Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Ass'n

508 P.2d 588, 84 N.M. 779
CourtNew Mexico Supreme Court
DecidedApril 6, 1973
Docket9539
StatusPublished
Cited by16 cases

This text of 508 P.2d 588 (Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Ass'n) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Ass'n, 508 P.2d 588, 84 N.M. 779 (N.M. 1973).

Opinion

OPINION

OMAN, Justice.

This is a suit by plaintiff for a declaration of the rights of the parties under a general liability policy of insurance issued by plaintiff to defendant. Plaintiff appeals from a summary judgment entered in favor of defendant. We affirm.

Defendant operates a horse racetrack known as La Mesa Park. During the early morning hours of July 14, 196S, a jockey by the name of Louis Sisneros was exercising a race horse named Vic & Vinegar. Fie was exercising this horse pursuant to an arrangement with the horse’s trainer whereby he [Sisneros] would exercise horses by galloping them for a fee of $2.00 if they were two year olds, and $1.00 if they were over two years old. This was a .standard fee paid to either a jockey or an ■exercise boy for this service.

Vic & Vinegar was not going to race on July 14, 1968, and she had never been ridden by Sisneros in a race. Sisneros was scheduled to ride other horses in races later in the day of July 14, 1968. However, he did not do so because he was thrown that morning by Vic & Vinegar when attacked by dogs which in some way gained entrance to the track. Sisneros suffered injuries which allegedly caused his death on July 4, 1970.

Suit was filed after his death by his representative against defendant for the injuries he sustained and for his claimed wrongful death. Defendant demanded that plaintiff, as defendant’s insurer, defend the tort action on behalf of defendant, but plaintiff declined and brought the present declaratory judgment suit.

Defendant was granted a summary judgment by which the trial court held plaintiff obliged under the policy to defend the tort action on behalf of defendant and to pay and discharge any judgment recovered against defendant therein to the extent of the limits of the coverage under the policy.

The policy contains an athletic participants exclusion which provides in pertinent part:

“It is agreed that with respect to operations described above or designated in the policy as subject to this endorsement, the insurance does not apply to bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the named insured.” [Emphasis added]

Unquestionably, the principal purpose for exercising Vic & Vinegar by galloping her was to keep her in condition for racing. The question here, however, is whether Sisneros by riding her for this purpose was himself practicing as a jockey for the purpose of riding in horse races at La Mesa Park.

Plaintiff relies upon the testimony of the trainer of Vic & Vinegar as the basis for its claim that a genuine issue of fact was presented as to whether Sisneros by exercising her was practicing for a contest or exhibition of an athletic nature, to wit, to ride as a jockey in races at La Mesa Park. This witness testified as to the following four reasons why a jockey would exercise and gallop race horses on defendant’s track: (1) so that the jockey could maintain his physical fitness and riding skills; (2) so that the jockey could become familiar with the characteristics of the horse that he was exercising or galloping; (3) so that the trainer of a horse would give the jockey more consideration for riding a mount in a race if the jockey helped with exercising; (4) for the compensation paid the jockey by the trainer for exercising and galloping horses.

Although not all of this witness’s testimony as to why a jockey might exercise horses, his testimony pertinent to the question as to why Sisneros was exercising Vic & Vinegar on July 14, 1968 was as follows :

“Q. When you mention a jockey riding a horse for his own benefit are you saying that he is staying in physical condition ?
“A. A little bit of it, yes, it helps to keep them fit, you bet.
“Q. Is that all you meant, that it keeps them in physical condition for riding?
“A. A jock?
“Q. Yes.
“A. Yes.
“Q. Did you mean anything other than that ?
“A. No.
“Q. A jockey already knows how to ride, does he not ?
“A. Yes.”
«* * * *
“Q. All right. Now in this particular case, since Louis Sisneros was not riding the horse — he was not riding him [sic] on this morning for the purpose of learning about that horse for the afternoon, was he?
“A. No, sir.”
" + * * *
“Q. Now since Louis Sisneros was not scheduled to be a jockey for Vic and Vinegar he was not exercising her on that day in order to learn her characteristics, was he ?
“A. No, he loped her before.
“Q. What’s that?
“A. He rode her before in the mornings.
“Q. He’d ridden her before in the mornings ?
“A. Yes.
“Q. But on this particular morning and on the other mornings when he was riding her, he was not at that time getting used to that horse so that he would be the jockey, was he?
“A. No.”
“ * * * *
“Q. Was she going to run on July 14th?
“A. No.”
ei ❖ * # %
“Q. Do you know whether Louis Sisneros was scheduled to ride as a jockey in a race on the afternoon of-July 14th?
“A. Yes. Let’s see, wait a moment, the day he got hurt, I guess he got hurt —this was on a Sunday, if July 14th is on a Sunday, he was supposed to ride that afternoon, yes, because some of his horses won, I don’t know which horses but I remember him talking about it later.”
“ j{: * * *
“Q. All right. We have established by looking at a calendar that July 14, 1968, was a Sunday so it is now your recollection that Louis Sisneros was scheduled to ride as a jockey in races that afternoon, is that right ?
“A. Yes.”
t( * * * *
“Q. Vic and Vinegar was not scheduled to race on this particular day ?
“A. Right.”
“ * * * *

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Cite This Page — Counsel Stack

Bluebook (online)
508 P.2d 588, 84 N.M. 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-states-mutual-casualty-co-v-northeastern-new-mexico-fair-assn-nm-1973.