Cohen v. Fox
| Decision Date | 13 April 1914 |
| Docket Number | 3836 |
| Citation | 141 P. 504,26 Colo.App. 55 |
| Parties | COHEN v. FOX. |
| Court | Colorado Court of Appeals |
Rehearing Denied June 8, 1914
Appeal from District Court, City and County of Denver; Hubert L Shattuck, Judge.
Action by Esther Fox against Pansy Cohen. From a judgment for plaintiff, defendant appeals. Modified and affirmed.
John T. Bottom, of Denver, for appellant.
Philip Hornbein, of Denver, for appellee.
The plaintiff ran out into West Colfax avenue between Clay and Dale-Court streets, in Denver, to rescue her infant brother from an apprehended danger of his being run over by an approaching motorcycle, on which the defendant and another were riding, and which ran against the plaintiff and threw her against the curbing, from which she sustained injuries. She sued the defendant for damages for the personal injuries thus sustained, alleging negligence in the first cause of action, and a willful, reckless, and malicious disregard of the rights of the plaintiff in the second cause of action. She prayed for judgment for $2,245 compensatory damages $1,000 for exemplary damages, and asked for an execution against the body of the defendant under the statute. Section 3024, R.S.1908.
On the trial the defendant asked the court to require the plaintiff to elect as to which cause of action she would rely upon, and she consented to rely upon the first cause of action provided the question as to malice, as alleged in the second cause of action, were determined by instructions to the jury; and with this understanding, the court proceeded with the trial, without any ruling upon the motion. However, the court instructed the jury that, if they believed from a preponderance of the evidence that the injury complained of was attended by circumstances of malice, or a wanton and reckless disregard for the plaintiff's rights and feelings, they might award the plaintiff, in addition to her actual damages, such exemplary damages as they might deem reasonable.
The court further submitted a special interrogatory to the jury as follows: "Was the defendant guilty of malice in connection with the injuries sustained by the plaintiff?" The jury answered this question in the affirmative, and it was probably requested by the plaintiff and propounded by the court, with special reference to the terms of the body judgment statute aforesaid; but there is nothing in the instructions, nor in the interrogatory, showing that such was the purpose. A general verdict for $600 was returned, upon which judgment was entered, and a jail sentence of two months, or until the judgment was paid, imposed.
It is difficult to determine from the record whether the court should have instructed the jury that it might find exemplary damages; it is evident, however, that the court should not have submitted the special interrogatory, with reference to malice as used in the statute concerning a body judgment because there is no evidence of express malice, and nothing from which it could be...
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Bonidy v. Vail Valley Ctr. For Aesthetic Dentistry
...disclose an utter disregard of consequences, aside from any intentional malice in its odious or malevolent sense.” Cohen v. Fox, 26 Colo.App. 55, 58, 141 P. 504, 505 (1914). Similarly, the West Virginia Supreme Court held that “exemplary, punitive, or vindictive damages” may be assessed aft......
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Enright v. Groves
...5 Colo.App. 262, 38 P. 423. Malice may be inferred from the reckless and wanton acts of the party causing the injury. Cohen v. Fox, 26 Colo.App. 55, 141 P. 504. Wanton and disregard of a parties' rights occurs if defendant knew or should have known that the injury ultimately complained of w......
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Bradbury v. Brooks
... ... did pursue with him so long and continuously as to prove ... deliberation, and deliberation with knowledge amounts to ... malice. McAllister v. McAllister, 72 Colo. 28, 30, 209 P ... 788; Biggs v. Biggs, 78 Colo. 310, 311, 241 P. 539. She acted ... in 'utter disregard of consequences.' Cohen v. Fox, ... 26 Colo.App. 55, 58, 141 P. 504, 505. Therefore we cannot say ... that the exemplary damages were unjustified ... Plaintiff's ... conduct is attacked, and with reason, but here again the ... evidence is in conflict and the jury has found for her. She ... and her husband ... ...
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Calvat v. Franklin
... ... reasonable exemplary damages.' Counsel for defendants say ... that this section is 'jurisdictional,' and, that ... being so, jurisdiction cannot be conferred upon the court, ... sitting as a trier of facts, to award exemplary damages even ... by consent of the parties. In Cohen v. Fox, 26 ... Colo.App. 55, at page 57, 141 P. 504, 505, our Court of ... Appeals, in commenting upon this section, said that malice ... 'may be found by the jury or the court from the reckless ... and wanton acts of the injuring party.' This would ... indicate that, in the view of our [90 ... ...