(dissenting on motion for rehearing).
Justice SHILLINGLAW who joined in my dissent in this case has left the court and has been succeeded by Justice CARMODY who concurred in the opinion of the CHIEF JUSTICE. Justice CARMODY now believes the opinion is erroneous and that a rehearing should be granted and the judgment reversed. The CHIEF JUSTICE and Justice COMPTON are of the opinion the motion for rehearing should be denied.
Under the rule of Flaska v. State, 1946, 51 N.M. 13., 33, 177 P.2d 174, 186, a District Judge may not be called in to break the tie, with the result that, although three of the participants in the opinion disagree with the result, Justice SHILLINGLAW having joined in my dissent, and, as above stated, Justice CARMODY having changed his mind, the original opinion stands.
The finding of fact on which the case turned below and was affirmed here reads:
“At the time of his injury the plaintiff, Buck Jones Gordon had some prior experience in horsemanship, knew the dangers attendant thereon, bui mas at an age of immaturity, and lack of regard for caution.” (Emphasis mine.)
There are no other supporting findings on the immaturity feature, and there is not one word of testimony from the plaintiff, or his father, who often worked horses with him, or any other witness to support the immaturity finding as it relates to horses or anything else. The answers of the plaintiff were responsive and to the point.
That part of the finding that the plaintiff had some prior experience in horsemanship is certainly supported by the record which, in turn, would have disproved a finding of fact the plaintiff was' immature. The record shows he had ridden horses since he was big enough to get on them; started breaking Shetland broncos at 12 years of age, then graduated into breaking horses for some four years; and had considerable experience riding bucking horses in rodeos. But as the crucial finding and the judgment is based on age alone, perhaps what has just been written is surplusage.
I challenge the CHIEF JUSTICE and Justice COMPTON to produce one single case where, except for infants of tender age, age alone makes a person immature. It is stated in the opinion,
“However, it should be stated that this court is not holding as a matter of law that a person of 19 years is immature.”
but that is what was held below and what was affirmed here.
As a vote of three to grant the motion for a rehearing cannot be obtained it will stand denied by operation of law, but with Justice SHILLINGLAW joining in my dissent and Justice CARMODY having changed his mind and joining in this dissent the opinion heretofore filed will not be authority for another like decision. .
For the reasons stated herein as well as in my prior dissent, I dissent and say the motion should be granted, and the judgment reversed.
CARMODY, J., concurs.