Baldonado v. Navajo Freight Lines, Inc.

OPINION SUTIN, Judge. This 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 “guest statute” [§ 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 [§ 21-l-l(14)(a), 18(a), N.M. S.A. 1953 (Repl.Vol. 4)]. We affirm. On 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. Baldonado 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. The English motion to dismiss was granted. A. Navajo’s claim for contribution was barred by the New Mexico "guest statute.” Section 64-24-1, supra, reads: No 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 Under this statute, Baldonado had no claim for damages against English. English was immune from such suit. Therefore, the Joint Tortfeasors Act [§ 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). Navajo and Whedon claim that this concept was abolished because the “guest statute” was declared unconstitutional on September 23, 1975. McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975). The Court said: After 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. [Emphasis added] [88 N.M. at 314, 540 P.2d at 244], “Purely prospective” application means that the overruling decision shall not apply to the parties in the case at bar. A “modified prospective” 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. We must determine if the case at bar is a “pending action” or a case which “may arise in the future.” It is neither. (1) This is not a “pending action." “A civil action is commenced by filing a complaint with the court.” Section 21-1-1(3), N.M.S.A. 1953 (Repl.Vol. 4). “An action is to be regarded as pending from the time of its commencement until its final termination.” 1 C.J.S. Actions § 142 (1936). Navajo’s 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). (2) This is not a case that “may arise in the future.” We are confronted with the meaning of the word “case,” and the words “arise in the future.” “The word ‘case’ in a legal sense, means ‘suit.’ ” State v. Reed, 62 N.M. 147, 151, 306 P.2d 640, 642 (1957). The word “suit” is more general than the word “action” because it applies to equitable, criminal and legal proceedings. In Re Sloan, 5 N.M. 590, 25 P. 930 (1891). Under Rule 3 of the Rules of Civil Procedure, supra, the words “civil action” are broad and used interchangeably with the words “civil case.” See Echols v. N. C. Ribble Company, 85 N.M. 240, 511 P.2d 566 (Ct.App.1973). A “cause of action” 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 § 8(c) (1936); 1 Am.Jur.2d Actions § 1 (1962). A cause of action accrues or arises when “there is an existing right to sue forthwith”. Reich v. Van Dyke, 107 F.2d 682, 683 (3rd Cir. 1939). “Thus a cause of action arises when it springs up, originates, comes into being, becomes operative, presents itself.” Bergin v. Temple, 111 Mont. 539, 111 P.2d 286, 289, 133 A.L.R. 1115 (1941). What is meant by a case “which may arise in the future?” It does not mean a case “which may be filed in the future,” or “which may be commenced in the future.” 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 “guest statute” unconstitutional without any provision for modified prospectivity. Vaughn concluded that Henry “be 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 ..” [Emphasis added] [521 P.2d at 271]. If the emphasized language had appeared in McGeehan, English would not have the benefit of the “guest statute.” “A 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 . ..” [Emphasis added]. Washington Sec. Co. v. State, 9 Wash.2d 197, 114 P.2d 965, 967, 135 A.L.R. 1330 (1941). In the instant case, the accident occurred on October 30, 1974. Navajo’s causes of action arose at that time. Navajo’s “case” 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 “guest statute.” The trial court properly barred the first count of Navajo’s third-party complaint for contribution. B. Navajo’s and Whedon’s claims for property damage and personal injury were not proper under Rules 14(a) and 18(a). Counts II and III of the third-party complaint were, respectively, independent claims of property damage to Navajo’s truck and personal injuries to Whedon arising out of the same accident. English 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. Rule 14(a) provides in part: 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’s claim against him. [Emphasis added]. This emphasized language does not include an independent action by Navajo and Whedon against a third party. Rule 18(a) provides in part: [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. “Rules 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’s claim against the original defendant.” Hancock v. Berger, 77 N.M. 321, 325, 422 P.2d 359, 362 (1967). Navajo’s and Whedon’s third-party claims against English are not based on plaintiff’s claim against Navajo and Whedon, and counts II and III are improperly joined. In Navajo’s reply brief, it states: NAVAJO 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. We agree. Affirmed. IT IS SO ORDERED. HERNANDEZ, J., concurs. LOPEZ, J., dissents.