Opinion
Rehearing Denied March 19, 1970.
Certiorari Denied May 14, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 901
Victor E. DeMouth, Golden, for plaintiffs in error.
Landrum & Pierce, Robert G. Pierce, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The plaintiffs in error, Daniel and Lois Ross, were the defendants in the trial court and will be referred to herein as defendants, or by name. The defendant in error, Nancy Douglas, was the plaintiff in the trial court and is referred to herein by name, or as plaintiff.
Plaintiff sued defendants as a result of injuries sustained in a one car accident. The accident occurred on the 28th of March, 1965 on West Colfax in Jefferson County at approximately 2:05 a.m. Plaintiff's claim was against Daniel Ross as driver of the car and against Lois Ross, his mother, under the family car doctrine. The defendants plead the affirmative defenses of contributory negligence, assumption of risk and the guest statute. Trial was held to a jury which returned a verdict in favor of plaintiff in the amount of $7,000 against both defendants.
The defendants moved for a directed verdict at the end of plaintiff's case and again at the conclusion of defendants' case. The defendants allege, among other things, as error, the trial court's refusal to grant these motions.
The defendants claim that plaintiff failed to prove that the accident was caused by the negligence or even the intoxication of defendant, Daniel Ross. Further, that the evidence showed that plaintiff assumed the risk as a matter of law. It is also alleged that defendant, Lois Ross, in any event, could not be held liable because she was not the head of the household.
Upon review of the record, we find there was no dispute as to the intoxication of defendant, Daniel Ross, that the physical facts at the scene of the accident raised a question as to defendant's speed and lack of control of the automobile, and that there was a conflict as to the awareness by plaintiff of defendant's physical condition. It is our opinion that in light of these facts and other conflicting evidence presented that there was sufficient evidence to submit the case to the jury and to support the jury's conclusion that the intoxication of the defendant, Daniel Ross, was the cause of the accident. Where there is doubt as to the factual situation of the case, all questions including negligence, contributory negligence, assumption of risk and proximate cause are questions of fact for the jury. Schell v. Kullhem, 127 Colo. 555, 259 P.2d 861.
Defendants rely on the following language in United Brotherhood of Carpenters and Joiners of America, Local Union No. 55 v. Salter, 114 Colo. 513, 167 P.2d 954, for the assertion that assumption of risk must be decided as a matter of law in this case:
'Where one becomes a guest and imprudently enters a car with knowledge that the driver is so under influence of intoxicants as to tend to prevent him from exercising the care and caution which a sober and prudent man would employ in the operation and control of the car, the guest is barred from recovery by reason of his contributory negligence, and as having assumed the risk involved. Where the evidence of such fact is without conflict, plaintiff is barred from recovery as a matter of law.' (Emphasis added)
Examination of the record shows there was conflict as to this question and was thus properly submitted to the jury for determination. Schell v. Kullhem, Supra.
Defendants' third assignment of error asserts that the trial court erred in instructing the jury as to the liability of defendant, Lois Ross, under the family car doctrine. We hold that although the title of the automobile was in the name of Lois Ross, this fact alone is not sufficient to justify application of the family car doctrine. As a matter of law, defendant must also be the head of the household for the doctrine to apply. Lee v. Degler, Colo., 454 P.2d 937 (1969). Lois Ross was not the head of the household in this case. Lois Ross was married, her husband, father of Daniel, was employed, lived at home and supported the family. The father of Daniel was the head of the household, not Lois Ross. Thus, the trial court was in error in not dismissing the complaint as to Lois Ross.
Defendants assigned a total of ten errors in this case, the first three of which contained substantial merit and have been discussed above. The remaining seven assignments deal primarily with the trial court's refusal to grant particular instructions submitted by the defendants. We have examined the instructions given by the trial court, paying particular attention to those disputed by the defendants and find no error.
The judgment as to defendant Daniel Ross is affirmed. The judgment as to defendant Lois Ross is reversed with direction to dismiss the complaint and judgment against defendant, Lois Ross.
DWYER and DUFFORD, JJ., concur.