Bush v. Jackson

• Decision Date: 12 July 1976
• Docket Number: No. C--748,C--748
• Citation: 552 P.2d 509,191 Colo. 249
• Parties: John BUSH, Petitioner, v. Benny S. JACKSON, Respondent.
• Court: Colorado Supreme Court

Page 509

552 P.2d 509

191 Colo. 249

John BUSH, Petitioner, v.Benny S. JACKSON, Respondent.

No. C--748.

Supreme Court of Colorado, En Banc.

July 12, 1976.

Walter L. Gerash, P.C., Jeffrey A. Springer, Gary P. Sandblom, Denver, for petitioner.

Robert L. McDougal, Gertrude A. Score, Denver, for respondent.

DAY, Justice.

We granted certiorari to review the decision of the court of appeals in Bush v. Jackson, Colo.App., 539 P.2d 1290(1975), to determine an evidentiary question of first impression in Colorado.We affirm the court of appeals' reversal of the district court judgment, but for a different reason.We adopt an evidentiary rule contrary to a minority view adopted by the court of appeals.

Petitioner Bush and respondent Jackson were partners in a business enterprise.Animosity arose between the two, culminating in respondent shooting petitioner.Petitioner instituted suit to recover damages for injuries sustained from the gunshot.Respondent denied liability claiming that he had acted in self-defense.

Petitioner was permitted, over objection, to cross-examine respondent concerning disposition of his assets.Respondent admitted that shortly after the shooting, he placed all of his real property in the names of his wife and sister.He received no remuneration in exchange.He testified he was motivated to make the gift of property out of affection for his wife and a desire to compensate his sister for taking care of their mother.

The trial judge instructed the jury that evidence of a property transfer, together with any rebuttal evidence, may be considered in determining whether these acts indicated a consciousness of liability on respondent's part.

The jury returned a verdict in favor of petitioner, awarding him $75,000 compensatory and $10,000 punitive damages.

The court of appeals reversed the judgment of the trial court and remanded the case for a new trial, holding that the transfer of property after an event could simply be the result of an understandable fear of an adverse outcome of impending litigation.The court of appeals dismissed the 'consciousness of liability' theory proposed by petitioner as being a farfetched and uncertain legal conclusion.It stated that this evidence was irrelevant and prejudicial to respondent.

We do not adopt the court of appeals decision declaring the inadmissibility of this evidence.However, we find that the trial court's instruction to the jury on the relevancy of the evidence was error, thus requiring a new trial.

I.

The court of appeals in its decision adopted an extreme minority rule in holding that evidence of the transfer of petitioner's property was inadmissible.It gave considerable weight to the case of Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214(1934).That case, however, has been criticized as unsound in 2 J. Wigmore, Evidence 282(3d ed.) note 3, and in one jurisdiction.SeeJohnson v. O'Brien, 258 Minn. 502, 105 N.W.2d 244(1960).The minority rule has apparently been adopted in only four jurisdictions.On the other hand the brief of petitioner cites twenty-four cases from fourteen jurisdictions holding that the evidence is admissible.See alsoAnnot.38 A.L.R.2d 996.

The court of appeals reasoned that a transfer of property after the occurrence giving rise to the damage claim could be innocently motivated.While this may be true, it is the relevancy of the evidence and not its sufficiency which determines its admissibility.The test of the relevancy of such evidence is whether it renders the claimed inference more probable than it would be without the evidence.According to this test, it does not matter that other inferences may be equally probable.It is for the jury to determine what motivated the transfer.We have held that evidence of flight may be shown as consciousness of guilt.Bernard v. People, 124 Colo. 424, 238 P.2d 852(1951);Jordan v. People, 151 Colo. 133, 376 P.2d 699(1962), Cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699.Likewise, evidence of a transfer of property after an occurrence which may render that person liable in damages is admissible to show a consciousness of liability and a purpose to evade satisfaction of it.But such evidence does not establish negligence as a matter of law.Cox v. Wright-Hennepin Co-Operative Electric Association, 281 Minn. 228, 161 N.W.2d 294(1968).

II.

The...