Myers v. Myers

• Decision Date: 29 October 1962
• Docket Number: No. 20018,20018
• Citation: 151 Colo. 8,375 P.2d 525
• Parties: Frances E. MYERS, Plaintiff in Error, v. Lawrence P. MYERS, Defendant in Error.
• Court: Colorado Supreme Court

Page 525

375 P.2d 525

151 Colo. 8

Frances E. MYERS, Plaintiff in Error, v. Lawrence P. MYERS, Defendant in Error.

No. 20018.

Supreme Court of Colorado, In Department.

Oct. 29, 1962.

James T. Ayers, George A. Hinshaw, A. Daniel Rooney, III, Aurora, for plaintiff in error.

Duane O. Littell, Denver, for defendant in error.

DAY, Chief Justice.

Plaintiff in error, the wife of defendant in error, sued her husband to recover damages for personal injuries sustained by her in an automobile accident which occurred November 15, 1957, when, as alleged in the complaint, the husband was 'in sole and absolute control of the motor vehicle in which plaintiff was riding.' It was further alleged that the defendant 'negligently or wilfully and recklessly drove his motor vehicle' thereby causing the injuries complained of. It was further alleged that the husband at said time and place 'was operating said vehicle while intoxicated, which intoxication was without the knowledge of plaintiff.'

By way of answer defendant husband, among other defenses, plead contributory negligence and assumption of risk on the part of the plaintiff wife.

Trial was to a jury resulting in a verdict for defendant. Motion for new trial was denied and judgment was entered on the verdict, from which the wife prosecutes this writ of error.

The matters urged for reversal are: 1. That the trial court erred in submitting to the jury instructions on the defenses of contributory negligence and assumption of risk; 2. That the trial court erred in not granting plaintiff a new trial based on alleged newly discovered evidence.

The facts gleaned from the record disclose that the automobile in which the plaintiff was riding was jointly owned by plaintiff and defendant. On the date of the accident the husband drank some intoxicants between 11 A.M. and 2:45 P.M. and then took the jointly owned automobile to the place where his wife was employed and waited until she completed her work at 3:30 P.M. Thereupon, by mutual agreement, they repaired to a tavern where they remained from approximately 4 P.M. until 8 P.M., during which time additional intoxicants were consumed. At about 8 P.M. they left the tavern, the husband driving the car. A few minutes later the accident occurred.

A witness testified that although she left the bar room some two and one-half hours before the time the husband and wife departed she was of the opinion that the husband was at that time intoxicated. The same witness testified that she heard the wife tell her husband she wanted to go home in a taxicab; that they had gone home in a taxi before when they had been drinking, and she wanted to go home in a cab. A studied effort was made by the wife's counsel to establish that the husband was not intoxicated before leaving the tavern.

From the evidence before it the jury could reasonably conclude that both husband and wife imbibed freely of the cup while in the tavern; that they went there for just such a purpose as they had in the past. A police sobriety test of the defendant husband indicated that he was intoxicated, and the blood ethyl alcohol test was introduced in evidence...