(dissenting).
I respectfully dissent and would affirm the decision of the trial court.
The rationale behind the family purpose doctrine is that an automobile owner, in furnishing or maintaining a vehicle for the general use and convenience of his family, is to be held liable for the negligent operation of the vehicle by a member of his family. See Boes v. Howell, 24 N.M. 142, 173 P. 966 (1918). See also Pavlos v. Albuquerque National Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971). The family purpose doctrine is based on principles of agency law and master-servant law. State Farm Mutual Automobile Ins. Co. v. Duran, 93 N.M. 489, 601 P.2d 722 (Ct.App.1979). See Boes v. Howell (citing with approval Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020 (1913)); 7A Am.Jur.2d 193, Automobiles and Highway Traffic, § 658 at 891 (1980); Annotation, Modern Status of Family Purpose Doctrine with Respect to Motor Vehicles, 8 A.L.R.3d 1191, 1196 (1966).
I agree with the majority that, to impute liability for negligence to a non-driver owner of a motor vehicle, SCRA 1986, 13-1210 requires, in part, that the following elements must be present: (1) the motor vehicle was operated by a member of the family; (2) the motor vehicle was furnished by its owner for general family use and convenience; (3) the driver had authority to drive the motor vehicle; and (4) the driver was using the motor vehicle for the pleasure or convenience of the family, or a member of it.
I also agree that unless all the elements required under the doctrine are present, liability cannot be imposed on the non-negligent owner. See Annotation, supra, at 1196, 1206-07. Thus, owner liability requires a finding that the driver had the owner’s authority to drive the vehicle and was using it for the pleasure or convenience of the family or a family member. See 13-1210; Peters v. LeDoux, 83 N.M. 307, 491 P.2d 524 (1971). It is implicit under this doctrine of imputed liability, which is based on agency principles, that the driver is not the same person as the owner who furnishes the vehicle, and that authorization to drive the vehicle was given by the non-driver owner. See id.; 13-1210. See generally W. Prosser, The Law of Torts § 73 at 483-86 (1971) (discussing imputed negligence under the family purpose doctrine).
Plaintiffs contend there are genuine issues of fact regarding: the vehicle ownership; whether Vincent Madrid furnished the vehicle to his son for general family use and convenience; and, his son’s compliance with that purpose. Plaintiffs cite the following evidence: Steven needed his father’s cosignature on the loan to purchase the vehicle; the father is named as a registered owner on the application; during the three months the vehicle was in Steven’s possession, his father and his sister each drove it on one occasion; Steven lived with his family, kept the vehicle at the family home, drove it to and from his employment at his father’s business and may have driven the vehicle on family errands; and, on the date of the accident, Steven was on a pleasure drive with his sister and another as passengers.
As further support for the application of the family purpose doctrine, plaintiffs state that: since Steven did not need his father’s permission to drive the automobile on the date of the accident, this is evidence of the father’s authorization to use the vehicle; since Steven earned the wages he used for car payments from his employment with his father, this is further evidence that his father furnished the vehicle; since Steven lived at the family home, since all five family members had automobiles, and since Steven’s sister had ridden in the vehicle in question several times prior to the accident, this is evidence that the vehicle had been furnished for the pleasure or convenience of either the family or a family member. The parties have agreed that the age of the driver is not an issue in determining whether the family purpose doctrine applies. See Burkhart v. Corn, 59 N.M. 343, 284 P.2d 226 (1955).
The parties agree to some extent on the issue of ownership. Since Vincent Madrid is named on the certificate of title as a co-owner, this is prima facie evidence of his ownership. See NMSA 1978, § 66-3-12 (Repl.Pamp.1984); Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968), overruled on different grounds, McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975). Thus, unless the prima facie ownership is rebutted by other evidence, the fact of the father’s ownership would be either presumed or established. See Western States Collection Co. v. Marable, 78 N.M. 731, 437 P.2d 1000 (1968). See also Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).
Vincent Madrid offered the following to rebut the prima facie evidence of his ownership of the vehicle. His son Steven did not consult him regarding the vehicle purchase, but did get his help in obtaining financing. Steven’s testimony is that he exercised complete and sole control over the use of the vehicle and did not intend that his father have any beneficial or legal ownership interest in it. The father’s testimony corroborates this.
Vincent Madrid is named as a co-owner on the application for vehicle title and registration with the motor vehicle division. However, Steven is named as the other co-owner, and his signature appears on the application while his father’s does not. Neither defendant requested the co-owner entry, and the father had no knowledge of it until he was served with the complaint.
I have recited the rebuttal evidence offered to show that the sole owner of the vehicle was Steven. However, I need not base my dissent on this issue since, as plaintiffs acknowledge, ownership is not the essential factor in finding liability under the family purpose doctrine. Rather, the essential factors are whether the vehicle was furnished by its owner for general family use and convenience and whether authority to drive was granted by the non-driver owner. See Peters v. LeDoux; State Farm Mutual Automobile Ins. Co. v. Duran. See also Pavlos v. Albuquerque National Bank.
Regarding the element of the owner furnishing the vehicle for general family use and convenience, the record indicates that Steven paid for and received delivery of the vehicle, had the right to control its use, maintained it, and was its sole driver (except for one short drive by his father and another by his sister). Both defendants intended that the car belong to Steven. Vincent Madrid’s only specific connection to the vehicle was his signing of the loan application, causing his name to appear on the title. In their brief-in-chief, plaintiffs state that “Steven did not have to have his [father’s] permission to purchase the car, and [his father] had set no rules regarding Steven’s use of the car after it was purchased * * *This statement, taken in conjunction with the other evidence relied upon by plaintiffs, is insufficient to cast a reasonable doubt on the question of whether defendant Vincent Madrid did furnish the vehicle for the use and convenience of his family. This conclusion is in accord with Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963), and Mylnar v. Hall, 55 Wash.2d 739, 350 P.2d 440 (1960), which are similar cases where the father’s only participation was in securing financing for the vehicle purchase. See also Durrett v. Farrar, 130 Ga.App. 298, 203 S.E.2d 265 (1973), overruled on different grounds, Smith v. Telecable of Columbus, Inc., 140 Ga.App. 755, 232 S.E.2d 100 (1976); Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979); Porter v. Hardee, 241 S.C. 474, 129 S.E.2d 131 (1963).
Plaintiffs claim Vincent Madrid conceded that his son, Steven, had the authority required under the family purpose doctrine to drive a motor vehicle. The record does not indicate such a concession. Vincent Madrid states that he was not the true owner and, thus, did not give his authority as owner; rather, he contends that Steven’s authority to drive the vehicle derived from the fact that Steven himself was the adult owner of the vehicle.
Plaintiffs also attempt to show Steven’s authorization to use the car through his father’s testimony that Steven did not need his father’s permission to purchase the vehicle and that the father set no rules regarding Steven’s use of the vehicle. I find that this evidence, relied upon by plaintiffs, fails to establish a reasonable doubt, under the family purpose doctrine, that Vincent Madrid gave his son authority to drive the vehicle, an element required by the doctrine. See Peters v. LeDoux; 13-1210.
Because plaintiffs have not met their burden in establishing the existence of the elements required under the family purpose doctrine to impose liability on Vincent Madrid, the non-driver registered owner of the motor vehicle, I would hold that the family purpose doctrine is inapplicable to him. Accordingly, I would affirm the trial court’s grant of summary judgment in Vincent Madrid’s favor.