Mangus v. Miller, 73--457

• Decision Date: 19 February 1975
• Docket Number: No. 73--457,73--457
• Citation: 535 P.2d 219,35 Colo.App. 335
• Parties: H. Wayne MANGUS, Plaintiff-Appellant, v. Victor MILLER, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 219

535 P.2d 219

35 Colo.App. 335

H. Wayne MANGUS, Plaintiff-Appellant, v. Victor MILLER, Defendant-Appellee.

No. 73--457.

Colorado Court of Appeals, Div. II.

Feb. 19, 1975.

Rehearing Denied March 25, 1975.

Certiorari Granted June 2, 1975.

William E. Kenworthy, Denver, for plaintiff-appellant.

Fredrickson & Johnson, Robert G. Fredrickson, Canon City, Kane, Donley & Wills, Lee R. Wills, Colorado Springs, for defendant-appellee.

ENOCH, Judge.

Plaintiff H. Wayne Mangus appeals from a judgment entered on a jury verdict which awarded him damages for assault and battery and damages for the wrongful death of his wife. Plaintiff contends that the award of damages is grossly inadequate. We reverse and remand for a new trial on the issue of damages for the wrongful death.

The circumstances surrounding the incident in question are not in dispute. Plaintiff's late wife, Mary Louise Mangus, formerly was married to the defendant, Victor Miller. That marriage lasted approximately ten years and ended in divorce in 1966. Shortly thereafter she married plaintiff. During this second marriage Mrs. Mangus was employed as a business education teacher at an adult rehabilitation center.

At the time of the divorce in 1966, defendant and Mrs. Mangus owned a ranch in joint tenancy. At that time the two entered into a written agreement in which they agreed to postpone final settlement of the division of their interests in that property for five years. The agreement was to terminate on March 1, 1971. During the period in which the agreement was in effect, negotiations were held between the two regarding the property, but no settlement had been reached by February 19, 1971. On that date final disposition of the ranch was discussed at a meeting in the Canon City offices of the attorney who then represented defendant. In attendance were Mrs. Mangus, her attorney, Mr. Mangus, the defendant, and his attorney. Negotiations reached a stalemate. As the conference began to break up, defendant produced a gun with which he fatally shot Mrs. Mangus and wounded the plaintiff.

Plaintiff brought this action for assault and battery and wrongful death, and sought both compensatory and exemplary damages for each claim. Provocation was among the defenses asserted in the answer. At the outset of trial plaintiff withdrew his claims for exemplary damages, and subsequently contended that as a matter of law the withdrawal of the claims for exemplary damages also removed the issue of provocation from consideration by the jury. Therefore, he contended, any evidence which the defense might seek to introduce to show provocation was irrelevant. The trial judge overruled plaintiff's objection and permitted the introduction of evidence on this issue.

Plaintiff put on expert testimony as to the damages resulting to him from the loss of Mrs. Mangus' earnings. When the case was submitted to the jury, the court refused to direct a verdict for plaintiff as to liability and instructed the jury that provocation was a complete defense, despite the objection of plaintiff that the instruction should not be given as a matter of law and on the additional ground that there was no evidence to support a finding of provocation. The jury returned a verdict for plaintiff on each claim, assessing damages at $13,000 for assault and battery, and $30,000 for wrongful death.

In support of his contention that the award of damages is grossly inadequate, plaintiff alleges that the trial court erred as a matter of law: First, in permitting the introduction of evidence relevant only to the issue of provocation; second, in not directing a verdict on liability for plaintiff; third, in instructing the jury that provocation was a complete defense; and fourth, in sending the issue of provocation to the jury at all, in the absence of any supporting evidence. It is argued by plaintiff that even though the jury returned a verdict in his favor, the effect of the above errors was prejudicial to him because, in assessing damages, the jury was permitted to consider inadmissible evidence and was instructed to apply an inappropriate theory of law.

At oral argument, counsel for plaintiff asserted that there was reversible error only as to the award of damages for wrongful death, and withdrew his appeal as it related to any alleged errors in the judgment on his assault and battery claim. Since defendant had no objections to the withdrawal of this issue and there is no cross-appeal, we need only consider the issue of whether there was error necessitating a new trial on the wrongful death claim.

The cause of action for wrongful death is created by statute. It is separate and distinct from the action the deceased would have had had she survived, even though plaintiff's cause of action under the statute arises only if the deceased would have been entitled to bring an...