We disagree. See Pouliot v. Box, 56 N. M. 566 ( 246 P.2d 1050); Harper and James, The Law of Torts, Vol. 1, 661, 662, § 8.13, Vol. 2, 1419 et seq. § 26.15. The Georgia courts in adopting the family car doctrine, like those of many other states, applied principles of agency.
The family purpose doctrine is well established in New Mexico. Peters v. LeDoux, 83 N.M. 307, 491 P.2d 524 (1971); Burkhart v. Corn, 59 N.M. 343, 284 P.2d 226 (1955); Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050 (1952); Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331 (1951); Boes v. Howell, 24 N.M. 142, 173 P. 966 (1918). The applicable section of the family purpose doctrine to be considered is set out in SCRA 1986, 13-1210:
Thus, we agree with the trial court's conclusion that plaintiff should recover from defendant under the family purpose doctrine. The opinion of the Court of Appeals, that defendant's contention is inconsistent with New Mexico decisions, is first predicated upon the assertion that the decisions in Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050 (1952) and Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331 (1951), "* * held heads of families liable under the doctrine when they did not own the automobile in question, and when the vehicle was not maintained for the general use and convenience of the family. * * *"
Ownership of the car is not a controlling factor in determining the applicability of the family purpose doctrine. Stevens v. VanDeusen, 56 N.M. 128, 241 P.2d 331; Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050. The family purpose doctrine applies to Fidel Barreras regardless of whether he is the owner; the guest statute applies to him only because he is the owner.
Matthews v. Cheatham, supra; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398." For analagous cases from other jurisdictions see: Stevens v. Van Deusen, 241 P.2d 331 (N.M. 1951); Pooliet v. Box, 246 P.2d 1050 (N.M. 1952); Robinson v. Ebert, 39 P.2d 992 (Wash. 1935); Hanson v. Eilers, 2 P.2d 719 (Wash. 1931).
Defendants declare under their point two that the record affirmatively shows the existence of genuine, controverted issues of fact, precluding the entry of a summary judgment, and we agree with counsel. Cf. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775; McLain v. Haley, 53 N.M. 327, 207 P.2d 1013; Michelson v. House, 54 N.M. 197, 218 P.2d 861; and Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050. Applying the rules of law above stated, it is clear that the trial court should have denied plaintiffs' motion for a summary judgment so that the issue raised between the parties hereto as to defendants' liability, if any, under their contractual undertaking might be tried upon its merits.
We have repeatedly held that the "family purpose doctrine" is followed in this jurisdiction. Boes v. Howell, 24 N.M. 142, 173 P. 966, L.R.A. 1918F, 288; Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050; Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331. It is first asserted that the evidence fails to establish a prima facie case under the doctrine.
Our decisions have held heads of families liable under the doctrine when they did not own the automobile in question, and when the vehicle was not maintained for the general use and convenience of the family. Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050 (1952); Stevens v. Van Deusen, 56 N.M. 128, 241 P.2d 331 (1951). Also, as the doctrine is applied in New Mexico when a child uses an automobile owned by his parents there is a presumption of agency arising from such ownership and use.
We are called upon to determine whether the Guest Act bars an action under the family purpose doctrine. Although the motorcycle was owned by Charles, the family purpose doctrine was invoked by plaintiff under Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050 (1952). In our opinion Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968), supplies the answer to the issue presented under this point.
At least two decisions regard a gift of the car by the parent as being equivalent to furnishing the car. See Pouliot v. Box, 56 N.M. 566, 246 P.2d 1050 (1952), and Robinson v. Ebert, 180 Wn. 387, 39 P.2d 992 (1935). Insofar as this intra-familial type of loan is concerned, at such times as it might be repaid, the element of "furnishing" may cease, but this is not before us now, as it is undisputed there was a substantial "loan" still outstanding at the time of this accident.