Noland v. Colorado School of Trades, Inc.

• Decision Date: 28 October 1963
• Docket Number: No. 20330,20330
• Citation: 153 Colo. 357,386 P.2d 358
• Parties: Roger D. NOLAND, Plaintiff in Error, v. COLORADO SCHOOL OF TRADES, INC., a Colorado Corporation, John J. Snyder, individually, and doing business as Colorado School of Trades, Richard Gonser, and Richard E. Kroeckel, Defendants in Error.
• Court: Colorado Supreme Court

Page 358

386 P.2d 358

153 Colo. 357

Roger D. NOLAND, Plaintiff in Error, v. COLORADO SCHOOL OF TRADES, INC., a Colorado Corporation John J. Snyder, individually, and doing business as Colorado School of Trades, Richard Gonser, and Richard E Kroeckel, Defendants in Error.

No. 20330.

Supreme Court of Colorado, En Banc.

Oct. 28, 1963.

Rehearing Denied Nov. 18, 1963.

Robert E. McLean, Marjorie Worland McLean, Richard D. Greene, Denver, for plaintiff in error.

Yegge, Hall & Shulenburg, Wesley H. Doan, Bernard P. O'Kane, Denver, for defendants in error.

MOORE, Justice.

Roger D. Noland was plaintiff in this action, and defendants named in his complaint were the Colorado School of Trades, Inc., John J. Snyder, Richard Gonser, and Richard E. Kroeckel. The action was brought to recover damages for personal injuries allegedly sustained by Noland resulting from the negligence of defendants in handling a firearm upon premises operated by the Colorado School of Trades Inc. The only person designated by Noland as an adverse party in the proceedings before this court is the corporate defendant Colorado School of Trades Inc. We will accordingly refer to plaintiff in error by name or as plaintiff, and to the defendant in error as the School. Others named as defendants in the trial court but not appearing here will be mentioned by name.

Noland alleged in his complaint that the School conducted general gunsmithing classes in Jefferson county; that the defendant Gonser was a student of said school and was acting under the direction and control of the school at the time of the accident involved in this case; that the defendant Kroeckel was an instructor employed by the School and while engaged in the course of his employment he and defendant Gonser, on November 4, 1959, negligently mishandled a gun barrel containing a lead slug. The powder in the gun barrel exploded causing the slug to strike plaintiff in the right hip resulting in permanent injuries and damages to him. He further alleged that at the time of said incident he was on the premises of the School as an invitee.

It was alleged in a second claim that at the time and place above mentioned defendants '* * * engaged in an ultra-hazardous activity or undertaking in the handling, storing, maintaining and using of 'gun powder.' That it was as a direct and proximate result of the defendants ultra-hazardous activity in the use of said 'gun powder', that caused the serious injuries and damages to the plaintiff as are herein described. That the conduct of the defendants, and of each of them, constituted an ultra-hazardous activity.'

In the answer of the School it was admitted that defendant Kroeckel was an instructor employed by it; denied that Gonser was connected in any manner as an agent of the School; and denied that any of the named defendants had been negligent as claimed by plaintiff. Affirmative defenses of contributory negligence, assumption of risk, and unavoidable accident were relied on by the School. Other defendants filed similar answers.

At the close of the evidence counsel for Kroeckel moved the court for a directed verdict, which the trial court granted in the following manner:

'THE COURT: The motion is going to be granted to Mr. Kroeckel. I don't think he had anything to do with it.

'That leaves Snyder and Kroeckel out and that leaves Gonser and the corporation.'

At the conclusion of the trial to a jury a verdict was returned awarding damages in favor of Noland and against the School in the sum of $16,000.00. As to the defendant Gonser the verdict of the jury was in his favor. The court entered judgment accordingly. Noland, being satisfied with the judgment against the School, filed no motion for a new trial as to the defendants who were eliminated from the case, namely, Snyder, Kroeckel and Gonser. Counsel for the school filed no motion for a new trial but did file a motion for judgment notwithstanding the verdict. This motion contained the following statement:

'AS GROUNDS FOR THIS MOTION, the defendant shows unto the Court as follows:

'1. That in accordance with the allegations of Paragraphs 3 and 4 of the plaintiff's Amended Complaint of the First Claim for Relief thereof, the only possible theory upon which the liability of the defendant, Colorado School of Trades, Inc., a corporation, could be predicated upon was that of the agency of Richard Gonser and Richard E. Kroeckel, the allegations being that they were acting ad agents, servants, and employees of the Colorado School of Trades, Inc., and through the negligence of such agents, the plaintiff sustained the injuries and damages alleged in his Complaint.

'2. That in accordance with the Motion for a Directed Verdict made by the defendant, Richard E. Kroeckel, at the close of all of the evidence, the Court directed a verdict of dismissal against such agent, and by reason of the jury verdict, returned against the plaintiff and in favor of the defendant, Richard Gonser, both of the agents were dismissed from the case and therefore there was no finding made by the Court or jury upon which liability against the corporation could be predicated.

'3. That in accordance with the provisions of the applicable law of the State of Colorado, where there is a verdict against the employer or principal, and one in favor of the employee or agent, the same is equivalent to a finding that no cause of action exists, and, consequently, there can be no judgment against the employer, and under the circumstances of the instant case, the direction of the verdict against the plaintiff in favor of the defendant, Kroeckel, and the return of a verdict in favor of the defendant, Gonser, by the jury, indicated the feeling of the Court and jury that no cause of action existed in the instant case, since the corporation could only act through its agents and employees to cause harm or injury to the plaintiff, and therefore, under the circumstances, the instant case cannot be held liable.'

The trial court granted the School's motion, vacated the judgment for $16,000.00 therefore entered in favor of Noland, and entered a judgment in favor of the School. All this over objection of counsel for Noland who elected to stand upon the record as made and seek review of the single question of whether the trial court erred in granting the motion for judgment notwithstanding the verdict.

After writ of error issued and prior to the date upon which the record was filed in this court, the School filed a motion to dismiss the writ of error on the ground that no 'Motion for a New Trial' was filed by Noland following entry of the judgment in favor of the School. This motion was denied, but the point is again urged in the brief of counsel for...