189 P.2d 147 | Colo. | 1948
Lead Opinion
delivered the opinion of the court.
R. J. Wilson and Dosia Wilson, in July, 1944, brought separate actions against Trujillo and Joy to recover damages resulting from an automobile accident, in which it was alleged that Joy’s truck, driven by Trujillo in the course of Joy’s business, negligently ran into a parked automobile in which these two plaintiffs were sitting;
These cases were consolidated for trial and defendants here in both cases seek reversal of adverse judgments below.
Reversal is first urged upon the ground that the trial court erred in denying the last motion for stay of proceedings and in that connection is raised the question of the sufficiency of showing to justify judgment against defendant Trujillo.
At the October, 1944, term, upon application of defendants for stay of proceedings upon the ground that Trujillo was in military service, the cases were continued until the next term of court. On February 13, 1945, further motion for stay was filed. The cases were thereafter set for trial, and on October 17, 1945, defendants’ counsel filed a further motion reciting that on September 12, they had been advised by the wife of defendant Trujillo, that he was still in the Philippine Islands. Pursuant to that motion setting was again vacated and the cases reset for January 14, 1946, and heard on January 28; without further showing or objection or further motion for stay.
The answers filed by the defendant Joy merely denied the allegations of the complaint, either specifically or on information and belief.
At the outset of the trial counsel for defendants agreed that there was “no controversy as to the question of negligence; and that the only question permitted to the
Trujillo’s negligence having been admitted, the only question to be tried was the amount of plaintiffs’ damages. There was no objection to trial on the date last set therefor, and no showing as to Trujillo’s then prejudice by virtue of military service. There is no showing that Trujillo had any knowledge as to the amount of such damages or that, if so, his deposition could not have been taken and safely used in his behalf. The matter of a stay of proceedings is one within the discretion of the court and its ruling will not be disturbed on review unless an abuse of discretion appears from the record. Koons v. Nelson, 113 Colo. 574, 160 P. (2d) 367; People ex rel. v. Neary, 113 Colo. 12, 154 P. (2d) 48. Trujillo’s rights under the Soldiers’ and Sailors’ Civil Relief Act could not avail the other defendant in any event. J. C. Penney Co. v. Oberpriller, 163 S.W. (2d) 1067. Accordingly, no abuse of discretion appears from that record.
Reversal is sought on the further ground that the amount of damages fixed in the verdicts herein are excessive. We cannot invade the province of the jury under the well-settled rule. “The judgment of the jury as to what is a proper and just compensation in such cases must govern, unless the damages awarded are so obviously disproportionate to the injuries shown to be sustained, as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.” Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632.
Error is further urged in admission of evidence and instructing the jury as to damage through loss of income by R. J. Wilson who was permitted to testify as to cost of hired help and his operations and profit the preceding season in raising turkeys and the limit imposed on such operations as a result of the accident. Such evidence was admissible, Mountain States Co. v.
Further error is assigned to instruction of the jury that it might consider the market value of the car before and after the accident in measuring the damage thereto, when, it is urged, the car was thereafter converted into a truck and no evidence was introduced as to the difference in value between the original car before the injury and the truck after conversion. There was evidence before the jury as to the value of the car both before and after the accident. It appears from the evidence that the car was substantially destroyed as an automobile. Such being the case the measure of damage is the difference between its value immediately before its damage and immediately thereafter, together with any expense of reasonable efforts to preserve or restore it. The fact that the wrecked car was thereafter converted into a truck would not change the applicable rule as to damage, but merely go to the question of value after the injury. The instruction given by the court was correct.
Service was had on Joy in each case, but the record shows no service on Trujillo. No answer was filed in either case in behalf of Trujillo, and no formal appearance was entered in his behalf. However, appearance was made in his behalf (1) by the filing of motions by counsel for defendants Joy, who signed as “attorneys for defendants,” (2) by inserting at the bottom of motions for continuance the address of defendant Trujillo, as well as that of defendant Joy, and (3) by stipulation
Safe practice makes it advisable that the record show. formal entry of appearance by counsel in behalf of any defendant who has not been served or filed a pleading, before judgment is rendered against him; but an attorney appearing for a party to an action is presumed to have authority therefor. In the instant case not only did counsel appear in behalf of defendant Trujillo in the trial court, although informally, but he also appears for him in bringing error in this court; and after challenge as to appearance in the answer brief, counsel for defendants specifically declares that appearance was made in behalf of Trujillo in the trial court. While the record is unsatisfactory as to Trujillo, there is no motion or request before us to vacate the judgment as against him; the declaration of counsel as an officer of the court must be given credence and in the absence of further showing the judgment against Trujillo should not now be vacated. Had request for such vacation been made in Trujillo’s behalf with allegation of lack of service and authority, a different situation would arise.
We have considered the other specifications urged for reversal and find them without merit.
Judgment affirmed.
Dissenting Opinion
dissenting.
