DeCaire v. Public Service Co.

• Decision Date: 18 January 1971
• Docket Number: No. 22904,22904
• Citation: 173 Colo. 402,479 P.2d 964
• Parties: Gay R. DeCAIRE and Richard K. DeCaire, each individually, and as parents of Tracey DeCaire, Deceased, Richard L. DeCaire, and Karen DeCaire, by their mother and next friend, Gay R. DeCaire, Plaintiffs in Error, v. PUBLIC SERVICE COMPANY of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 964

479 P.2d 964

173 Colo. 402

Gay R. DeCAIRE and Richard K. DeCaire, each individually and as parents of Tracey DeCaire, Deceased, Richard L DeCaire, and Karen DeCaire, by their mother and next friend Gay R. DeCaire, Plaintiffs in Error, v. PUBLIC SERVICE COMPANY of Colorado, Defendant in Error.

No. 22904.

Supreme Court of Colorado, En Banc.

Jan. 18, 1971.

Yegge, Hall, Treece & Evans, Charles W. Johnson, Denver, for plaintiffs in error.

Lee, Bryans, Kelly & Stansfield, Richard W. Bryans, Alfred J. Hamburg, Denver, for defendant in error.

KELLEY, Justice.

This litigation arose out of personal injuries suffered by Mr. and Mrs. DeCaire and two of their children and the death of the third child resulting from carbon monoxide poisoning caused by a defective furnace and heating system. The plaintiffs recovered jury verdicts against Public Service Company in the aggregate amount of $6,650, allegedly caused by the negligent inspections of the heating system.

The trial court granted Public Service Company's motion for judgment non obstante veredicto. C.R.C.P. 50(b). As to the claim of the parents for the death of Tracey, the verdict was set aside on the ground that,

'* * * the action is barred by 41--1--4 CRS 1963 which provides that an action for wrongful death shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought.'

In its order the trial court noted that,

'* * * the last act of Public Service Company relating to leaking of gas occurred on December 16, 1962, that the death of the child, Tracey, occurred October 30, 1963, and that the within action was filed on October 22, 1965, some two years and ten months after the alleged negligence.'

The verdicts in favor of Mr. and Mrs. DeCaire and the surviving children were set aside on the ground that the Public Service Company had no duty to the plaintiffs which it had breached. The gist of the issue is found in these words of the court:

'* * * If the Public Service Company was negligent, it was negligent as to the Co-Defendants Shattuck.'

The Shattucks owned the house for the whole period during which the three Public Service Company service calls were made. They sold the house to Mr. and Mrs. DeCaire in June or July of 1963. The accident which resulted in the death and the injuries suffered by the four DeCaires occurred in October of 1963.

The plaintiffs filed a motion to set aside the judgment non obstante veredicto, but did not file a motion for new trial. The court denied plaintiffs' motion. The Public Service Company filed a motion in this court to dismiss the writ of error on the ground that no motion for new trial had been filed after the entry of the judgment notwithstanding the verdicts. We denied the motion. Public Service Company has not abandoned this position, but has renewed its motion in its brief, still urging the dismissal of the writ of error.

The plaintiffs by not filing a motion for new trial in effect elected to stand upon the record as made. Also, the Public Service Company by not filing a motion for new trial has not challenged the verdict of the jury. This limits our review to the single question of whether the trial court erred in granting the motion for judgment notwithstanding the verdicts. Noland v. Colorado School of Trades, Inc., 153 Colo. 357, 386 P.2d 358.

Under this posture of the case, we are not confronted with the negligence issue. Consequently, our review is limited to two questions: (1) Whether the claim based on the death of Tracey was barred by the statute of limitations; and (2) Whether Public Service Company owed a duty to the plaintiffs in view of the fact that the service calls were made at the request of the Shattucks and were performed prior to the sale of the inspected premises by the Shattucks to the plaintiffs.

We hold that the statute of limitations had not run on the death claim. Also, under the circumstances of this case, we conclude that the Public Service Company owed a duty to the DeCaires upon which liability could be predicated.

I.--STATUTE OF LIMITATIONS

C.R.S. 1963, 41--1--4, provides:

'All actions provided for by sections 41--1--1 to 41--1--3' (wrongful death) 'shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought.'

As indicated above, the trial court held that the statute barred recovery for the death of Tracey because the last act of Public Service Company relating to gas leakage occurred on December 16, 1962, the lethal leakage occurred on October 30, 1963, and this action was commenced on October 22, 1965, two years and ten months after the alleged negligence.

The action was commenced within two years of the date of the fatal injury. No claim or right of action existed by virtue of the negligent act alone. It arose when the negligence Resulted in the injury which caused the death. Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64; Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517.

Injury or damage to the person complaining is an essential element of Actionable negligence. The plaintiffs could not have filed their suit predicated solely on defendant's negligent act. There...