Cynthia J. Stephens and Kraftco Corporation d/b/a Kraft Foods, a Delaware corporation qualified to do business in Cоlorado v. Herbert V. Koch
No. C-995
Supreme Court of Colorado
March 7, 1977
Rehearing denied April 4, 1977
(561 P.2d 333)
A judgment by default is not designed to be a device to catch the unwary or even the negligent. Where, as here, a party is not represented by a lawyer, a cоurt should be reluctant to foreclose the opportunity of a litigant to present some defense. Notice should therefore have been supplied.
Accordingly, we vacate the judgment of default and remand to the court of appeals with directions to remand to the trial court for further proceedings consonant with the views expressed herein.
Mr. Justice Kelley does not participate.
Richard A. DeZengremel, Blaine A. Rutenbeck, Irvin M. Kent, for respondеnt.
En Banc.
MR. CHIEF JUSTICE PRINGLE delivered the opinion of the Court.
This suit was instituted by the plaintiff, Herbert Koch, to recover damages which allegedly occurred when his car was struck from the rear by car driven by the defendant, Cynthia Stephens. Shortly after the accident, the plaintiff complained of stomach and leg pains. A doctor‘s examination revealed that the plaintiff had an abdominаl aneurysm, and the condition was subsequently corrected by surgery. It was undisputed that
I.
As this court has made clear, a defendant must take his “victim” as he finds him, and if the jury is unable to apportion damages betweеn an injury and a preexisting condition, the negligent party is responsible for the entire disability. See Newberry v. Vogel, 151 Colo. 520, 379 P.2d 811 (1963). This rule of law is embodied in
“Where a pre-existing cоndition exists which has been aggravated by the accident it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident. But if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability.”
The law and this instruction have been approved by Colorado courts on numerous occasions. See Intermill v. Heumesser, 154 Colo. 496, 391 P.2d 684 (1964); Newberry v. Vogel, supra; Brittis v. Freemon, 34 Colo. App. 348, 527 P.2d 1175 (1974); Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974).
The court of appeals held that in its present form the instruction was improper and its submission to the jury required reversal. The court of appeals concluded that the instruction erroneously failed to inform the jury of where the burden of proof lies with respect to apportionment. Additional instructions which placed the burdens of proof on the plaintiff to establish his case and on the defendant to establish an affirmative defense were thought likely to confuse the jury. Consequently, the court of appeals ordered that
It is, of course, the obligation of the judge to cоrrectly instruct the jury on the law applicable to the case. But the power to review does not encompass the power to reverse a jury verdict based on a legally correct instruction, although the appellate court might prefer other language. We believe that the instruction submitted to the jury in this case correctly stated the law. The lаw, as announced by this court in Newberry, supra,
We fail to see how the addition by the court of аppeals significantly contributes to the clear statement contained in
II.
It was contended that there was insufficient evidence presented tо warrant submission of the issue of apportionment to the jury. While several doctors testified that they did not believe that the аccident had aggravated the aneurysm at all, one doctor, familiar with the plaintiff‘s history, stated that certain factоrs such as the onset of the pains after the accident led him to believe that the accident, by any one of a number of possible mechanisms, had “accelerated” the plaintiff‘s condition. Under such circumstances, submission to the jury of the instruction relating to apportionment was proper. See Industrial Comm‘n v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Royal Indemnity Co. v. Industrial Comm‘n, 88 Colo. 113, 293 P. 342 (1930).
The judgment of the court of appeals is reversed and the judgment of the district court is reinstated.
MR. JUSTICE GROVES and MR. JUSTICE CARRIGAN dissenting.
MR. JUSTICE KELLEY not participating.
MR. JUSTICE GROVES dissenting:
I would affirm the court of appeals. The jury was instructed that the plaintiff had the burden of proving his case. The court of appeals noted that this could lead the jury to place upon the plаintiff the burden of establishing the extent to which the defendant would not be responsible for plaintiff‘s present condition. I agree and believe that the addition to
MR. JUSTICE CARRIGAN joins in this dissent.