Francisco v. Cascade Inv. Co.
| Decision Date | 15 June 1971 |
| Docket Number | No. 70--418,70--418 |
| Citation | 29 Colo.App. 516,486 P.2d 447 |
| Parties | Lewis J. FRANCISCO, Plaintiff-Appellant, v. CASCADE INVESTMENT COMPANY, a Colorado corporation, the City and County of Denver, and Clyde J. Baughar, Defendants, The City and County of Denver, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Brenman, Ciancio, Rossman, Baum & Sobol, Arthur L. Fine, Denver, for plaintiff-appellant.
Max Zall, City Atty., Lloyd K. Shinsato, Asst. City Atty., Denver, for defendant-appellee.
Lewis J. Francisco, plaintiff-appellant, brought this action to recover damages for injuries he allegedly sustained in a fall which occurred when he stepped into a hole in a sidewalk near the intersection of 18th and Market Streets in Denver, Colorado. The defendants in the action were the City and County of Denver, the Cascade Investment Company, owner of the property adjacent to the sidewalk, and Clyde J. Baughar, lessee of the adjacent property. The trial court entered judgment against plaintiff as to all defendants. Plaintiff appeals the judgment in favor of the City, the other defendants not being parties to this appeal.
After he was injured on May 3, 1967, plaintiff, in compliance with the Charter of the City and County of Denver, Article X, Section A 10.10, notified the Mayor of such injury. Neither the timeliness nor the sufficienty of the notice is at issue here. Plaintiff's notice, Exhibit N, was sent to the Mayor by plaintiff's attorney. In response to the notice, an Assistant City Attorney sent a letter, Exhibit M, to plaintiff's attorney in which he acknowledged receipt of the notice, and requested that further correspondence be directed to him. After this exchange of correspondence, the City conducted an investigation of the claim.
After plaintiff filed his complaint, the City answered, and the case was tried to a jury. In presenting his case, the plaintiff offered evidence on the issues of negligence and damages. He then offered in evidence Exhibits M and N to prove that he had given the City notice of his injuries as required by the City Charter. The City objected to the admission of these exhibits on two grounds: (1) that plaintiff had failed to allege in the complaint that notice had been given to the City, and (2) that plaintiff had failed to include Exhibits M and N in the list of exhibits which he filed pursuant to Local Rule 27 of the Denver District Court. When this objection was made, plaintiff moved to amend his complaint to meet the City's objection that notice had not been alleged. The court refused to permit the amendment, and refused to admit the exhibits into evidence.
At the close of plaintiff's evidence, the City moved for a directed verdict, and for a judgment of dismissal. The trial court held that plaintiff's evidence was sufficient to establish a prima facie case of negligence on the part of the City, but the court dismissed the action with prejudice because plaintiff had failed to plead and prove that he had given the requisite notice.
Plaintiff's motion to amend the complaint should have been granted. The provisions of R.C.P.Colo. 15(b), which were invoked by the motion, expressly deal with the situation presented here. R.C.P.Colo. 15(b) provides:
'* * * If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits.'
Our Supreme Court considered the scope and application of this rule in Martin v. Kennell, 169 Colo. 122, 453 P.2d 797. The Court, in holding that the trial court had erred in refusing to permit an amendment, stated:
In the present case, the amendment of plaintiff's complaint should have been permitted, because the presentation of the merits of the action would have been subserved thereby. The City had, in fact, received notice of the claim, and it cannot claim that proof of such fact would prejudice it in maintaining its defense Upon the merits. The granting of the motion would have facilitated a fair trial of the actual issues between these litigants.
The City's argument that the complaint could not be amended because...
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Murphy v. Colorado Aviation, Inc.
...entered under C.R.C.P. 16. See In Re the Estate of Gardner, 31 Colo.App. 361, 505 P.2d 50 (1972); and Francisco v. Cascade Investment Co., 29 Colo.App. 516, 486 P.2d 447 (1971). It is not an abuse of discretion for the trial court to allow a witness who is not endorsed on the pretrial state......
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Jenkins v. Glen and Helen Aircraft, Inc., 77-1009
...may be made to cure defects in pleading jurisdiction. Johnson v. Johnson, 30 Colo. 402, 70 P. 692 (1902); Francisco v. Cascade Investment Co., 29 Colo.App. 516, 486 P.2d 447 (1971). But an amendment to justify long-arm jurisdiction must be based on facts existing at the time the complaint w......
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Cline v. Rabson, 91CA0844
...allegation of fact upon which the court's jurisdiction depends can be cured or supplied by amendment. Francisco v. Cascade Investment Co., 29 Colo.App. 516, 486 P.2d 447 (Colo.App.1971); See also, Stuart v. Frederick R. Ross Investment Co., 773 P.2d 1107 In contrast, regardless of the suffi......
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...case encompassing additional issues, it may be error to refuse to allow an amendment to the pleadings. See Francisco v. Cascade Investment Co., 29 Colo.App. 516, 486 P.2d 447 (1971). Ordinarily, a motion under C.R.C.P. 15(b) to amend the pleadings to conform to the proof is made at the clos......