Drake v. Hodges

• Decision Date: 18 June 1945
• Docket Number: 15409.
• Parties: DRAKE et al. v. HODGES.
• Court: Colorado Supreme Court

161 P.2d 338

114 Colo. 10

DRAKE et al. v. HODGES.

No. 15409.

Supreme Court of Colorado

June 18, 1945

Rehearing Denied Aug. 10, 1945.

In Department.

Error to District Court, Moffat County; Charles E. Herrick, Judge.

Action by Evie Faye Hodges against Lawrence Drake and another to recover damages for the death of plaintiff's husband in an automobile collision. Verdict and judgment for plaintiff and defendants bring error.

Judgment affirmed.

Enos, Dittman & Morrato, of Denver, J. F. Meador, of Craig, for plaintiffs in error.

Wolvington & Wormwood, of Denver, and Fred A. Videon, of Craig, for defendant in error.

BAKKE, Chief Justice.

Evie Faye Hodges, defendant in error, plaintiff below, brought this action to recover damages for the death of her husband allegedly caused by the negligent operation of a truck driven by Verne Decker, one of the plaintiffs in error, an alleged employee of Drake, the other plaintiff in error, both being defendants below. After certain alleged defenses were stricken and issues joined, trial was to a jury which returned a verdict in favor of the plaintiff in the sum of $5,000, and judgment was entered accordingly. Plaintiffs in error seek reversal of the judgment. We shall refer to the parties as they appeared below, or by name.

The accident, which resulted in the death of Mr. Hodges, occurred twenty-seven miles north of Craig, in Moffat county Colorado, about 5:00 o'clock p.m., July 3, 1941, when the Buick car in which he was riding was struck by a gravel truck owned by Drake and operated by Decker. The state highway department had leased, and was operating, several trucks including the one involved in the collision, and just prior to the accident several of them--the drivers of which had completed their work for the day--were being driven in a southerly direction towards Craig. The men were apparently anxious to arrive at their destination, and there was evidence that the drivers of the Drake truck and another had been racing; that Decker had pulled out of his line of traffic to his left to pass the truck ahead of him; that suddenly the Hodges car appeared over the brow of a hill traveling north, i.e., coming toward Decker; that Decker tried to resume his place in the line of traffic, but, deciding he could not do so, pulled over farther to the left in an attempt to get into the adjacent borrow pit; that in doing so he struck the Buick car, Hodges being instantly killed. There is no doubt that Hodges was proceeding at a rapid rate of speed, but as to whether he was exceeding the speed limit, the evidence was in conflict, and the skid marks from the tires on his auto indicated that he did try to slow his car down sufficiently to avoid the accident.

At the time of his death, Hodges was an employee of a Wyoming Oil Company and was returning to Casper. His widow applied for, and received, compensation under the pertinent Wyoming act. She also had an agreement with the Wyoming Industrial Accident Fund whereby she was to reimburse if from the proceeds of any judgment collected in this suit.

The present action was brought by Mrs. Hodges, the widow, under the Colorado statute concerning damages for death occasioned by negligence. ' 35 C.S.A. c. 50.

Defendants stress three points of their specifications for reversal: 1. Plaintiff, having elected to claim compensation under the Wyoming act, cannot maintain this suit. 2. Hodges was guilty of contributory negligence as a matter of law. 3. Decker was not acting as an employee of Drake at the time of the accident.

1. The general proposition that a person who has a cause of action against a third party tort-feasor for damages for wrongful death or injury does not lose or waive it by exercising another right based on a claim for workman's compensation, is settled beyond dispute in this jurisdiction. King v. O. P. Baur Confectionery Co., 100 Colo. 528, 68 P.2d 909; Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278; Wilson v. Smith, 110 Colo. 68, 130 P.2d 1053; Donley v. Denver & Salt Lake R. R. Co., 111 Colo. 358, 141 P.2d 899. Concededly, this right inures to the plaintiff in this case by virtue of the statute, chapter 50, supra, and under it, during the first year after the accrual of the cause of action, the right to sue is hers to the exclusion of anyone. Hindry v. Holt, 24 Colo. 464, 51 P. 1002, 39 L.R.A. 351, 65 Am.St.Rep. 235.

More specifically with regard to defendants' contention that this action was not brought by the real party in interest or for the benefit of those entitled to share in recovery under the Colorado statute, we believe they are in error. The tort was committed in Colorado and no commonlaw right existed to bring such an action. The sole right is based on the Colorado statute, chapter 50, '35 C.S.A., which gives a right of action to the wife of decedent. Had plaintiff established jurisdiction over defendants and brought suit in a Wyoming court, the action still would have been based upon, and governed by, the Colorado statute and could only have been brought by the widow as therein provided. Walsh v. Boston & M. R. R., 201 Mass. 527, 88 N.E. 12; Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198. Accordingly, the judgment in Colorado would have been res judicata as to any subsequent action in Wyoming.

Assuming the facts to be as alleged in the stricken defenses, plaintiff's husband, the victim of the accident, was employed in the state of Wyoming; plaintiff applied for and, when this action was brought, was receiving compensation from the Wyoming Industrial Accident Fund for his death; if she did not remarry she ultimately would receive $3,500, and, together with the children, would receive a total of more than the $5,000 maximum recovery for which provision is made under our statute. However, only a small part of such compensation had been received at the time of the bringing of the action; its receipt would be in small monthly payments over a term of years and would be contingent upon marriage or death as to whom payable; consequently, unless inhibited by workmen's compensation statutes, the widow was both a proper and a necessary party to the action.

The purpose of workmen's compensation acts is to provide an award of compensation in favor of injured employees, and to protect all workmen save those specifically excluded from their provisions. Sechler v. Pastore, 103 Colo. 139 84 P.2d 61; Consolidated Fast Freight v. Walker, 103 Colo. 347, 85 P.2d 720. They do not concern rights of action by employees against third party tort-feasors, except as to the proper allocation of the amounts recovered under such actions equitably between the employee and the employer. Riss & Co. v. Anderson, 108 Colo. 78, 114 P.2d 278. Our Colorado Workmen's Compensation Act provides that the election to take compensation and the awarding of compensation shall operate as an assignment of any cause of action against such third party tort-feasor to the insurance carrier, but no such provision in the Wyoming act is called to our attention, and in the case at bar, the Wyoming statute unquestionably applies. Colo.S.L. '41, c. 243, § 1; Wyo.S.L. '41, c. 47, § 1. These amendatory...