(dissenting).
The plaintiff’s cause of action is predicated totally upon the existence of a defect in a tire. The majority state that there is not a “prima facie showing of no defect” and that “certainly a slight issue of fact remains.” They point to none and their statement is unsupported by the record. The facts they set out are too sparse for a fair appraisal and therefore must necessarily be supplemented. The Sears employee who installed the tires described the mounting procedure at length. He testified about feeling inside the tires, about putting them on a machine and about balancing them. He stated that they were checked inside and out and testified more than once that, if there was a break in the tire, “it would show”. The pickup was driven approximately 300 miles with no tire difficulty prior to the accident. At the time of the occurrence, the driver, Mrs. Goodman, lost control of the vehicle while attempting to light a cigarette. The pickup travelled some 380 feet off the highway, first, on one side and then the other. It moved back onto the highway twice and there was no tire failure until it came back onto the road the second time. Both Mr. and ’Mrs. Goodman testified at deposition that they had no knowledge or evidence of a defect in the tire, and that they had no information tending to support the allegations of a defective tire. The plaintiff produced and filed the affidavit of an expert who had examined the tire shortly after the accident. The affidavit contained the statement “* * * [ I] t is affiant’s opinion that the tire failed as the vehicle turned onto the highway from the left shoulder of the highway and that the failure proximately caused the accident.” Nowhere in the more than two pages of affidavit does the expert opine or even suggest, that the failure was caused by a defect in the tire.
The summary judgment Rule 56 [§ 21-1-1(56), N.M.S.A.1953, Repl.Vol. 40)] is clear and unambiguous. Paragraph (c) states that a judgment:
“ * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * ” [Emphasis added]
Paragraph (e) states:
“. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” [Emphasis added]
The reasoning behind the rule and the guiding principles are set forth in Surkin v. Charteris, 197 F.2d 77 (5th Cir. 1952), where the court stated:
“The general principles governing the motion for summary judgment are well established. Rule 56 * * * authorizes its use only where the pleadings, depositions, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Its purpose is not to cut litigants off from their right to trial by jury. On the contrary, it is to carefully test this, to separate the mere formal from the substantial, to determine zvhat if any issues of fact are present for a jury to try, and to enable the court to expeditiozisly dispose of cases by giving judgment on the law where the material facts are not in dispute. [Citations omitted] The sufficiency of the complaint does not control and, although the burden is on the moving party to demonstrate clearly that there is no genuine issue of fact, the opposing party must sufficiently disclose zvhat the evidence will he to show that there is a genuine issue of fact to be tried. * * * ” [Emphasis added]
The record before the trial court and now before us shows there is “no genuine issue as to any material fact”. The majority disregard both the substance of the record and the purpose of Rule 56.
In the face of the record on which the motion for summary judgment was based, it was incumbent upon the plaintiff against whom the summary judgment was directed to “set forth specific facts showing that there is a genuine issue for trial.” This she did not do. “If the opposite party has sustained his burden to establish the absence of a fact issue, but there is available additional proof to the contrary, it is the duty of the party moved against to so apprise the court. He cannot stand silent, but must show its presence.’’ [Emphasis added] Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). The response must set forth specific facts showing a genuine issue for trial. Green v. Manpower, Inc., of Albuquerque, 81 N.M. 788, 474 P.2d 80 (Ct.App.1970).
Tacit concession by the majority of the absence of a factual issue appears in the last paragraph of their opinion where they state that, at the trial, the plaintiff will have to come forward “with evidence and inferences therefrom sufficient to raise a factual issue * * * ”. To avoid the summary judgment she should already have done so. Convinced that the trial court did not err in granting the summary judgment, I dissent.