Lewis v. Buckskin Joe's, Inc.
| Decision Date | 30 November 1964 |
| Docket Number | No. 20482,20482 |
| Citation | 396 P.2d 933,156 Colo. 46 |
| Parties | Raymond and Janice LEWIS, and Raymond and Janice Lewis as natural guardians and next friends of Cindy Lewis and Steve Lewis, Minors, and Robert Lewis and Georgia Lewis as natural guardians and next friends of Judy Lewis, Bobby Lewis and Linda Lewis, Minors, Plaintiffs in Error, v. BUCKSKIN JOE'S, INC., a corporation, Dave Ashton and Ed Talbert, Defendants in Error. |
| Court | Colorado Supreme Court |
Stinemeyer & Stinemeyer, Canon City, for plaintiffs in error.
John Stump Witcher, Canon City, for defendant in error Buckskin Joe's, Inc.
Phelps, Fonda, Hays & Wills, Pueblo, for defendants in error Ashton and Talbert.
On February 23, 1960, Juanita N. Grinfield and Walter C. Grinfield (wife and husband), and Michael Grinfield, a minor, by Walter C. Grinfield, his father and next of friend, commenced an action, No. 8233, by filing a complaint in the District Court of Fremont County, Colorado. Named as defendants were Buckskin Joe's, Inc., a Colorado corporation; Dave Ashton, an individual, and Ed Talbert, an individual.
In this complaint there are four separately stated claims for relief.
Juanita seeks to recover $50,000.00 compensatory and $25,000.00 exemplary damages for personal injuries, medical expenses, etc., caused by the alleged negligence of the defendants.
Walter, in a first claim for relief, seeks to recover $1,000.00 compensatory and $500.00 exemplary damages for personal injuries, medical expenses, etc., caused by the alleged negligence of the defendants. In a second claim for relief he seeks to recover $10,000.00 compensatory and $5,000.00 exemplary damages for loss of consortium and marital rights occasioned by the injuries suffered by his wife, Juanita.
Michael seeks to recover $1,000.00 compensatory and $500.00 exemplary damages for personal injuries, medical expense, etc., caused by the alleged negligence of the defendants.
Each plaintiff alleged the same acts of negligence. They charged:
1. That the accident and attendant injuries would not have occurred except for the negligence of the defendants
'* * * in the operation and driving of, or the use of defective parts in, said stagecoach.'
2. '* * * the * * * stagecoach was a dangerous instrumentality, * * * said stagecoach was defective in the design or manufacture, or materials used, or the testing and maintenance of certain parts thereof, more specifically as related to a certain part known as a 'singletree' thereof, which broke, contributing to the said accident; and said Defendants * * * knew, or should have known of the defective condition of said part * * *.' (Emphasis supplied.)
3. 'The negligence of Defendants * * * in the manner of driving of said vehicle around an unbanked turn, was of a nature amounting to wilful and wanton negligence * * *.'
On September 1, 1960, the defendants Ashton and Talbert filed their answer, which contains the following:
1. 'Defendants deny each and every allegation set forth in the Complaint and Bill of Particulars.'
2. The proximate cause of plaintiffs' injuries, if any, was plaintiffs' negligence.
3. The proximate cause of plaintiffs' injuries, if any, was substantially and materially contributed to by plaintiffs' negligence.
4. The plaintiffs knew of the risks involved and assumed the same.
5. The proximate cause of plaintiffs' injuries, if any, was the sole negligence of the defendant, Buckskin Joe's, Inc.
6. The proximate cause of plaintiff's injuries, if any, was the sole negligence of persons not parties to this action and over whom defendants had no control.
7. The proximate cause of plaintiffs' injuries, if, any, was an unavoidable accident.
8. The plaintiffs' complaint fails to state a claim upon which relief can be granted.
On September 27, 1960, Buckskin Joe's, Inc., filed its answer, wherein it set forth seven defenses to each of plaintiffs' four separate claims for relief. In substance, the answer sets up the following defenses:
1. The complaint does not state a claim against the defendant upon which relief can be granted.
2. For a second defense, admits part, denies part, or pleads lack of information of the truth of the allegations of plaintiffs' complaint. It denies all allegations of negligence on its part.
3. Contributory negligence.
4. Unavoidable accident.
5. Assumption of risk.
6. The proximate cause of the accident was the negligence of the defendants Ashton and Talbert.
7. The proximate cause of the accident was the negligence of persons who are not parties to the action and over whom the defendant had no control.
