Parker v. Ullom

• Decision Date: 08 October 1928
• Docket Number: 11914.
• Citation: 271 P. 187,84 Colo. 433
• Parties: PARKER v. ULLOM.
• Court: Colorado Supreme Court

271 P. 187

84 Colo. 433

PARKER v. ULLOM.

No. 11914.

Supreme Court of Colorado, En Banc.

October 8, 1928

Rehearing Denied Oct. 29, 1928.

Error to District Court, El Paso County; Wilbur M. Alter, Judge.

Action by Anna Ullom against Paul Parker and another. From an adverse judgment, defendant named brings error.

Affirmed.

William E. Hutton and John F. Pierce, both of Denver, and Chinn & Strickler, of Colorado Springs, for plaintiff in error.

L Leslie Miles and Strachan & Horn, all of Colorado Springs for defendant in error.

BUTLER J.

Anna Ullom obtained a judgment against Paul Parker and John M Beckman in an action for damages for the death of her husband. Parker seeks a reversal of the judgment.

1. Ullom was killed in a collision between two automobiles. One was driven by Parker; the other, in which Ullom was riding, was driven by Beckman. The evidence with reference to negligence on the part of Parker and contributory negligence on the part of Ullom was conflicting. These two questions were submitted to the jury by proper instructions, and we cannot disturb the jury's findings thereon.

2. Counsel for Parker contend that Beckman and Ullom were engaged in a joint enterprise; that, because of that fact, the negligence of Beckman should be imputed to Ullom; that such negligence contributed to the collision; and therefore that the plaintiff is not entitled to recover. It is said that the court should have so held as a matter of law, and should have directed a verdict for Parker, but, if this is not so, that the question should have been submitted to the jury.

The evidence bearing on this question was uncontradicted. Additional evidence, claimed to have a bearing upon the question, was offered by the defendant Parker. To such offer the plaintiff made an objection, which the court sustained. The court held that, as a matter of law, there was no joint enterprise, and that Beckman's negligence, if any, could not be imputed to Ullom. If the evidence admitted, plus the evidence rejected, was sufficient to bring the case within the joint enterprise rule as a matter of law, or was sufficient to go to the jury, the court's ruling was reversible error; otherwise it was not.

In the evening of September 18, 1927, Beckman was seated in his automobile near a cigar store in Colorado Springs. He saw Ullom in front of the store. Ullom intimated that he intended to go to a game, and asked Beckman if he wanted to go along, and whether he would take 'them' there in his car. By 'them' he meant himself and a Mr. Plympton and a Mr. Goodspeed. Beckman thought that the game was to be poker, and that it was to be played for money. Beckman told Ullom that he (Beckman) had quit card games and did not care to go, but he finally consented to go along for a while and watch the game. He was not going to engage in any game, and so advised Ullom. Plympton and Goodspeed came out of the store. Ullom spoke to them, and then, getting into the front seat beside Beckman, said to the other two, 'Get in and let's go.' They got in. Beckman, the owner of the car, drove it. The exact place where the game was to be played was not stated. Ullom said that he would show or tell Beckman where it was when they got in the south end of town--would tell him where to stop. That was the only suggestion made by any person with reference to the driving of the car. No one gave any direction or offered any suggestion as to the speed of the car; the manner of driving the car was left exclusively to Beckman, the owner; he was driving to suit himself. So much for the evidence that was admitted by the court.

The offer of evidence is as follows:

'Mr. Hutton: The defendant Parker now offers to show by the witness on the stand, Walter N. Pruitt, that on the night of the accident the witness was invited by Mr. Goodspeed, in the presence of Mr. Ullom, the plaintiff's husband, to attend the party with Mr. Ullom, Mr. Plympton and Mr. Goodspeed; that this party was of the similar character of parties that had been arranged between said gentlemen on a number of prior occasions; that such parties were arranged with a view to engaging in poker games for money stakes, and were of the nature of gambling games carried on in violation of the state law and the ordinances of the City of Colorado Springs, to-wit, Section 654 of the Colorado Springs Code of 1922; that said parties were further arranged with a view to the procuring and use of liquor by the participants therein, contrary to law; that the witness was invited to join, on the evening of the accident, in a party of like character with those that had been participated in by the same gentlemen before; that he was given to understand, in the presence of Mr. Ullom, that the party arranged the evening of September 18th shortly prior to the accident, was of a like character with parties that had been arranged and participated in before, and that the witness on the stand saw Mr. Goodspeed, Mr. Ullom, Mr. Plympton and Mr. Beckman depart from his presence to participate in a party to which the witness had been invited, as before stated, and shortly before the occurrence of the accident. The defendant Parker now offers to show by the witness on the stand, Walter N. Pruitt, that Mr. Goodspeed, one of the members of the party arranged by Mr. Ullom on the evening of the accident, had the reputation, and was in fact, a professional gambler, who was in the habit of attending parties with Mr. Ullom and other gentlemen who were in the care of Mr. Beckman on the night of the accident, for the purpose of engaging in gambling for money and making an income therefrom, and that such party, arranged by Mr. Ullom on the evening of September 18th, and in pursuance of which they were riding in the automobile of Mr. Beckman at the time of the accident, was arranged for the purpose of promoting gambling, such as had taken place at other parties at former times. The defendant now offers, through the witness Beckman, one of the defendants in the case, to establish by his testimony like facts, such as are set forth in the offer made with respect to the witness Pruitt.'

Even on the assumption that such evidence was admissible, its rejection was not reversible error, because such evidence, taken in connection with the evidence that was admitted, was insufficient to sustain a finding that there was a joint enterprise between Parker and Ullom such as would justify charging the latter with the negligence of the former; hence the rejection of the offered evidence would not prejudice the substantial rights of Parker. Code, § 439.

In Denver Tramway Co. v. Orbach, 64 Colo. 511, 172 P. 1063, we said:

'In C. & S. Ry. Co. v. Thomas, 33 Colo. 517, 81 P. 801, 70 L.R.A. 681, 3 Ann.Cas. 700, on which counsel rely, this court, in terms, confined the discussion to passengers in private vehicles, and pointed out that negligence was to be imputed to a passenger only in those exceptional cases in which 'the injured person is in a position to exercise authority or control over the driver.'

'The imputation of negligence in cases of a 'joint enterprise' has the same

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