Opinion
Rehearing Denied Nov. 4, 1970.
Maley & Schiff, John T. Maley, Denver, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Laird Campbell, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
The plaintiff, Tim Suazo, brought this action to recover damages for personal injuries alleged to have been negligently inflicted in an automobile collision in Denver, Colorado. Plaintiff's automobile collided with one driven by Merle Schwaninger, who died from causes unrelated to the accident before this action was commenced. Plaintiff sought to invoke the family car doctrine to impose liability on Schwaninger's widow, now Dorothy Black. In his complaint, plaintiff alleged that the motor vehicle driven by Merle Schwaninger was an automobile jointly owned and kept by defendant and her husband as a 'family car' and that it was being used at the time of the accident for 'family purposes'. Plaintiff did not allege that defendant was the head of the household.
Defendant answered and also filed a motion for summary judgment supported by her affidavit which stated that at the time of the collision her husband was on a mission of his own; that he was not agent of defendant; and that he was not performing any service or completing any mission requested of him by defendant. Plaintiff conceded the facts stated in this affidavit. After this admission by plaintiff, no genuine issue as to any material fact remained to be tried, and the court held that defendant was entitled to a judgment as a matter of law.
The single question presented in this appeal is whether a wife, who is co-owner of an automobile, is liable under the family car doctrine for injuries negligently inflicted by her husband, the co-owner, while driving the automobile.
In Lee v. Degler, Colo., 454 P.2d 937, decided while this case was pending on writ of error, our Supreme Court held that the family car doctrine was not applicable in such situations unless the defendant is also the head of the household. The court said that where the defendant is not the head of the household, bare legal title alone is insufficient to justify the application of the family car doctrine. Lee v. Degler cannot be distinguished and on the authority of that case, we hold that the trial court did not err in entering a summary judgment against the plaintiff.
Judgment is affirmed.
ENOCH and PIERCE, JJ., concur.