On May 26, 1960, Robert and Georgia Lewis (husband and wife), and Bobby Lewis, age two years, Judy Lewis, age three years, and Linda Lewis, age four years (children of Robert and Georgia), commenced an action, No. 8274, by filing a complaint in the District Court. In their complaint they named as defendants, Buckskin Joe's, Inc., Dave Ashton and Ed Talbert.
These plaintiffs in their complaint set forth only one 'cause of action.' Each complains of injuries suffered at the same time and place as alleged by the Grinfields; however, they do not rely upon or charge the defendants with the same acts of negligence which the Grinfields rely upon and charge. They base their case upon different grounds, i. e.:
(1) They allege they were not directed by defendants where to sit in said stagecoach, and that:
'* * * the passengers were not properly seated in said stagecoach so as to properly proportion the weight so as to insure said stagecoach to remain upright and safe.'
(2) 'That said stagecoach was operated * * * at such speed * * * as to cause same to upset.'
(3) 'That the route established * * * and traveled * * * was neither safe nor proper * * * and its turns were not properly laid out for safe operation of a stagecoach in the manner and speed at which defendants so operated said stagecoach.'
Plaintiffs Lewis, unlike the Grinfields, make no mention of any defective 'singletree * * * which broke.'
In their complaint they set forth injuries suffered by each plaintiff. The most serious injuries were alleged to have been suffered by Linda, who, it is said:
'* * * suffered a supracondylar fracture of the left humerus, shock, pain and mental anguish both at the time of injury and since, and the permanent results of the fracture above alleged are a crippled and deformed left arm from which there is no operative technique for relief, besides such deformity she suffers a 15% loss of the left arm at the elbow as permanent disability, and suffers in addition to pain and discomfort now and permanently, embarrassment and extreme mental anguish as a result of such deformity and disability, and will suffer such for the rest of her natural life expectancy, which is 60.48 years.' (Proof of the foregoing is uncontradicted.)
The plaintiffs seek compensatory damages as follows:
1. Robert Lewis $ 5,950.00
2. Georgia Lewis 5,500.00
3. Bobby Lewis (age two) 250.00
4. Judy Lewis (age three) 250.00
5. Linda Lewis (age four) 36,000.00
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Total...... $47,950.00
Unlike the Grinfields, none of the plaintiffs Lewis charged the defendants with wilful or wanton conduct; none claimed exemplary damages.
On October 3, 1960, Ashton and Talbert filed their answer to this complaint--the identical answer they filed to the Grinfield Complaint.
On October 10, 1960, the plaintiffs filed a so-called reply to defendants' answer. Robert and Georgia, therein, moved to strike from defendants' answer the first defense (general denial); second defense (sole negligence of plaintiffs as cause of injury); third defense (contributory negligence), and assign as reason therefor that plaintiffs were
'* * * paying passenger[s], of a carrier or a vehicle which was owned and operated at all times and under the exclusive control and supervision of the defendants or a combination of one or more of them.'
Bobby, Judy and Linda, in their reply, moved to strike from defendants' answer the above mentioned first, second and third defenses and, in addition, the fourth defense (assumption of risk), fifth defense (sole negligence of plaintiffs), sixth defense (sole negligence of Buckskin Joe's, Inc.), seventh defense (sole negligence of persons not parties to action), for the reason that:
'* * * said plaintiffs are minors and of tender age, and have neither the legal responsibility for committing negligence and for assuming the risk, further that they were paying passengers in a vehicle or carrier, which was under the sole, exclusive operation and control of the management of the defendants, or one or more, or a combination of them.'
On January 9, 1961, Buckskin Joe's, Inc., filed its answer to plaintiffs' complaint and admitted or denied the allegations of the complaint, and as further defenses set up contributory negligence, unavoidable accident, assumption of risk, that the cause of the accident and injuries was the negligence of Ashton and Talbert and the negligence of persons not parties and over whom the defendant had no control.
On May 26, 1960, Raymond and Janice Lewis (husband and wife) and Cindy Lewis, age three years, and Steven Lewis, age nine months (children of Raymond and Janice), commenced an action, No. 8273, by filing a complaint in the District Court. They named as defendants Buckskin Joe's, Inc., and Dave Ashton and Ed Talbert. The allegations in this complaint are identical with those in the other Lewis complaint (Action No. 8274), except as to the names of the plaintiffs, the nature and extent of their injuries and the amounts sought as damages--the total amount sought being $5,207.25.
Answers filed by the defendants were identical with the answers filed in the other Lewis case (Action No. 8273).
The plaintiffs filed no reply in this case.
On January 10, 1961, Ashton and Talbert filed ...
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