American Ins. Co. v. Naylor

• Decision Date: 30 January 1939
• Docket Number: 14348,14349.
• Citation: 87 P.2d 260,103 Colo. 461
• Parties: AMERICAN INS. CO. et al. v. NAYLOR (two cases).
• Court: Colorado Supreme Court

87 P.2d 260

103 Colo. 461

AMERICAN INS. CO. et al. v. NAYLOR (two cases).

Nos. 14348, 14349.

Supreme Court of Colorado, En Banc.

January 30, 1939

Rehearing Denied Feb. 20, 1939.

Error to District Court, Boulder County; Claude C. Coffin, Judge.

Actions consolidated for trial, by J. Fred Naylor against the American Insurance Company and another for damages for the death of plaintiff's wife resulting from an automobile accident and for the loss of her services and companionship and hospital, medical and funeral expenses. To review adverse judgments, defendants bring error and plaintiff assigns cross-error.

Judgments amended and affirmed.

Berman & Holland and Joseph N. Lilly, all of Denver (Otto Friedrichs, of Denver, of counsel), for plaintiffs in error.

Smith Brock, Akolt & Campbell, R. A. Dick, and John P. Akolt, all of Denver, for defendant in error.

YOUNG Justice.

Defendant in error, Naylor, instituted two actions against plaintiffs in error in the district court of Boulder county. In the first he sought damages for the death of his wife resulting from an automobile accident, occasioned, as he alleged, by the negligence of plaintiffs in error. In the second he asked judgment for the loss of her services and companionship during the period intervening between the accident and her death and for the amount of expenditures for hospital and medical services made necessary by the injuries sustained by the wife in the accident, for funeral expenses, and for exemplary damages. The cases were consolidated for trial and verdicts returned in favor of the plaintiff in each. On the overruling of the motions for new trial and entry of judgments on the verdicts, plaintiff requested that interest on the amounts awarded be included in the judgments which request was by the court denied. The judgments are here, for review upon assignments of error by defendants to the judgments against them, and on cross assignments of plaintiff based upon the court's refusal to allow him interest.

In the circumstances presented we deem it desirable to consider the cases together; accordingly disposition will be made of both by this opinion.

The evidence with respect to the occurrence of the accident is substantially as follows: On October 23, 1934, the plaintiff was taking his wife from Longmont, where they resided, to Denver to remain at the home of his parents where she might be under the care of a physician the remaining period of her pregnancy which was then some five months advanced. They were proceeding southerly in a Nash automobile driven by plaintiff's brother, on highway 285 from Longmont to Denver following about 200 feet behind a Ford car that was travelling at a rate of about 35 to 40 miles per hour. At a point just north of where a road leaves the main highway and runs easterly to the town of Erie, the Ford slackened its speed and the driver signalled he would make a left turn. The driver of the Nash reduced the speed of his car, but not quite as rapidly as did the Ford driver, thus lessening somewhat the distance between the two. As the driver of the Nash observed the signal, he noticed also a DeSoto car driven by defendant Reams proceeding northerly along the highway at a point about an eighth of a mile away at a speed of 55 to 60 miles an hour. About a hundred sixty feet south of the intersection of the roads the DeSoto began to swerve from one side of the road to the other and went off and on the pavement three or four times. Just as the Ford entered the branch road the DeSoto turned diagonally across the pavement to the west side directly in front of the Nash car, which was then moving very slowly, if it had not come to a standstill, and at a point 18 feet north of the north line of the intersection the right side of the DeSoto at a point just back of the front right fender collided violently with the front part of the Nash. After the collision the Nash was left facing in a southwesterly direction partly on and partly off the pavement, the DeSoto facing due south in the barrow pit, parallel with and against the fence on the west side of the road. The pavement at the intersection bore marks left by a 'terrific skid' of such force that the rear wheels of the DeSoto in the gravel on the east shoulder propelled a rock with sufficient force to break a glass in the door of the Ford car. The visible black skid marks on the pavement began at a point 195 feet south of the point of impact, and 'grew more intense' as they approached the intersection. There were '195 feet of skidding marks, skidded a good part of the way.' The driver of the Ford car had his arm out of the car making a signal for a left turn and had pulled over into the middle of the road for a hundred yards Before he turned. There were no vehicles between the DeSoto and Ford cars and no mist or fog to obscure vision. While there was no bright sunlight, visibility was good. Notwithstanding these conditions Reams, the driver of the DeSoto, says he did not know the Ford was going to turn into the Erie road until he 'saw the front wheels turning.' If the driver of the Ford car began signalling for a left turn and pulled into the middle of the road a hundred yards Before coming to the intersection it was a question for the jury to determine whether a man driving at a rate of 55 to 60 miles an hour--approximately 75 to 90 feet per second--in the exercise of ordinary care should have seen the Ford car in the middle of the road and the signal for a turn Before the front wheels of the latter actually began to make the turn, and so seeing whether he should not have sooner applied his brakes so as to bring his car under control.

Assuming as an abstract proposition of law that the contention of defendants that they were entitled, under the authority of Denver City Tramway Co. v. Gustafson, 21 Colo.App. 478, 121 P. 1015, Pawnee Farmers' Elevator & Supply Co. v. Powell, 76 Colo. 1, 227 P. 836, 37 A.L.R. 6, and other cases cited, to have the jury instructed that if the testimony introduced by plaintiff disclosed contributory negligence on the part of himself or his agent, that defendant was relieved from showing contributory negligence by his evidence, the failure so to instruct was not error in this case. The remarks of the trial judge in ruling on the motion for a new trial were pertinent, and his determination of the above mentioned contention was correct. He said: 'Well, there is a possibility of construing our Instruction No. 8 as possibly meaning that the defendant must produce the evidence. I don't think that is either to be followed as of necessity or as a logical interpretation. The only error in Instruction No. 8 was not prejudicial, but if the verdict of the jury had been the other way I think it would have been prejudicial to have submitted the question of contributory negligence or last clear chance to the jury. I don't believe there was any warranty for that.'

There are but two other questions raised by the assignments of error that we deem it necessary to determine.

1. Is the evidence sufficient to show that Reams, at the time and place of the accident, was acting within the scope of his authority as agent of his codefendant, the American Insurance Company, so that his acts of negligence may be imputed to his principal? 2. Is the evidence sufficient to show that the accident was the proximate cause of the death of plaintiff's wife?

The testimony with respect to the first issue fairly tends to show the following facts: That Reams was the manager of the Rocky Mountain division of the American Insurance Company. The company was engaged in writing fire insurance through agents in various parts of Colorado. Lawrence E. Falls, who was with Reams in the car at the time of the collision, was a vice president of the company residing in the state of New Jersey, where the insurance company had its home office. Mr. Falls had been on a business trip to San Francisco and on his return stopped in Denver to inspect the office of which Reams was manager, to observe the personnel employed, including Reams, and to ascertain any facts which might be of advantage to the company in its Denver offices. He stated that on this particular visit he was acting in a supervisory capacity and that it was for the purpose of an inspection for and on behalf of the company.

On the night of October 22, Mr. Falls was a dinner guest at the home of Mr. Reams and there they 'planned to visit Rocky Mountain National Park the next day,' as Mr. Falls had never been in the mountains about Denver. The car that they used for the trip was the property of the company, was intended by the company for the use of its general manager and the expense of its maintenance and operation was paid by...