Bruckman v. Pena

• Decision Date: 13 April 1971
• Docket Number: Nos. 70--643,23830,s. 70--643
• Citation: 487 P.2d 566,29 Colo.App. 357
• Parties: Charles E. BRUCKMAN, and Leonard DeLue, Donald J. Sebern, Theodore Wilson Rinker, Eleanor DeLue, and Ted P. Rinker, each individually and doing business as Armored Motors Service, a co-partnership, Plaintiffs in Error, v. William PENA, a minor, by his mother and next friend, Marie Pena, and Marie Pena and Frank Pena, individually, Defendants in Error. . I
• Court: Colorado Court of Appeals

Page 566

487 P.2d 566

29 Colo.App. 357

Charles E. BRUCKMAN, and Leonard DeLue, Donald J. Sebern Theodore Wilson Rinker, Eleanor DeLue, and Ted P. Rinker each individually and doing business as Armored Motors Service, a co-partnership, Plaintiffs in Error, v. William PENA, a minor, by his mother and next friend, Marie Pena, and Marie Pena and Frank Pena, individually Defendants in Error.

Nos. 70--643, 23830.

Colorado Court of Appeals, Div. I.

April 13, 1971.

As Modified on Denial of Rehearing May 11, 1971.

Certiorari Denied Aug. 9, 1971.

Sheldon, Bayer, McLean & Glasman, George M. Allen, Denver, for plaintiffs in error.

Litvak & Litvak, Lawrence Litvak, Denver, for defendants in error.

DWYER, Judge.

This case was transferred from the Supreme Court pursuant to statute.

Plaintiff William Pena, a minor, brought this action by his mother, as next friend, against the defendants to recover damages for personal injuries sustained in an automobile collision. Plaintiff's parents, Marie Pena and Frank Pena, in a separate claim for relief, sought to recover medical expenses incurred by them for the treatment of their son's injuries. They also sought to recover for loss of earnings of their son, who was sixteen years old at the time he was injured.

The case was tried to the jury. Verdicts were returned in favor of William Pena in the sum of $50,000, and in favor of his parents in the sum of $8,063. Defendants, appearing here as plaintiffs in error, seek reversal of the judgments entered on the verdicts.

Plaintiff was injured on July 21, 1964, when the car in which he was riding collided with a truck driven by the defendant Bruckman and owned by the defendant Armored Motors Service. On June 11, 1965, plaintiff was injured in a second collision and certain injuries he had sustained in the first collision were aggravated. This action was commenced on June 25, 1965, and the only defendants named in the action are the owner and driver of the truck involved in the first collision.

In seeking reversal, defendants assert that the court was in error in one of its instructions to the jury and in entering an order which limited defendants' evidence concerning the second accident and the claims arising therefrom.

I

The instruction complained of concerns the amount of damages recoverable from the defendants. The first part of the instruction, which is a proper statement of the law applicable to the case, is as follows:

'If you find that after the collision complained of Plaintiff, William Pena, had an injury which aggravated the ailment or disability received in the collision complained of, the Plaintiff is entitled to recover for the injury or pain received in the collision complained of; but he is not entitled to recover for any physical ailment or disability which he may have incurred subsequent to the collision.

'Where a subsequent injury occurs which aggravated the condition caused by the collision, it is your duty, if possible, to apportion the amount of disability and pain between that caused by the subsequent injury and that caused by the collision.'

In addition to this correct statement of the law, the court further instructed the jury:

'But if you find that the evidence does not permit such an apportionment, then the Defendants are liable for the entire disability.'

Defendants argue that this last statement in the instruction is in error. Counsel have cited no authority directly in point and we have found none. Accordingly, we decide the case as one of first impression.

It is the general rule that one injured by the negligence of another is entitled to recover the damages proximately caused by the act of the tort-feasor, and the burden of proof is upon the plaintiff to establish that the damages he seeks were proximately caused by the negligence of the defendant. In accordance with this general rule, we hold that the instruction is in error because it permits the plaintiffs to recover damages against the defendants for injuries which the plaintiff received subsequent to any act of negligence on the part of the defendants and from causes for which the defendants were in no way responsible. The instruction erroneously places upon the defendants the burden of proving that plaintiff's disability can be apportioned between that caused by the collision here involved and that caused by the subsequent injury in order to limit their liability to the damages proximately caused by their negligence. Counsel for plaintiffs argues that the rules concerning apportionment of disability announced by our Supreme Court in Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, should also apply here. In Newbury, the Court stated:

'We find the law to be that where a pre-existing diseased condition exists, and where after trauma aggravating the condition disability and pain result, and no apportionment of the disability between that caused by the pre- existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant, whose act of negligence was the cause of the trauma, is responsible for the entire damage.'

The pre-existing condition in the Newbury case was of nontraumatic origin, but the rules there announced also apply where the pre-existing condition was caused by trauma. Hylton v. Wade, 29...