Regardless of whether error attends the judgment generally, to which, briefly, I shall address myself in the closing portion of this opinion, it is clear, I think,
It appears, plaintiffs’ allegations considered, that, April 29, 1943, “F. B. Joy and Robert E. Joy, were doing business as Ace Box Company, a Copartnership,” and that defendant Trujillo was employed by them as a truck driver; that on said day, such employee, driving and operating said truck in and about the business of the Ace Box Company, “carelessly and negligently” drove same against plaintiffs’ automobile, in which they were seated, thereby damaging the automobile and injuring plaintiffs, to their several damage, etc. It further appears, that, while the accident occurred April 29, 1943, as already stated, complaint in relation thereto was not filed until July 12, 1944; that while process was timely served on the Joys, not then, or ever, was process served on Trujillo; that September 26, 1944, “defendants except Trujillo” filed answer to the complaint, denying “that they or Trujillo were careless or negligent as alleged or otherwise or at all”; that the answer was signed by counsel, following which there was a memorandum, saying that the “Address of defendants except Trujillo 2950 Platte River Drive, Denver, Colorado,” but said nothing of Trujillo’s address, which was consistent with the fact that counsel specifically had excluded Trujillo from his representation; that November 18, 1944, coun
February 13, 1945, the case again having been set for trial, counsel for “defendants” moved for vacation of that setting, urging, as in the earlier application, the continued absence of Trujillo, saying that, “several days ago the wife of Rudolph Trujillo was interviewed by the defendant F. B. Joy and that she stated that her last information from her husband was that he was either in the South Pacific or India and that there was no likelihood of his return in the near future on a furlough or otherwise.” Counsel signed the motion as “attorneys for defendants. Address of defendants 2950 Platte River Drive, Denver, Colorado. [The address of the Joys, not that of Trujillo].” Although formal order to that end does not appear, it is evident that that motion must have been granted, for October 17, 1945, counsel for “defendants” filed a third motion for postponement, in which they reemphasized the continued absence of Trujillo, and added that Mrs. Trujillo had written H. Berman, one of counsel, “I am sorry I am not able to tell you when'my husband Rudolph P. Trujillo will be home. He is still in the Phillipine Islands.” This motion was signed by counsel for “defendants,” but the address of no defendant was given, nor were they identified otherwise. The motion was denied, but for convenience generally, as appears, tentatively the case was reset for January 14, 1946, when it was tried. As the result of the trial, verdict in favor of plaintiff was returned. In form the verdict read: “We, the jury, find the issues herein joined for the plaintiff,” but did not say against whom. But, of necessity, as seems manifest, it was not against Trujillo, for he had neither been served with process, nor had he answered. As between him and plaintiff, “issues” had
The court’s opinion stresses the fact that counsel appeared for “defendants,” hence, as argued, Trujillo must have been included therein. I have been at pains to state the situation at length. The term “defendants,” emphasized in the court’s opinion as of controlling importance, examined in the light thereof, clearly shows otherwise. From the inception of the case, and until the closing minutes of the trial, there were two defendants other than Trujillo, namely, F. B. Joy and Robert E. Joy. Counsel not only filed answer for those defendants, but were careful to state that they were not answering for Trujillo. In addition to such formal reservation, in the course of the answer of the two Joys, they denied, as already stated, that “they or Trujillo were careless or negligent as alleged or otherwise or at all.” In this connection, the court in the majority states: “No answer was filed * * * in behalf of Trujillo, and no formal appearance was entered in his behalf.” But, the court emphasized, “appearance was made in his behalf (1) by the filing of motions by counsel for defendants Joy, who signed as ‘attorneys for defendants,’ (2) by inserting at the bottom of motions * * * the address of defendant Trujillo, as well as that of defendants Joy, and (3) by stipulation of counsel that the verdict should bear Trujillo’s name as defendant.” I have set forth earlier in this opinion, the record as far as it bears on reasons (1) and (2), quoted immediately above from the court’s opinion, and as to point (3) I will state the record as I discuss it. I will treat the points in order.
(1, 2). It should be kept in mind that there were three defendants named in the complaint, that is to say, Rudolph Peter Trujillo, and F. B. Joy and Robert E. Joy, the latter two as Ace Box Company; that in the intro
(3) At the very close of the case, although no reason therefor is stated, or even hinted, the name of Robert E. Joy, always theretofore having been a defendant, and who had joined F. B. Joy in a joint answer to the complaint, as already has been stated, was eliminated as a party, by the simple expedient of a stipulation, reading: “It is stipulated and agreed by and between the parties the verdict in this case shall be entitled ‘R. J. Wilson vs. F. B. Joy, doing business as the Ace Box Company, and Rudolph Pete Trujillo * * *’ ” Theretofore both the Joys and Trujillo had been defendants, and had it not been for the stipulation the verdict, as a matter of form, and of course, would have carried all their names. The effect of the stipulation was to make F. B. Joy the sole owner of the Ace Box Company, and, based thereon, to relieve Robert E. Joy from liability, and that was its sole purpose. It was agreed by “the parties,” reads the stipulation, not by counsel for them. Trujillo was not there, so, perforce, the agreement was between plaintiff and the two Joys. Trujillo and both the Joys jointly had been sued. Trujillo was not served with process, and by consent of plaintiff and defendant F. B. Joy, the latter gentleman became the sole defendant presently before the court. That that was the theory on which all present proceeded is borne out by the record, which says that the liability of the “defendant,” not the defendants, was admitted.
But why, in any event, I venture to query, should we be concerned in affirming this judgment against Trujillo? Counsel for the prevailing plaintiff do not ask
As to the judgment against the remaining Joy, my study convinces that material error appears. Clearly, defendant Joy’s situation considered, Trujillo’s presence at the trial was of supreme importance. Only he and plaintiffs, husband and-wife, were eyewitnesses of the event out of which the controversy arose. Dates considered, it happened at an untoward time. War was everywhere. Perhaps, out of respect to that very fact, plaintiff delayed instituting action, almost for a year and-a half. In the meantime Trujillo had become,a serviceman, and was sent far away. ■ Out of recognition, of his
For reasons I have stated, the judgment should be reversed as to both Trujillo and Joy, and as to the latter, remanded for a new trial. If by that time Trujillo has not been served with process, nothing in the record as now appears should be regarded as justifying entry of judgment against him. But, if he has been served, then
In so far as it relates to serviceman Trujillo, Mr. Justice Alter concurs in this opinion.