Butters v. Wann

• Decision Date: 24 July 1961
• Docket Number: No. 19331,19331
• Citation: 147 Colo. 352,363 P.2d 494
• Parties: Gladys M. BUTTERS, Plaintiff in Error, v. Dee WANN, doing business as Dee Wann Trucking Co., and Kenneth Duane Adams, Defendants in Error.
• Court: Colorado Supreme Court

Page 494

363 P.2d 494

147 Colo. 352

Gladys M. BUTTERS, Plaintiff in Error, v. Dee WANN, doing business as Dee Wann Trucking Co., and Kenneth Duane Adams, Defendants in Error.

No. 19331.

Supreme Court of Colorado, En Banc.

July 24, 1961.

Rehearing Denied Aug. 14, 1961.

Fred M. Winner, Warren O. Martin, Denver, for plaintiff in error.

Myron H. Burnett, Denver, for defendants in error.

HALL, Chief Justice.

Plaintiff in Error was plaintiff and defendants in error were defendants in the trial court. We refer to the parties as they there appeared, or by name.

Plaintiff sought damages for the wrongful death of her husband, for personal injury to herself, loss of earnings, medical expenses, and for loss of an automobile, all arising out of a collision which occurred on July 6, 1958, at the intersection of East Forty-sixth Avenue and Clayton Street in Denver, Colorado.

Plaintiff was a passenger in an automobile jointly owned with her husband, being driven by her husband, and which collided with a truck owned by defendant Dee Wann, doing business as Dee Wann Trucking Co. The Dee Wann truck was then being driven in an allegedly negligent manner by defendant, Kenneth Duane Adams, an employee of the trucking company.

Defendants denied negligence and charged plaintiff and her husband with contributory negligence.

The action was tried to a jury over objection of plaintiff. The jury returned a verdict in favor of defendants. Plaintiff's motion for a new trial was denied.

Plaintiff is here by writ of error seeking reversal, and urges three grounds therefor:

1. Error in ordering the case tried to a jury, when defendants failed to make timely demand as required by Rule 38, R.C.P.Colo., and the court improperly granted a jury trial under Rule 39, R.C.P.Colo.

2. Prejudicial misconduct by defendants' counsel in questioning plaintiff concerning the revocation of her husband's driver's license.

3. Serious and prejudicial misconduct on the part of the jury.

We will discuss these points in the order listed.

First, plaintiff did not at any time demand a jury trial; in fact at all times objected to a jury trial. Defendants failed to demand a jury trial within ten days after October 16, 1958, the date of service of the last pleading directed to the issues in the case, as provided and required by Rule 38, R.C.P. They did, however, on October 21, 1959, more than a year thereafter, demand a jury trial.

Plaintiff contends that defendants, not having made timely demand for a jury trial, waived their right thereto as provided by Rule 38, R.C.P., and that the court without timely formal request therefor was without authority to order a jury trial.

Under our recent decision in Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (decided September 19, 1960), this question has been determined contrary to plaintiff's contention. The trial court was within its right and power in ordering a jury trial, and error assigned to such ruling is without merit.

Plaintiff's second and third grounds urged for reversal will be considered together.

Plaintiff's claim of alleged prejudicial misconduct by defendants' counsel is based upon cross-examination of plaintiff concerning the deceased's continuity of employment as a truck driver as bearing upon his earnings record. The following are the pertinent questions and answers relating to this contention:

'Q. Was he continuously employed? A. He was continuously employed.

'Q. He was continuously employed---- A.--Yes. Gigantic sold their route services in December.

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'Q. Well now, as a matter of fact, your husband wasn't continuously employed driving a truck for the year preceding--that is, during the time his license was revoked, was he?

'Mr. Winner: I object to that and ask that counsel be reprimanded. He knows it is highly improper.

'The Court: Sustained.

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'The Court: Ladies and gentlemen, the last question that was asked by defendants' counsel just before we adjourned yesterday afternoon concerning the revocation of Mr. Butters' license--objection to that by plaintiff's counsel has been sustained, and the Jury is instructed to disregard it.'

Plaintiff's attorney did not move for a mistrial but apparently was content to rely on the court's instruction to disregard the prejudicial question as sufficient to remove any possible prejudice caused by the improper question. This question was highly improper and in view of other events hereinafter set forth may have been prejudicial, which question we need not resolve because of the fact that the case must be reversed on another ground. On retrial, this error should not be repeated.

Events hereinafter related indicate that the court's instruction to disregard this prejudicial question was flagrantly disregarded by one of the jurors. During the course of the trial on September 12, 1959, without the knowledge of either party or their counsel, one of the jurors telephoned Bill Cullen, the former employer of the deceased and the person to whom reference was made by defendants' counsel in the cross-examination relating to the revocation of plaintiff's driver's license.

This juror inquired of Cullen about the driver's license revocation and the amount of drinking the deceased had done, and further, he discussed with Cullen some of the facts of the case and the impression made upon him by certain of plaintiff's witnesses. The foregoing matters appear by way of uncontradicted affidavits and a stenographic transcript of a subsequent telephone conversation between Cullen and the juror on September 15, 1959, after the trial had been concluded.

This all transpired in spite of the fact that the trial court had given the jury the general cautionary instruction not to discuss...