Ferguson v. Hurford

• Decision Date: 21 November 1955
• Docket Number: No. 17639,17639
• Parties: Ruth Mae FERGUSON, individually and as Administratrix of the Estate of Albert D. Ferguson, deceased, Plaintiff in Error, v. Barney HURFORD, Pearl Hurford and Tilford Hurford, by his father and next friend, Barney Hurford, Defendants in Error.
• Court: Colorado Supreme Court

Page 229

290 P.2d 229

132 Colo. 507

Ruth Mae FERGUSON, individually and as Administratrix of the Estate of Albert D. Ferguson, deceased, Plaintiff in Error, v. Barney HURFORD, Pearl Hurford and Tilford Hurford, by his father and next friend, Barney Hurford, Defendants in Error.

No. 17639.

Supreme Court of Colorado, En Banc.

Nov. 21, 1955.

Coit & Graham, Grand Junction, for plaintiff in error.

Strang, Loesch & Kreidler, Montrose, Samuel C. Polk, Nucla, for defendants in error.

ALTER, Chief Justice.

Barney Hurford and Pearl Hurford, as the parents of Albert Hurford, deceased, join with Tilford Hurford, by his father and next friend, Barney Hurford, as plaintiffs in an action in the district court against Ruth Mae Ferguson, individually and as administratrix of the estate of Albert D. Ferguson, deceased, seeking damages claimed due them by reason of the death of their minor son, and damages for personal injuries to Tilford, both claims being based upon the death and injuries resulting from an automobile accident. The action was tried to a jury solely on plaintiffs' claims against Ruth Mae Ferguson, individually, resulting in a verdict in favor of Albert's parents in the sum of $6,000 and a verdict in favor of Tilford, the minor, in the sum of $1,000. The court denied defendant's motion for judgment notwithstanding the verdicts and for a new trial and entered judgments on the verdicts. Defendant is here by writ of error seeking a reversal of the judgments.

At the pre-trial conference, held on November 24, 1954, the question of defendant's liability for the damages resulting from the accident was considered, at which time the court made and entered a pre-trial order, the part pertinent and material here is as follows:

'The next question concerns 'the family car doctrine'. As stated in the pre-trial conference defendant expects to show that her son, the driver of the car at the time of the collision, paid all moneys that were paid down at the time the car was purchased; that title was only taken in her name for convenience in obtaining insurance, etc., and that she was not in equity the owner of the car and had no right to control its use, the car actually belonging to the son.

'However, it is the court's understanding that the defendant mortgaged the car, signing the mortgage; that she obtained insurance on the basis she was the owner of the car; and that she signed all necessary documents to obtain registration of the car. The question is whether under these facts the family car doctrine can be applied to the present situation.

'The Court must, of course, accept the family car doctrine as announced by the Colorado Supreme Court. Our Supreme Court accepts the proposition that the doctrine depends upon control and use of the car. That is the party sought to be held liable through ownership had the right to control the use of the car and permitted one or more members of the family to use the same as a family car. It is true this doctrine is based upon the general theory of principal and agent.

'The Colorado Uniform Motor Vehicle Safety Responsibility Law is found in Chapter 16, C.S.A. '35, starting with Section 39, and constitutes the law in connection with ownership, registration, and operation of automobiles for this State, and, of course, announced the public policy which the court must follow.

'The law contains, in part, the following provisions.

"Section 39(d), Owner: A person who holds the legal title to a vehicle * * * shall be deemed the owner for the purpose of this article.' The remainder of this subdivision of our law concerning motor vehicles shows the purpose of declaring that a person who owns the legal title to vehicle shall be deemed the owner. Registration can only be issued to the owner and in the event certain things occur, then the registration is to be cancelled and registration plates suspended, unless the owner makes a showing of beneficial responsibility, gives bond, or procures necessary insurance. There can be no question but that the legislature declared, under the public policy of this state and for the purpose of protecting third parties who might be injured by the motor vehicle, that the party in whose name the legal title stands should be deemed to the the owner and have the responsibility of such ownership.

'Following along the same line under our Colorado law, every owner is required to register his vehicle; the application shall state the name and address of the owner, and the owner is required to sign the registration card which should be in the possession of the operator and carried in the vehicle at all times; license plates are issued to the owner.

