Payne v. Tuozzoli

453 P.2d 384, 80 N.M. 214
CourtNew Mexico Court of Appeals
DecidedMarch 28, 1969
Docket272
StatusPublished
Cited by27 cases

This text of 453 P.2d 384 (Payne v. Tuozzoli) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Payne v. Tuozzoli, 453 P.2d 384, 80 N.M. 214 (N.M. Ct. App. 1969).

Opinion

OPINION

OMAN, Judge.

Defendant appeals from a judgment for damages. These damages resulted when an automobile owned by defendant collided with the rear of plaintiff’s automobile while lawfully parked 'on a public street in the City of Alamogordo, New Mexico. The collision occurred sometime between 3:03 a. m. and 3 :33 a. m. There is no question about the negligence of the driver of defendant’s vehicle. The sole question presented relates to the identity of this driver.

The trial court’s findings and conclusions concerning the driver of defendant’s automobile are:

“FINDINGS OF FACT
«* * *
“8. That the Defendant, Michael A. Tuozzoli, was the operator of his 1953 Chevrolet automobile at the time of the accident, * * *
“9. The operator of the Tuozzoli vehicle left the scene of the accident without identifying himself or herself, and has not thereafter been identified.
“10. That the Defendant, Michael A. Tuozzoli, after the said accident left the scene of the accident without identifying himself.
“CONCLUSIONS OF LAW
“ * *
“2. There is a presumption that the operator of Defendant’s car was the Defendant or the agent and servant of the Defendant-owner, and that said operator was acting within the scope of his employment by the Defendant at the time of the accident.
“3. That Defendant, Michael A. Tuozzoli, negligently and carelessly operated his vehicle on or about January 14, 1968, and while so operating said vehicle struck the Plaintiff’s vehicle.”

Defendant urges that Findings 8 and 10 are not supported by substantial evidence, and that it is apparent the trial court relied on the presumption stated in Conclusion No. 2 as support for these findings. We agree.

Plaintiff argues that there is substantial evidence to support the findings and relies upon the following for this support:

(1) The ownership of the vehicle by defendant.

As above stated, there is no question about the ownership. The presumption referred to in the trial court’s Conclusion No. 2 will hereinafter be discussed.

(2) Negligence of the operator of defendant’s vehicle.

As above stated, there is no question about such negligence. The fact that the driver was negligent has no probative force upon the question of the identity of the driver. At least it does not under the facts of this case.

(3) The fact that the driver left the scene of the accident.

There is no doubt the driver of defendant’s vehicle left the accident scene before the police arrived, and has never been identified. However, we fail to comprehend how this tends to establish defendant as the driver. If the disappearance of the driver has any probative value on the question of the driver’s identity, it would more nearly give support to defendant’s contention that his vehicle was stolen and was being driven by someone unknown to him.

(4) A police officer, who patrolled the street upon which the accident happened, stated it took about thirty minutes for him to make a complete round of the area he patrolled. He was told of the accident at about 3 :33 a. m. by an unknown motorist. He testified, and the court so found, that the accident occurred between 3:03 a. m. and 3 :33 a. m.

(5) Another police officer testified defendant came to the police station shortly after noon on the day of the accident “to report a stolen car.” In their conversation defendant told this officer he did not get home until about 3:30 a. m., and that he had been drinking. He also testified the Alamogordo Department of Public Safety was not looking for a thief who may have stolen defendant’s vehicle.

This officer also testified that “the same morning” the car was reported “to us” as being stolen, and that, when defendant arrived at the police station shortly after noon, this officer advised defendant that because he was the registered owner of the vehicle he was responsible for the accident, “unless he could prove otherwise.”

(6) A third officer testified there were no keys in defendant’s vehicle at the scene of the accident, and no evidence that the vehicle had been “hot-wired.” He also testified the records of the Department of Public Safety of the City of Alamogordo ■contained no report of the theft of a 1953 ■Chevrolet from January 14, 1968, to January 16 or 17, 1968.

