Klammshell v. Berg
| Decision Date | 13 May 1968 |
| Docket Number | No. 22029,22029 |
| Citation | 441 P.2d 10 |
| Parties | KLAMM SHELL and Richard Klamm, Plaintiffs in Error, v. Arlene BERG, aka Arlene LaLonica, aka Arlene Algien, Defendant in Error. |
| Court | Colorado Supreme Court |
Seavy & Seavy, Pueblo, for plaintiffs in error.
Fugate & Mitchem, William E. Kenworthy, Denver, for defendant in error.
This is a personal injury case arising from an alleged assault and battery committed by Richard Klamm, the owner of the Klamm Shell, a tavern in the City of Pueblo, against the person of Arlene Berg, who was employed as a waitress and barmaid at the Klamm Shell. The plaintiffs in error, Klamm Shell and Richard Klamm, will be referred to herein in the singular, as the defendant.
The case was tried to a jury which returned a verdict for the plaintiff Arlene Berg and assessed her damages in the amount of $10,000. From a judgment in this amount, the defendant brings this writ of error on the sole issue of whether the one year statute of limitations barred recovery on the assault and battery claim of the plaintiff, Arlene Berg.
In reply to the defendant's answer setting up the statute of limitations as a defense, the plaintiff averred that the defendant was estopped to rely on the statute as a defense because the plaintiff, as the result of her injuries from the assault, had been rendered insane and she was therefore prevented from filing the action within one year.
The alleged assault and battery occurred on February 14, 1954, however, the action was not commenced until late April 1955. A second alleged assault and battery by the defendant Richard Klamm on the person of the plaintiff took place on August 11, 1954, however, as claimed by the defendant, the evidence failed to show any compensable injuries suffered by the plaintiff as a result of the August 11, 1954 incident. For the purpose of this opinion, no critical significance will be given to the second alleged assault and battery. The evidence reveals serious injuries to the plaintiff requiring hospitalization and surgery as a result of the February 14, 1954 occurrence. It was also shown that the plaintiff became mentally incapacitated as a result of her injuries; that this condition commenced approximately in June 1954 and continued through February 14, 1955 and to at least April 20, 1955.
Premised upon the above evidence, the trial court gave Instruction No. 12B to the jury:
'You are instructed that the defendant's defense, based upon the one year statute of limitations, will be overcome if you find from the evidence that the plaintiff was not mentally competent to manage her affairs on February 14, 1955, and that such disability continued to at least April 20, 1955.
If you so find, then you may give full consideration to plaintiff's charges involving the alleged assault of February 14, 1954.'
The one year statute of limitations referred to in Instruction No. 12B is C.R.S. '53, 87--1--2 which in pertinent part provides:
'All actions for assault and battery * * * shall be commenced within one year after the cause of action shall accrue, and not afterwards.'
The only statutory exception to the application of the foregoing statute of limitations is C.R.S. '53, 87--1--19, which in part provides:
'Persons under disability.--If any person entitled to bring any action mentioned in this article, is * * * insane * * *, At the time when the cause of action accrues, such person may bring said action, within the time in this article respectively limited, after the disability is removed.' (Emphasis added.)
A brief re sume of the plaintiff's evidence of the assault and battery--obviously believed by the jury--and of her injuries, medical treatment and mental incapacity, is necessary for a full understanding of the premise upon which the trial court determined that an exception to the operation of the statute of limitations existed. Obviously, such an exception can only be found by the application of equitable principles, since our statutory law does not include such an exception.
The plaintiff while employed at the Klamm Shell tavern on February 14, 1954 was struck by the defendant, who at the time was drunk and otherwise abusive toward the plaintiff. As a result of the striking by the defendant, the plaintiff fell to the floor and struck her head against a beer cooler behind the bar. The fall and blow to the head rendered the plaintiff unconscious for an undetermined period of time. She later recovered sufficiently to be able to take a taxi to the home of a friend. Because of severe headaches, dizziness, and visual difficulties, she was hospitalized first in Pueblo and thereafter in Denver. It was determined that she had sustained a subgaleal hematoma. Surgery which was described as a craniotomy was performed and later she was subjected to another operation for removal of the bone flap caused by the craniotomy. After being released from the Denver hospital, the plaintiff continued to suffer from severe headaches. Considerable amounts of medicine were prescribed and she underwent a number of treatments and examinations. The plaintiff's condition improved to a point which enabled her to return to the Klamm Shell tavern where she was reinstated as an employee on a short hour basis just prior to August 11, 1954. On this date, the defendant assaulted her again by kicking from beneath her a small stool on which she was standing. This also caused unconsciousness.
Medical testimony indicated that as a result of the brain damage which the plaintiff suffered as a consequence of the assault and battery on February 14, 1954, she became insane and mentally incompetent in June 1954. In October 1956, she was committed as a mental incompetent to the State Hospital at Pueblo where she remained for about three...
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People v. Wiedemer
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...Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Groseth v. Ness, 421 P.2d 624 (Alaska 1966); Klamm Shell v. Berg, 165 Colo. 540, 441 P.2d 10 (1968); Lyden v. Goldberg, 260 Or. 301, 490 P.2d 181 (1971); Gould v. Bird & Sons, Inc., 5 Wash.App. 59, 485 P.2d 458 Since this mat......
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...that such statutes "should not be construed to defeat justice." Rosane v. Senger, supra, 149 P.2d at 375. See also: Klamm Shell v. Berg, 165 Colo. 540, 441 P.2d 10 (1968). The Rosane case was followed in Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1975). Both the Rosane and Davis opini......
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