Lewis v. Oliver
| Decision Date | 14 June 1954 |
| Docket Number | No. 17080,17080 |
| Citation | 271 P.2d 1055 |
| Parties | LEWIS v. OLIVER. |
| Court | Colorado Supreme Court |
John A. McCarthy, Pueblo, for plaintiff in error.
Laurence A. Ardell, Pueblo, for defendant in error.
Grady Hill Lewis, plaintiff in error, rented an automobile from the ABC Auto and Truck Rental Company in Pueblo, Colorado, on the night of May 7, 1951. Beginning about 8:30 o'clock in the evening, he and one Algien drank several glasses of beer at different taverns in Pueblo; about 11:45 p. m. they arrived at Donahue's Tavern where Melvin Oliver and Wanda Harp joined them; Lewis, Oliver and Wanda Harp obtained the keys for the rented automobile from Algein and lift; Algein said he saw them driving away, but did not know who was driving the car. Algein testified that during the entire evening he and Lewis drank nine or ten beers each.
At about 1:00 o'clock a. m. on May 8, the rented automobile was being driven on a highway just outside of the city limits of Pueblo when it left the highway near a curve and struck a power-line pole on a dead-end street; the car was overturned; Wanda Harp was killed, and the Oliver boy seriously injured; Lewis also was injured. The latter two were taken to a hospital, and the Oliver boy died about two hours thereafter.
E. E. Oliver, father of Melvin, filed this action against Lewis and the auto rental company under the guest statute for the death of his son, alleging that Melvin Oliver was the son of plaintiff and one Edna Oliver, and that as a result of the accident and death of Melvin Oliver, plaintiff and the said Edna Oliver suffered the loss of his love, companionship and pecuniary loss, all in the sum of $10,000. Defendants answered, denying the general allegations of the complaint and set up the defenses of contributory negligence, assumption of risk and an unavoidable accident. At the trial there was no evidence of any negligence on the part of the rental company and the court sustained a motion for a directed verdict in its favor. At that time defendant Lewis could not be located and never appeared at the trial. He was served with process on August 25, 1951, while in the hospital. Trial was to a jury, which returned a verdict in plaintiff's favor in the sum of $7,615 on which the judgment here under review was entered. Motion for judgment notwithstanding the verdict and motion for new trial were overruled. In the motion for new trial the errors hereinafter presented were set out. The statute, commonly designated as the guest statute, is section 371, chapter 16, '35 C.S.A. and, so far as is pertinent here, is as follows:
'No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause for damages against such owner or operator for injury, death or loss in case of accident, unless such accident shall have been intentional on the part of such owner or operator or caused by his intoxication, or by negligence consisting of a wilful and wanton disregard of the rights of others. * * *'
For recovery under this statute, at least one of three conditions must be established, namely, intentional accident (if anyone knows what that means), accident caused by intoxication, or by negligence consisting of a wilful and wanton disregard of the rights of others.
In the first cause of action in the amended complaint herein is an allegation of carelessness, negligence and recklessness as the cause of the accident, and that the negligence consisted of a wilful and wanton disregard of the rights of others. In the second cause of action is an allegation that Lewis, defendant, had consumed intoxicating beverages, and that the accident was the result of his intoxication.
Plaintiff in error has set up nine specifications of error, eight of which, as determined from our examination of the record, have merit. These specifications are as follows:
1. Insufficient evidence of intoxication.
2. Misconduct of counsel.
3. Insufficient evidence that intoxication, if any, was proximate cause.
4. Insufficient evidence of wilful and wanton disregard and that same, even if proven, was proximate cause.
5. Verdict based on speculation.
6. Error in allowing evidence of speed because remote to accident.
7. Instruction No. 2. erroneous and prejudicial.
8. Verdict excessive and founded on speculation.
It being abundantly clear that the judgment must be reversed, we consider it unnecessary to discuss all of the specifications,...
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State v. Hafner
...of withdrawing the impression produced on their minds.' White v. State, 444 S.W.2d 921, 922 (Tex.Cr.App.); see also Lewis v. Oliver, 129 Colo. 479, 482, 271 P.2d 1055; State v. Davis, 448 S.W.2d 892, 894 (Mo.); cf. American Bar Association, 'Standards Relating to the Prosecution Function an......
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Stiff v. Holmes
...courts have held ordinary negligence instructions on a host-guest situation are confusing and should not be given. See Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954). But we prefer the rule stated in Rogers v. Southern Pacific, 190 Or. 643, 227 P.2d 979 (1951), where the court '(I)t i......
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Von Lackum v. Allan, 4951.
...the judgment because of the giving of an instruction on simple negligence. See Pettingell v. Moede, Colo., 271 P.2d 1038, and Lewis v. Oliver, Colo., 271 P.2d 1055. In the Pettingell case the court said that if the giving of such an instruction in context with the giving of other instructio......
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Allen v. McLain
...In this connection appellant relies most heavily on two recent Colorado cases, Pettingell v. Moede, Colo., 271 P.2d 1038, and Lewis v. Oliver, Colo., 271 P.2d 1055. Whether any one instruction is prejudicial must be determined by a consideration of all the instructions in their entirety. It......
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THE COLORADO APPELLATE RULES
...197, 460 P.2d 224 (1969). Applied in Brinker v. City of Sterling, 121 Colo. 430, 217 P.2d 613 (1950); Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Bohn v. Bd. of Adjustment, 129 Colo. 539, 271 P.2d 1051 (1954); Am. Nat'l Ban......
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Rule 35 DETERMINATION OF APPEAL.
...197, 460 P.2d 224 (1969). Applied in Brmker v. City of Sterling, 121 Colo. 430, 217 P.2d 613 (1950); Lewis v. Oliver, 129 Colo. 479, 271 P.2d 1055 (1954); Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Bohn v. Bd. of Adjustment, 129 Colo. 539, 271 P.2d 1051 (1954); Am. Nat'l Bank......