DeLeon v. Tompkins

• Decision Date: 01 December 1977
• Docket Number: No. 76-775,76-775
• Citation: 40 Colo.App. 241,576 P.2d 563
• Parties: Marie DeLEON and Linda DeLeon, Plaintiffs-Appellants, v. Jeffrey I. TOMPKINS, as Special Administrator of the Estate of Jose Ruperto del Valle, Deceased, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 563

576 P.2d 563

40 Colo.App. 241

Marie DeLEON and Linda DeLeon, Plaintiffs-Appellants, v. Jeffrey I. TOMPKINS, as Special Administrator of the Estate of Jose Ruperto del Valle, Deceased, Defendant-Appellee.

No. 76-775.

Colorado Court of Appeals, Div. III.

Dec. 1, 1977.

Rehearing Denied Jan. 12, 1978.

Certiorari Granted March 20, 1978.

James Robert Barash, Colorado Springs, for plaintiffs-appellants.

Rector & Retherford, J. Stephen Mullen, Colorado Springs, for defendant-appellee.

STERNBERG, Judge.

In this appeal, by an agreed statement pursuant to C.A.R. 10(d), the parties present one issue: Whether, in a personal injury action against a decedent's administrator, the Dead Man's Statute prohibits an injured party from testifying, over the objection of the administrator, as to medical care received and pain and suffering endured by the injured party prior to the time of the death of the adverse party. The trial court interpreted the statute as prohibiting such testimony. We disagree and therefore reverse and remand for a new trial on the issue of damages.

Marie and Linda DeLeon, plaintiffs, suffered bodily injury on August 22, 1972, when their automobile was struck from the rear by a vehicle owned and operated by Jose Ruperto del Valle. Mr. del Valle died of an independent cause on September 19, 1973. The plaintiffs then sued the administrator of the del Valle estate. At trial the plaintiffs attempted to testify about their pain and suffering and medical care incurred prior to the death of Mr. del Valle. As the Dead Man's Statute allows testimony relating to events which occurred following the death of the defendant's decedent, the trial court allowed testimony as to events after death, but sustained defendant's objections to testimony by plaintiffs as to matters arising prior to death.

The jury awarded damages based upon the limited testimony, and plaintiffs claim on appeal that the damages awarded them were inadequate and that the amount would have been greater had the Dead Man's Statute not been applied to prevent the admission of their testimony.

The Dead Man's Statute, § 13-90-102, C.R.S.1973, states in pertinent part that:

"No party to any civil action, suit, or proceeding, or person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf by virtue of section 13-90-101, when any adverse party sues or defends as . . . the executor or administrator . . . of any deceased person . . . unless when called as a witness by such adverse party so suing or defending, and except in the following cases:

(a) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person."

The policy underlying the Dead Man's Statute is to guard against perjury by prohibiting living interested witnesses from testifying when the deceased cannot refute the testimony and thus to protect the decedent's estate against unjust claims. As stated in Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888), "the object and spirit of . . . the statute . . . is to place the parties on an equality," and "to exclude the testimony of a party when the opposite party is deceased, and cannot give his testimony upon the matters in controversy . . . ." In Levy the court mentioned also that the statute should be liberally construed because the spirit, rather than the technical letter, should govern in its application. In Prewitt v. Lambert, 19 Colo. 7, 34 P. 684 (1893), the court commented that the rule must be judiciously applied, "or it may work great wrong and injury." See also Risbry v. Swan, 124 Colo. 567, 239 P.2d 600 (1951); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942); National State Bank v. Brayman, 30 Colo.App. 554, 497 P.2d 710 (1972), rev'd on other grounds, 180 Colo. 304, 505 P.2d 11 (1973). See generally, Comment, The Colorado Dead Man's Statute, 43 Den.L.J. 349 (1966).

Contrary to the administrator's argument here, a court is not indulging in judicial legislation when it construes a statute so as to avoid an absurd result. As pointed out by Justice Erickson in Board of County Commissioners v. City & County of Denver, Colo., 571 P.2d 1094 (1977):

"(L)egislation rarely anticipates all the vagaries of a situation; unforeseen cases cause inconsistencies and ambiguities to arise even under the most carefully drawn statutes. Judicial construction and interpretation is often necessary."

Also, as stated in People v. Silvola, Colo., 547 P.2d 1283 (1976):

"(W)here a statute would operate unjustly, or absurd consequences would result from a literal interpretation of terms and words used that would be contrary to its obvious and manifest purposes, the intention of the framers will prevail over such a literal interpretation."

Moreover, in examining legislation, "one cannot assume that an unjust or oppressive result was contemplated by the legislature." Hofer v. Polly Little Realtors, Inc., --- Colo.App. ---, 543 P.2d 114 (1975). In this regard, the General Assembly has declared its intentions in § 2-4-201, C.R.S.1973, as follows:

"(1) In enacting a statute, it is presumed that:

(c) A just and reasonable result is intended."

Here, the purposes underlying the statute were not served by the exclusion of the plaintiffs' testimony, but such exclusion did unnecessarily obstruct the presentation of plaintiffs' case. The DeLeons did not seek to testify as to the facts of the accident itself; they sought only to testify as to the pain and suffering endured and medical care received after the date of the accident but prior to del Valle's death. Even if del Valle had been alive at the time of trial, he would not have known anything about those matters, and his testimony would have added nothing of value to the jury's determination of damages. There is no reason to allow testimony of the type involved here by a plaintiff against one class of defendants the living, and to proscribe it against another the dead. To interpret the statute in such a way, for no discernible purpose, would be to make it constitutionally suspect. Cf. Duprey v. Anderson, 184 Colo. 70, 518 P.2d 807 (1974).

In a case similar to the one here, such considerations led the Nevada Supreme Court to declare that, because the appellant's testimony as to her medical bills, pain and suffering and similar matters could not have been contradicted by the decedent of his own knowledge, that testimony was beyond the reasons for passage of the Dead Man's Statute and thus was clearly admissible. Zeigler v. Moore, 75 Nev. 91, 335 P.2d 425 (1959). See also McCormick on Evidence § 65 (E. Cleary 2d ed. 1972); Annot., 80 A.L.R.2d 1296 at 1302.

We follow the construction in Zeigler v. Moore, supra. Because the purpose of the Colorado Dead Man's Statute is not undermined by the admission of testimony which...