Moseley v. Lamirato, 19790
| Decision Date | 12 March 1962 |
| Docket Number | No. 19790,19790 |
| Citation | 370 P.2d 450,149 Colo. 440 |
| Parties | Nathaniel C. MOSELEY, Plaintiff in Error, v. Martha J. LAMIRATO, now known as Martha J. Kingry, Defendant in Error. |
| Court | Colorado Supreme Court |
Enos, Buchler & Deisch, Denver, for plaintiff in error.
Samuel J. Eaton, Denver, for defendant in error.
The present controversy had its origin in a two-car automobile collision which occurred on October 13, 1959 at about 8:30 o'clock A.M. on West 6th Avenue at the Valley Highway overpass, in Denver.
In her complaint Lamirato alleged that she was driving her car in an easterly direction on West 6th Avenue and that in the immediate vicinity of the Valley Highway overpass she stopped her vehicle because the entire line of traffic in which she was traveling had stopped; that after having been in this 'stopped' position for several minutes Moseley, who was also traveling in an easterly direction on West 6th Avenue, negligently drove his vehicle into the rear end of her automobile; that as a proximate result of Moseley's negligence Lamirato suffered damage in that (a) her automobile was damaged to the extent of $149.33; (b) she 'was severely and seriously injured, causing her to suffer injury to her spine, together with contusions and muscular injury and internal hemorrhage of the tissues, which have resulted in permanent injuries * * *, together with extreme pain and suffering and permanent disability'; and she prayed for judgment against Moseley in the amount of $20,000.
In a second claim Lamirato alleged in essence that Moseley and his agent, the Crocker Claims Service, perpetrated a fraud upon her and in this regard sought judgment against Moseley and Crocker Claims Service in the sum of $1,000 as actual damage, and in the sum of $2,000 as exemplary damage.
In this second claim Lamirato alleged that Crocker Claims Service, acting as the agent for Moseley, did state and represent to her that if she took her automobile to a certain garage her vehicle would be repaired 'at no cost' to her; that this representation was false and untrue in that Crocker Claims Service 'knew at the time the statements were made that the repairs * * * would not be made at no expense to her unless * * * [she] executed a general release of all claims pertaining to * * * the accident'; that relying on this representation she in fact delivered her damaged automobile to the garage selected by Crocker Claims Service, but that when her vehicle was repaired the operator of the garage acting on instructions from Crocker Claims Service refused to turn over the automobile to her unless she executed a general release, which she refused to do; and finally that as a result thereof she was compelled to borrow money to pay the repair bill and obligated herself to pay interest at the rate of 8% per annum on such loan, and that she suffered additional damage in that the attendant delay caused by the incident deprived her of the use of her automobile for thirteen days.
By answer Moseley admitted the collision, but denied that any negligence on his part caused any resultant damage to Lamirato, and affirmatively pled contributory negligence and unavoidable accident. In connection with Lamirato's second claim Moseley denied all.
This litigation was 'at issue' on June 15, 1960, and in due time came on for trial to a jury on February 20, 1961. Only minutes before impaneling of the jury, Moseley for the first time orally moved that Lamirato's two claims be separately tried for the reason that 'it would be highly prejudicial to * * * Moseley to have the two causes of action tried in the same case.' With no extended argument, this motion was denied. However, at the conclusion of her case the trial court dismissed Lamirato's second claim as to both Moseley and Crocker Claims Service, apparently on the ground that there was a paucity of evidence to support the allegations set forth therein.
At the conclusion of all the evidence the trial court granted Lamirato's motion for a directed verdict in her favor on the issue of liability, and thereafter submitted to the jury the one question relating to the extent of her damage. The jury fixed her damage at $7,800, and appropriate judgment was entered thereon.
In his motion for new trial Moseley states that the trial court erred in the following particulars: (1) the trial court erred in refusing to order that Lamirato's two claims b separately tried; (2) that there was no competent evidence that Lamirato suffered any permanent injury, and hence it was error to instruct in connection therewith; (3) it was error to hold that Moseley was negligent as a matter of law; (4) that error was committed in allowing an osteopathic physician and surgeon to testify as to Lamirato's physical condition and to express his opinion as to the permanency of her injuries; and (5) the verdict was so excessive as to 'indicate passion, prejudice or unaccountable caprice on the part of the jury.' This motion was denied and Moseley is here by writ of error seeking reversal of the judgment.
The assignments of error urged by Moseley are the same as the grounds set forth in his motion for new trial. To more fully understand these various assignments it is essential that they be viewed in the light of the evidence adduced upon trial. Hence, a brief recital of the evidence is in order.
There is little dispute as to the manner in which the accident occurred. Lamirato was stopped because the line of traffic immediately in front of her was stopped. After having been stopped for an appreciable time interval of from one to three minutes, the Lamirato vehicle was struck in the rear end by the front end of the Moseley driven vehicle. Moseley was also proceeding in an easterly direction on West 6th Avenue and he testified that he failed to see the Lamirato vehicle until it was 'too late' to avoid striking it. On this state of the record the trial court did not err in directing a verdict against Moseley on the issue of liability. Neither the facts nor the inferences deducible therefrom are in dispute, and the measure of Moseley's duty, as well as that of Lamirato, is clearly defined. Under such circumstances the question of negligence and contributory negligence is one of law, properly to be resolved by the Court. See, for example, Grand Junction, City of, v. Lashmett, 126 Colo. 256, 247 P.2d 909; Clark v. Joslin Dry Goods Company, 128 Colo. 317, 262 P.2d 546; and Ridenour v. Diffee, 133 Colo. 467, 297 P.2d 280.
The real dispute centers around the extent of Lamirato's injuries. In short, Lamirato contends that she suffered a 'whip-lash' type...
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...not be disturbed on review, unless it [is] clearly shown that there was an abuse of such discretionary power." Moseley v. Lamirato, 149 Colo. 440, 447, 370 P.2d 450, 455 (1962); see Smith v. Smith, 172 Colo. 516, 474 P.2d 619, 621 (1970) (holding that whenever this court is called on to rev......
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...against it and AOSHPI created juror confusion with reference to Big Horn's liability on the negligence claim. See Moseley v. Lemirato, 149 Colo. 440, 370 P.2d 450 (1962). VI For the foregoing reasons, we reverse those portions of the judgment of the Court of Appeals vacating the trial court......
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