Cox v. Pearl Inv. Co.
| Decision Date | 03 February 1969 |
| Docket Number | No. 22220,22220 |
| Citation | 450 P.2d 60,168 Colo. 67 |
| Parties | Willard C. COX and Audrey M. Cox, Plaintiffs in Error, v. PEARL INVESTMENT COMPANY, Defendant in Error. |
| Court | Colorado Supreme Court |
Kayne & Watson, Boulder, for plaintiffs in error.
January, Gilchrist, Blunk & Johnson, George E. Johnson, Denver, for defendant in error.
This is a negligence case which terminated in the trial court with a summary judgment in favor of the defendant on a showing that a purported release had been executed by the plaintiffs in favor of a joint tort-feasor. The common law rule of law that the release of one tort-feasor releases all others who may have liability was applied by the trial court.
As plaintiffs in the trial court, Mr. and Mrs. Cox sought recovery of damages for injuries which Mrs. Cox sustained when she fell on property owned by the defendant Pearl Investment Company. The plaintiffs' complaint acknowledges that Goodwill Industries was a tenant of the defendant. However, it alleges in the alternative that the location of the fall was and was not part of the premises leased by the defendant to Goodwill Industries. In either event, the complaint charges only the defendant with negligence. When the summary judgment motion was considered by the trial court, it was shown that the tenant, Goodwill Industries, had previously paid the plaintiffs $2500 in consideration of the plaintiffs' execution of a document entitled 'Covenant Not to Proceed with Suit.'
The only affirmative defenses contained in the defendant's answer were contributory negligence and assumption of risk. After the answer was filed, defendant moved for summary judgment under R.C.P.Colo. 56 on the ground that the plaintiffs had given a release to Goodwill Industries which also released their claim against the defendant as a joint tort-feasor.
The defendant's summary judgment motion was granted by the trial court and was premised on the finding that:
'The release of Goodwill Industries operates as a release of all tort-feasors, including the defendant herein, Pearl Investment Company.'
The plaintiffs urge reversal on two grounds: they first contend that since the affirmative defense of release was not pleaded in the answer as required by R.C.P.Colo. 8(c), it was thereby waived by the defendant and that the defendant could not thereafter assert release as a ground for summary judgment. This assignment of error is without merit. If the summary judgment motion had not been granted and had the defendant wished to persist in asserting the defense of release, the trial court would have been required to permit defendant to amend its answer to include this defense. As this record is postured, the inclusion of the affirmative defense of release in the summary judgment motion is treated as being incorporated in the defendant's answer for the purpose of technical compliance with R.C.P.Colo. 8(c).
The plaintiffs have not been prejudiced in any way because the affirmative defense of release was not included in the defendant's answer. Furthermore, by arguing the merits of defendant's motion for summary judgment without raising this objection in the trial court as to the manner in which this affirmative defense of release was asserted, the plaintiffs have effectively waived any objection they may have had to this procedure. Kepley v. People ex rel. Everson, 76 Colo. 233, 230 P. 804; see also Dow v. Shoe Corporation of America, 7 Cir., 276 F.2d 165. Also, our review of this record indicates that the plaintiffs did not at any time raise this objection in the trial court nor move for a reconsideration of the trial court's summary judgment on the ground that the defendant could not initially raise the affirmative defense of release by its motion for summary judgment. Therefore, even if this assignment of error had any substance, it would not be subject to review by this court. It is a basic principle of appellate procedure firmly adhered to by this court that unless the trial court has been given an opportunity to correct an alleged error, it will not be considered on review, unless it involves a plain error which deprives a litigant of fundamental rights. Cacic v. Cacic, Colo., 432 P.2d 768; Rivera v. Queree, 145 Colo. 146, 358 P.2d 40; Horlbeck v. Walther, 133 Colo. 19, 291 P.2d 688; McMullin v. Magnuson, 102 Colo. 230, 78 P.2d 964; Posig v. Zelish, 100 Colo. 253, 67 P.2d 70.
The second assignment of error is that the summary judgment motion of the defendant should not have been granted because a genuine issue on material fact remained unresolved. Plaintiffs claim there was nothing before the trial court to show that Goodwill Industries was a joint tort-feasor with the defendant. R.C.P.Colo. 56 provides that a summary judgment may be rendered only if the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact. Unless the joint tort-feasor relationship between Goodwill Industries and the defendant was shown to have existed, there was no basis upon which the trial court could rule that the purported release was effective as a bar to the plaintiffs' action against the defendant. This is the plaintiffs' contention and we agree that the joint tort-feasor relationship is a pivotal issue here. However, we do not agree with the claim of the plaintiffs that this relationship was not sufficiently shown for the purpose of this summary judgment motion. By not answering the defendant's request for admissions, the relevant subject matters of these requests were deemed admitted by the plaintiffs. R.C.P.Colo. 36. For the purpose of this summary judgment motion, it was therefore admitted that plaintiffs had made a claim for damages resulting from the fall against both Goodwill Industries and the defendant and that thereafter, the plaintiffs received payment of $2500 from Goodwill Industries in exchange for their execution of a document in favor of Goodwill Industries entitled 'Covenant Not to Proceed with Suit.' This, in our view, constitutes an adequate showing of the joint tort-feasor relationship for the purpose of this summary judgment motion.
The plaintiffs' second assignment of error, however, does bring into focus another important issue concerning the legal effect to be given to the 'Covenant Not to Proceed with Suit' involved here. The trial court denominated it a release and, without ascribing any dignity to the expressed words that the...
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