(7)Defendant testified he was driving his vehicle on the morning of the accident, .and that he had the keys to his vehicle .after the accident.

He also testified he had been to a going-away party for a friend. He had a few drinks at the party, but was not intoxicated. He left the party at about 2:45 a. m. and •drove directly to the home of a friend where he was going to spend the night; it took him no more than five minutes to •drive from the place where the party was being held to the home of the friend; he •did not drive on the street on which the collision occurred; he parked his car in front of the house next door, removed the ignition key, and entered the home of the ■friend; he visited briefly with his friend, and then went to bed at about 3:00 a. m.; he learned his vehicle was missing at about 10:15 a. m.; he, the friend with whom he was staying, and another friend, who was also staying at the same house, spent about an hour looking for the car; he then tele•phoned the police to report his car was ■missing, and was told the police had the car and that he should come to the police ■station; upon his arrival at the police station he was told his car had been in an accident; and, he was informed by the police that he was presumed to have been the driver at the time of the accident, since he was the owner.

None of this testimony is disputed, ex•cept as shown by other evidence to which ■reference is herein made.

He also offered testimony by an expert that the ignition key could be removed from a 1953 Chevrolet, and the vehicle then started without difficulty and without the -use of the key. Only when the key is turned to the “Locked” position and then removed is it necessary to use the key in -starting the vehicle. This testimony was ^undisputed.

(8) The young lady, at whose home the going-away party was held, testified defendant left the party at about 3:00 a. m.

(9) The friend, with whom plaintiff was staying, testified he did not see plaintiff’s vehicle when plaintiff arrived at his home.

This witness also testified defendant arrived at about 2:45 a.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Montoya v. Medina
2009 NMCA 029 (New Mexico Court of Appeals, 2009)
Salazar v. D.W.B.H., Inc.
2008 NMSC 054 (New Mexico Supreme Court, 2008)
Jaramillo v. Fisher Controls Co., Inc.
698 P.2d 887 (New Mexico Court of Appeals, 1985)
Perfetti v. McGhan Medical
662 P.2d 646 (New Mexico Court of Appeals, 1983)
Martinez v. Anderson
633 P.2d 727 (New Mexico Court of Appeals, 1981)
Matter of Estate of Martinez
633 P.2d 727 (New Mexico Court of Appeals, 1981)
Trujillo v. Chavez
603 P.2d 736 (New Mexico Court of Appeals, 1979)
State Farm Mutual Automobile Insurance v. Duran
601 P.2d 722 (New Mexico Court of Appeals, 1979)
State v. Santillanes
580 P.2d 489 (New Mexico Court of Appeals, 1978)
Santa Fe Pacific Railroad v. Property Tax Department
553 P.2d 726 (New Mexico Court of Appeals, 1976)
McVean & Barlow, Inc. v. New Mexico Bureau of Revenue
543 P.2d 489 (New Mexico Court of Appeals, 1975)
Provencio v. New Jersey Zinc Co.
525 P.2d 898 (New Mexico Court of Appeals, 1974)
White v. Wayne A. Lowdermilk, Inc.
509 P.2d 575 (New Mexico Court of Appeals, 1973)
First Western Savings & Loan Ass'n v. Home Savings & Loan Ass'n
499 P.2d 694 (New Mexico Court of Appeals, 1972)
State v. Stevens
493 P.2d 960 (New Mexico Court of Appeals, 1972)
Pavlos Ex Rel. Pavlos v. Albuquerque National Bank
487 P.2d 187 (New Mexico Court of Appeals, 1971)
State v. Grove
486 P.2d 615 (New Mexico Court of Appeals, 1971)
State ex rel. State Labor Commissioner v. Goodwill Industries
478 P.2d 543 (New Mexico Supreme Court, 1970)
Brannon v. Well Units, Inc.
479 P.2d 533 (New Mexico Court of Appeals, 1970)
State v. Malouff
471 P.2d 189 (New Mexico Court of Appeals, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
453 P.2d 384, 80 N.M. 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-tuozzoli-nmctapp-1969.