'Likewise under our Uniform Motor Vehicle Law, Sec. 76 of said Chapter 16, subdivision (q), an owner is defined as being 'a person who holds the legal title of a vehicle.'

'Under our several statutes certainly the defendant must be accepted as the owner of the automobile in question. To permit her to deny such ownership and to introduce evidence to prove her affidavit of ownership requiring registration certificate and identification plates, would be to set aside the Colorado law and not follow the policy as set by the Legislature.

'The next question is whether the defendant being, under the law, the owner of such motor vehicle, can she establish as a fact that she did not control it? Certainly, being the owner she had the right of control and under our law it was her duty to exercise such right of control.

'Apparently it was for this very purpose that the Uniform Motor Vehicle Safety Responsibility Law was passed.

'Assuming that the defendant was the owner and with such ownership had the right of control, the court sees no reason why the family car doctrine would not apply in the present situation.'

The trial was begun on December 7, 1954, and there the evidence disclosed that about midnight on the 28th day of April, 1954, Albert D. Ferguson, a minor, was the driver of an automobile on a return trip from Telluride to Nucla. In the automobile at the time were four companions, Albert Hurford, Tilford Hurford, Philo Richards, and Billy Ferguson. The trip from Nucla to Telluride had been a pleasure trip. Next to Albert D. Ferguson on the front seat of the automobile was Philo Richards, to whose right on the front seat was Albert Hurford. Billy Ferguson and Tilford Hurford occupied the back seat of the automobile.

According to the undisputed evidence, Tilford Hurford, Billy Ferguson, and Philo Richards all went to sleep immediately after leaving Telluride, and awakened at the time of the accident, as a result of which Albert Hurford and Albert D. Ferguson were killed. No one of the occupants of the car gave any testimony whatever as to its operation or speed during the return trip to Nucla, and all of the evidence clearly establishes that the four young men named were guests of Albert D. Ferguson.

Under the evidence the liability for any damages here must be based on our automobile guest statute, C.R.S. '53, 13-9-1.

Charles Childers, a State Patrolman, testified that he had seven and a half years of experience as such, and during the entire period of his service was stationed at Montrose, Delta and Norwood. He had served in the Norwood district, where the accident occurred, for four years prior to the accident in question. During the patrolman's service he testified that he had investigated about 120 accidents each year, two-thirds of which were automobile accidents and occurred on mountain highways. He testified that ninety-five per cent of the one-car accidents involved excessive speed, and that as he traveled the highway where the accident occurred weekly he was familiar with it. The highway involved is numbered Colorado 145, and there have been approximately ten accidents a year on it.

With reference to the accident in question, he testified that it occurred at a point known as Keystone Hill, where the highway is winding, 'blacktopped' and a good mountain road, with a grade of two or three per cent. Further, that by personal experiment fifty-five miles an hour was the maximum speed at which a car could be driven around the curve; that at that speed tire marks of both right and left wheels were plainly discernible, and that a safe speed was fifty miles per hour; also that there were no sign posts on the highway. He was notified of the accident about 3:30 a. m. on April 29, 1954, and went to the scene of the accident that morning about 10 a. m. for the purpose of making an investigation as to the cause thereof and obtaining such photographic evidence as was there available. He testified that the weather was clear and the surface of the road dry, both at that time and on the night of the accident; that he had four photographs taken by a fellow patrolman, which photographs were admitted in evidence without objection. This witness further testified that the accident occurred on a curve on the highway and that by measurement the left wheel of the automobile left a distinct mark for 240 feet before leaving the highway, plunged down an embankment for a distance of forty feet, and came to rest after continuing for ninety feet. He was then permitted to testify, over objection, that from the marks on the highway and the position and condition of the car, it must have been traveling at seventy-five miles per hour.

Plaintiffs called defendant as a witness under the provisions of Rule 43(b), Rules of Civil Procedure Colo., and she testified that her son Albert drove the automobile involved in the acident when he needed it, and that he had permission for this particular trip. Further, that she was divorced, and that Albert boarded and lived in her house. On direct examination defendant testified that Albert had worked on the day of his death, and for a period of two years prior thereto, and that he used his wages to help support her and another minor son. Defendant had been ill and couldn't meet expenses, and...