Bush v. Jackson, 74--159
| Decision Date | 06 May 1975 |
| Docket Number | No. 74--159,74--159 |
| Citation | 539 P.2d 1290,36 Colo.App. 101 |
| Parties | John BUSH, Plaintiff-Appellee, v. Bennie S. JACKSON, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Walter L. Gerash, P.C., Gary P. Sandblom, Denver, for plaintiff-appellee.
Robert L. McDougal, G. A. Score, Denver, for defendant-appellant.
Defendant Jackson appeals from a judgment entered on a jury verdict in favor of plaintiff Bush in an assault and battery action. We reverse.
After a series of controversies between the parties, who were brothers-in-law and business partners, Jackson shot Bush. In the ensuing lawsuit, Jackson defended on a claim of self-defense. The jury held for Bush and awarded him $75,000 compensatory damages for his hospital and medical expenses, loss of earnings, and pain and suffering, and, in addition, awarded $10,000 exemplary damages.
At the trial, on cross-examination of Jackson, Bush's lawyer was permitted over objection to elicit the information that Jackson had transferred without consideration all of his real property to his wife and his sister after the shooting but before the filing of the lawsuit. On redirect examination, Jackson's attorney asked additional questions in an attempt to explain the transactions.
This evidence might have been admissible for the purpose of showing Jackson's financial condition, to aid the jury in determining an amount that would punish him in the event that (should it decide on liability adversely to Jackson) it determined to award exemplary damages to Bush. See McAllister v. McAllister, 72 Colo. 28, 209 P. 788; Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284. However, it was not offered or admitted for that purpose but on the issue of liability and against the claim of self-defense. In addition to admitting this evidence, the court, over objection, gave the following instruction to the jury:
'You are instructed that the transfer of property by a person after the commission of an act which may render him liable in damages to another may be considered to show a consciousness of liability.
'However, the person effecting the transfer of property is entitled to explain the reason for the disposition of his property.'
With the instruction, the issue is clearly raised as to whether this evidence is admissible on the issue of liability.
This is a matter of first impression in Colorado. In the relatively few cases in which this question has arisen in other jurisdictions, some have held this evidence admissible as tending to show a 'consciousness of liability' (as in the instruction quoted above) and a purpose to evade satisfaction of it, or, to put it another way, as indicating that the defendant felt he had done a wrong, in redress of which he expected that his property might be seized. Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389; Klein v. Pasch, 153 Minn. 291, 190 N.W. 338.
On the other hand, Missouri has held that the defendant cannot be asked if he conveyed property, although he can be asked if he had conveyed his property to avoid the payment of damages he may have considered he had incurred. Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214; Gore v. Brockman, 138 Mo.App. 231, 119 S.W. 1082. In Amsinger, the court stated that it could not believe the law was such that if a person had an automobile accident he could not sell or trade his property for a valuable consideration without the fear of the transaction being used as an admission against him. Still other jurisdictions have held that no evidence in...
To continue reading
Request your trial
- Custody of Thomas, In re
-
Bush v. Jackson
...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 dis......