Denver Consol. Tramway Co. v. Riley

• Decision Date: 11 December 1899
• Citation: 59 P. 476,14 Colo.App. 132
• Parties: DENVER CONSOL. TRAMWAY CO. v. RILEY.
• Court: Colorado Court of Appeals

59 P. 476

14 Colo.App. 132

DENVER CONSOL. TRAMWAY CO. v. RILEY.

Court of Appeals of Colorado

December 11, 1899

Appeal from district court, Arapahoe county.

Action by Sylvanus A. Riley against the Denver Consolidated Tramway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A.M. Stevenson and Daniel Prescott, for appellant.

A.J Rising and B.M. Malone for appellee.

THOMSON, J.

The appellee sued the appellant for damages alleged to have been sustained by him in consequence of injuries received by his wife, Ada S. Riley, through the negligence of the appellant. The damages consisted, as stated, in the loss by the plaintiff of the services, companionship, and society of his wife, the expenditure by him of a sum of money, amounting to $6,500, in taking care of her, and the forced abandonment by him of his business. The principal averments of the complaint were denied by the answer. The defendant also set forth the pleadings in an action theretofore brought by Ada S Riley to recover damages for the same injuries mentioned in this complaint, averring that in her suit she recovered judgment for $3,250, and that, while an appeal from that judgment was pending, the controversy was settled by the defendant paying to this plaintiff and the plaintiff in that suit $2,700 in full satisfaction of all demands of either or both of them against the defendant. The replication admitted the rendition of the judgment in that action, the appeal, and the settlement, but denied that the money was paid in satisfaction of any demand of this plaintiff against the defendant. After the replication was filed, the defendant moved the court for leave to amend its answer, so as to make it allege that the suit of Ada S. Riley was brought for and on behalf of herself and the plaintiff herein, and with his knowledge, consent, approval, and assistance. The motion was denied, on the ground, among others, that the answer so amended would tender no issue which that pleading, as it was constructed, did not already tender. It is contended that this ruling was erroneous. We do not find it necessary to decide whether the amendment ought to have been allowed or not, because no proof offered by the defendant was rejected on account of the absence from the answer of the proposed allegation. For the reason that the decision resulted in no injury to the defendant, it would not, even if it might otherwise be adjudged erroneous, constitute a valid ground for a reversal of the judgment.

It is contended for the defense that a portion of the plaintiff's cause of action was litigated in the suit brought by his wife, and was passed upon in that suit; that her action was brought by the authority of the plaintiff that, with full knowledge that a recovery was sought upon claims which belonged to him, he assisted her in its prosecution; that he is, therefore, concluded by her judgment; and, because a cause of action cannot be divided and the different parts made the subject of separate actions, as her recovery embraced at least a portion of his demand, that judgment is an effectual bar to this suit. What the issues were in that case and what they are in this must be determined from the pleadings. An examination of the plaintiff's complaint shows that he seeks a recovery for the loss of the services, companionship, and society of his wife, and for moneys which he was compelled to expend in taking care of her. The complaint of Ada S. Riley, after stating the circumstances of the accident, proceeded as follows: "That, in consequence and by reason of her being so as aforesaid thrown upon the ground, plaintiff suffered severe and permanent injury and great pain and anguish, and became sick, sore, lame, and permanently disabled; that she has been sick and disabled ever since said injury, and unable to perform any labor since said injury; that she has expended large sums of money for medicine in attempting a cure for said injuries; that by reason of said careless and negligent conduct upon the part of said defendant she has been injured in the sum of $20,000." Now, it is said that one of the elements of the damage for which she sued was her inability to perform labor, that one of the elements of the damage alleged by him was the loss of her services as a consequence of her inability to perform labor, and that the two complaints therefore embraced the same claim. It is also said that her statement of the expenditure of money necessitated by the injury, and his statement of the expenditure of money necessitated by the injury, covered, to some extent at least, the same ground, and that to such extent the two complaints set forth the same cause of action. We must disagree with the learned counsel in their construction of the pleadings. We do not think the disability of Mrs. Riley was alleged in her complaint as a distinct ground of damage, or that she sought to recover for any loss sustained by reason of her disability. In connection with the fact and nature of the injury, it was entirely proper to show its severity; and we know of no better method of doing that than by a statement of its after-effects. Certainly an injury by which one is disabled is more serious than one by which he is not disabled, and the disability which results is an element of the damage sustained, without any reference at all to the pecuniary loss it may entail. The statement of Mrs. Riley of her disability, and her inability to perform labor, considered in connection with what precedes and what follows it, is a statement merely of matter of aggravation, and was not inserted as being in itself a cause of action. The same observations are, we think, applicable to her allegation that she expended large sums of money in attempting a cure of her injury. If the purpose of the suit was to recover back money which she had paid out, this allegation should have been differently framed. A complaint asking judgment for money expended, but not showing the amount which had been paid, would not be good. In the averment of the expenditure of money for the purpose of a cure, without more, the pleader must have had some other object in view than a recovery of the money expended. The statement is preceded by an allegation of the disability which followed the injury, and was, as we think, inserted for the same purpose, namely, to show the extent of the injury. The two averments amount only to a statement that the injury was so severe that it rendered the plaintiff unable to perform labor, and necessitated the expenditure of large sums for medicine. See Fuller v. Railroad Co., 21 Conn. 557. Basing our judgment on the pleadings alone, we do not think that this plaintiff's cause of action embraced any matter which was involved in the suit instituted by his wife.

The defendant, over the plaintiff's objection, introduced the record in Ada S. Riley's suit. Afterwards the plaintiff moved to strike it out for the same reasons on which his objection to its introduction was based, namely, that it contained nothing which tended in any degree to...