Bohlender v. Oster
| Decision Date | 26 February 1968 |
| Docket Number | No. 22213,22213 |
| Parties | Adolph BOHLENDER, Plaintiff in Error, v. James Le Roy OSTER, Defendant in Error. |
| Court | Colorado Supreme Court |
Wm. Albion Carlson, Greeley, for plaintiff in error.
Kripke, Hoffman & Friedman, Denver, for defendant in error.
James Le Roy Oster filed a complaint against Adolph Bohlender in which he sought to recover compensatory and exemplary damages which allegedly resulted from an assault and battery committed by Bohlender on May 7, 1963.
The defendant Bohlender denied the allegations of the complaint, and by counterclaim alleged that Oster himself was guilty of assault and battery at the time and place identified in the complaint, as a result of which he (Bohlender) suffered injuries and damages. He, too, sought compensatory and exemplary damages. Two additional counterclaims were made by Bohlender in which he sought injunctive relief to prevent the continuance of alleged unlawful conduct by Oster amounting to an 'interference' with his irrigation ditches and water rights. Admittedly the second and third counterclaims were based on events which took place on various dates substantially prior to the events on which the complaint was based, and at places other than those involved in the affray giving rise to the filing of the complaint.
On motion of counsel for Oster the trial court dismissed the second and third counterclaims as not being proper for inclusion, either as a compulsory or a permissive counterclaim under the provisions of R.C.P.Colo. 13(a) or 13(b).
The issues relating to the charge and countercharge of assault and battery were tried to a jury and resulted in a verdict in favor of Oster for the sum of $18,500 actual and $2,500 exemplary damages. Final judgment entered on the verdict.
As grounds for reversal it is argued that:
1. The trial court erred in dismissing the second and third counterclaims.
2. The trial court erred in denying Bohlender's motion for directed verdict.
3. Error was committed in admitting photographs of the area where the altercation took place, and by the admission of a shirt, worn by Oster at the time, which was covered with blood.
4. The verdict of the jury was excessive, and was the 'result of passion, prejudice and a misconception by the jury of its duties and obligations under the law.'
5. In several particulars (which are mentioned for the first time in this court) various instructions given to the jury caused it to be misled and to misconceive 'its duties and functions under the law.'
It needs only to be said with reference to point 1 above that the injunctive relief sought by Bohlender, allegedly arising out of events unrelated to the event in the complaint, did not require a ruling that the alleged claims were 'compulsory counterclaims' within R.C.P. Colo. 13(a). The court did not abuse its discretion in declining to consider them as 'permissive counterclaims' as that term is defined by R.C.P. Colo. 13(b).
With reference to the admission of the photographs taken both on the ground and from the air, no error was committed. They were accurate representations of the terrain immediately surrounding the place where the parties...
To continue reading
Request your trial
-
Keohane v. Stewart
...(stating that under Colorado law, the standard of review in libel actions is the same as in other cases); Bohlender v. Oster, 165 Colo. 164, 168, 439 P.2d 999, 1003 (1968) (holding that a jury award of damages will not be disturbed on review unless the amount of the award is grossly and man......
-
Ireland v. Wynkoop
...disbursements,' and 'beauty parlor' allegations. See Visual Factor, Inc. v. Sinclair, 166 Colo. 22, 441 P.2d 643; Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999; Beathune v. Cain, 30 Colo.App. 321, 494 P.2d However, the appealability of the dismissal of the 'salary diversion' allegation an......
-
Givan v. City of Colorado Springs, 92CA1428
...However, a district court apparently possesses some discretion as to whether such claims will be accepted. See Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968). On the other hand, some counterclaims are "compulsory" and must be asserted or the right to assert them will be lost. See C.......
-
Robinson v. City and County of Denver
...made to instructions for the first time on appeal in civil cases will receive no consideration by an appellate court. Bohlender v. Oster, 165 Colo. 164, 439 P.2d 999 (1968). On rare occasion, though, "a reviewing court may exercise its discretion and soften this rule when it is necessary to......