161 P.2d 338 | Colo. | 1945
EVIE FAYE HODGES, defendant in error, plaintiff below, brought this action to recover damages for the death of her husband, allegedly caused by the negligent operation of a truck driven by Verne Decker, one of the plaintiffs in error, an alleged employee of Drake, the other plaintiff in error, both being defendants below. After certain alleged defenses were stricken and issues joined, trial was to a jury which returned a verdict in favor of the plaintiff in the sum of $5,000, and judgment was entered accordingly. Plaintiffs in error seek reversal of the judgment. We shall refer to the parties as they appeared below, or by name.
The accident, which resulted in the death of Mr. Hodges, occurred twenty-seven miles north of Craig, in Moffat county, Colorado, about 5:00 o'clock p.m., July 3, 1941, when the Buick car in which he was riding was struck by a gravel truck owned by Drake and operated by Decker. The state highway department had leased, and was operating, several trucks, including the one involved in the collision, and just prior to the accident several of them — the drivers of which had completed their work for the day — were being driven in a southerly direction towards Craig. The men were apparently anxious to arrive at their destination, and there was evidence that the drivers of the Drake truck and another had been racing; that Decker had pulled out of his line of traffic to his left to pass the truck ahead of him; that suddenly the Hodges car appeared over the brow of a hill traveling north, i.e., coming toward Decker; that Decker tried to resume his place in the line of traffic, but, deciding he could not do so, pulled over farther to the left in an attempt to get into the adjacent borrow pit; that in doing so he struck the Buick car, Hodges being instantly killed. There is no doubt that Hodges was proceeding at a rapid rate of speed, but as to *13 whether he was exceeding the speed limit, the evidence was in conflict, and the skid marks from the tires on his auto indicated that he did try to slow his car down sufficiently to avoid the accident.
At the time of his death, Hodges was an employee of a Wyoming Oil Company and was returning to Casper. His widow applied for, and received, compensation under the pertinent Wyoming act. She also had an agreement with the Wyoming Industrial Accident Fund whereby she was to reimburse it from the proceeds of any judgment collected in this suit.
The present action was brought by Mrs. Hodges, the widow, under the Colorado statute concerning damages for death occasioned by negligence. '35 C.S.A., c. 50.
Defendants stress three points of their specifications for reversal: 1. Plaintiff, having elected to claim compensation under the Wyoming act, cannot maintain this suit. 2. Hodges was guilty of contributory negligence as a matter of law. 3. Decker was not acting as an employee of Drake at the time of the accident.
[1, 2] 1. On the general proposition that a person who has a cause of action against a third party tortfeasor for damages for wrongful death or injury does not lose or waive it by exercising another right based on a claim for workmen's compensation, is settled beyond dispute in this jurisdiction. King v. O. P. BaurConfectionery Co.,
[3] More specifically with regard to defendants' contention that this action was not brought by the real *14
party in interest or for the benefit of those entitled to share in recovery under the Colorado statute, we believe they are in error. The tort was committed in Colorado and no common-law right existed to bring such an action. The sole right is based on the Colorado statute, chapter 50, '35 C.S.A., which gives a right of action to the wife of decedent. Had plaintiff established jurisdiction over defendants and brought suit in a Wyoming court, the action still would have been based upon, and governed by, the Colorado statute and could only have been brought by the widow as therein provided. Walsh v. Boston Maine Railroad,
Assuming the facts to be as alleged in the stricken defenses, plaintiff's husband, the victim of the accident, was employed in the state of Wyoming; plaintiff applied for and, when this action was brought, was receiving compensation from the Wyoming Industrial Accident Fund for his death; if she did not remarry she ultimately would receive $3500, and, together with the children, would receive a total of more than the $5,000 maximum recovery for which provision is made under our statute. However, only a small part of such compensation had been received at the time of the bringing of the action; its receipt would be in small monthly payments over a term of years and would be contingent upon marriage or death as to whom payable; consequently, unless inhibited by workmen's compensation statutes, the widow was both a proper and a necessary party to the action.
[4, 5] The purpose of workmen's compensation acts is to provide an award of compensation in favor of injured employees, and to protect all workmen save those specifically excluded from their provisions. Sechler v.Pastore,
[6-8] 2. The record does not support the contention that Hodges was guilty of contributory negligence as a matter of law. Even if he was violating the speed limit, the testimony concerning which was in conflict, the negligence would have been no more than prima facie, and unless it was the proximate cause of the accident, it still would not preclude recovery if the negligence of Decker was the proximate cause, and where there is reasonable doubt as to the proximate cause, it is a matter to be determined by the jury under proper instructions. In this case the jury was instructed: "In the case of a collision between vehicles a presumption of negligence arises against the driver who was on the wrong side of the road at the time of the collision although such presumption is not a conclusive presumption." Counsel made no objection to this instruction, and we approved a similar one in Larson v. Long, 74 *17
[9, 10] 3. Defendants' theory that Decker was not an employee of Drake also is not supported by the record. It is conceded that Drake owned the truck, and that during the working day it was under temporary bailment to the highway department, but the evidence also shows that at the time of the accident, Decker had finished his work for the day, and was under duty to Drake to return the truck to the trailer camp at Craig that night. The record also discloses that Drake could have discharged Decker at any time. Decker was also supposed to look after minor repairs on the truck. Drake's arrangement with the highway department was that he would furnish the truck and the driver. This is sufficient evidence concerning Decker's actual employer to justify submitting the question to the jury. In IndustrialCommission v. Aetna Life Ins. Co.,
Accordingly, the judgment is affirmed.
MR. JUSTICE BURKE and MR. JUSTICE STONE concur. *19