illegal alien \u2014 the trial court could properly reject the requested finding. The trial court\u2019s refusal of the requested finding is a finding against the plaintiffs, who had the burden of proof. Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968).\nThus, under the facts, the trial court could properly rule that Silva did not violate \u00a7 66-5-41.\nPlaintiffs would have us hold, as a matter of law, that Silva violated \u00a7 66-5 \u2014 41. They assert:\nThe Motor Vehicle Code imposes a duty on the owner of a vehicle to ascertain whether a person is authorized under the act to drive. Merely asking an illegal alien, whose presence in the state is unlawful, whether or not he has a license cannot be held to comply with that duty.\nThus, plaintiffs ask us to hold that the owner is under a duty to investigate the qualifications of a person before the owner allows that person to drive his vehicle. See 69 A.L.R.2d, supra, at 996. This argument disregards the wording of the statute. Section 66-5-41 imposes no affirmative duty on the owner to ascertain the qualifications of the borrower to drive the car; rather, an owner violates the statute only if the owner knew or should have known that the borrower was not qualified to drive the car.\nThe judgment of the trial court is affirmed. Plaintiffs shall bear the appellate costs.\nIT IS SO ORDERED.\nHENDLEY and DONNELLY, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Timothy J. Dreher, Robert N. Singer, P.A., Albuquerque, for plaintiffs-appellants,", "Peter Everett IV, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "658 P.2d 446\nEQUITABLE GENERAL INSURANCE COMPANY, a foreign insurance corporation, and Robert Smith, Plaintiffs-Appellants, v. Jerry G. SILVA, Defendant-Appellee.\nNo. 5849.\nCourt of Appeals of New Mexico.\nJan. 4, 1983.\nCertiorari Denied Feb. 15, 1983.\nTimothy J. Dreher, Robert N. Singer, P.A., Albuquerque, for plaintiffs-appellants,\nPeter Everett IV, Albuquerque, for defendant-appellee." }, "file_name": "0371-01", "first_page_order": 403, "last_page_order": 406 }