Pando v. Jasper, 17771
| Decision Date | 26 March 1956 |
| Docket Number | No. 17771,17771 |
| Citation | 295 P.2d 229,133 Colo. 321 |
| Parties | Julian PANDO, Plaintiff in Error, v. Avundo JASPER, Defendant in Error. |
| Court | Colorado Supreme Court |
Matt J. Kikel, Pueblo, for plaintiff in error.
Phelps, Fonda & Hays, Pueblo, for defendant in error.
Plaintiff in error was plaintiff in the trial court in an action to recover damages for personal injuries resulting from an automobile accident on October 10, 1953, while he was a passenger in an automobile owned and driven by defendant in error. We will refer to the parties as they appeared in the trial court. The accident occurred near Cimarron, Kansas.
The complaint alleged that the accident was the result of defendant's negligence and recklessness 'consisting of a wilful and wanton disregard of the rights of the plaintiff.'
By answer defendant admitted that the accident occurred; that plaintiff was riding in the automobile owned and operated by defendant; denied any negligence and set up several affirmative defenses, only two of which we need consider, viz.: First Affirmative Defense 'that the relationship between the plaintiff and the defendant was one of joint venture', and Fourth Affirmative Defense 'that under the applicable laws, the plaintiff was a guest'.
Prior to trial and over the objection of counsel for plaintiff, defendant was permitted to strike from his answer the First Affirmative Defense which alleged that plaintiff and defendant were engaged in a joint venture.
The evidence discloses that during the afternoon of October 10, 1953, defendant was the owner of a Pontiac automobile and 'plaintiff took a ride with Mr. Jasper', the defendant. Plaintiff testified: 'we started going east until we got to where the accident happened.' He further testified that defendant drove his car at an excessive rate of speed, and 'I mentioned the fact that he was driving too fast.' To which defendant replied: 'he was driving for a long time and hadn't turned over yet and said he was a good driver.' Defendant's car went off the pavement on the right side of the road and then crossed the highway and ran into some fence posts and a telegraph pole. The accident occurred in Kansas on a road paved with blacktop. Plaintiff sustained personal injuries, including a fractured leg.
Trial to a jury resulted in a verdict for defendant and plaintiff brings the case here on writ of error.
For reversal it is urged that the trial court erred in allowing defendant to strike the affirmative defense of joint venture from his answer, and in admitting the Kansas Guest statute in evidence and permitting defendant to introduce evidence pursuant thereto.
It is said that the trial court 'abused its discretion' in permitting defendant to withdraw his first affirmative defense. We think not. Where, as here, several affirmative defense are pleaded, defendant may at any time with the approval of the trial court withdraw one or all of them and thus limit the issues. We perceive no prejudicial error in the court's ruling permitting defendant to withdraw his first affirmative defense. The evidence clearly discloses that the parties to this action were not engaged in a joint venture, plaintiff's own testimony contradicts that which his counsel, at the opening of the trial, attempted to orally admit, to wit: that the allegation of a...
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First Nat. Bank in Fort Collins v. Rostek
...the motion must be denied. 'The law in Colorado is that the claim is governed by lex loci delicti, rather than lex fori. Pando v. Jasper (133 Colo. 321), 295 P.2d 229 and Bannowsky v. Krauser, (D.C.), 294 F.Supp. The petitioner then petitioned this court, pursuant to C.A.R. 50, for a writ o......
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Bannowsky v. Krauser
...85 L.Ed. 1477 (1941). The applicable Colorado rule is that the substantive law where the tort occurred applies. See Pando v. Jasper, 133 Colo. 321, 295 P.2d 229 (1956). And in wrongful death actions, Colorado applies the law of the state where the death occurred. See Burlington Transportati......
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Dym v. Gordon
...guest involved in an accident occurring outside Colorado, even though both be Colorado residents, Dobbs v. Sugioka, supra; Pando v. Jasper, 133 Colo. 321, 295 P.2d 229. The instant case is distinguishable from Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, in that (1) ......
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Estate of Murphy v. Colorado Aviation, Inc., Civ. A. No. C-4381.
...death acts, Colorado applies the law of the state where the death occurred." Not only has Colorado adopted this rule (see Pando v. Jasper, 133 Colo. 321, 259 P.2d 229), but the rule is also supported by the great weight of authority (see Stoltz v. Burlington Transportation Co., 178 F.2d 514......