Pioneer Const. Co. v. Bergeron

• Decision Date: 22 December 1969
• Docket Number: No. 22430,22430
• Citation: 170 Colo. 474,462 P.2d 589
• Parties: PIONEER CONSTRUCTION COMPANY, a Colorado Corporation, Plaintiff in Error, v. Maurice A. BERGERON, Eva M. Bergeron and Eimo Burton, Defendants in Error.
• Court: Colorado Supreme Court

Page 589

462 P.2d 589

170 Colo. 474

PIONEER CONSTRUCTION COMPANY, a Colorado Corporation Plaintiff in Error, v. Maurice A. BERGERON, Eva M. Bergeron and Eimo Burton Defendants in Error.

No. 22430.

Supreme Court of Colorado, En Banc.

Dec. 22, 1969.

M. Myers Bumgardner, Charles D. Pierce, Pueblo, for plaintiff in error.

Spurgeon, Aman & Hanes, Richard W. Hanes, Colorado Springs, for defendants in error.

DAY, Justice.

This case arises out of an automobile accident on a rainy July afternoon on Interstate 25 south of the Air Force Academy. The evidence was that a passenger car traveling toward Colorado Springs on the south-bound portion of the Highway skidded on rainslick, newly laid asphalt, went out of control and bounded over the median strip onto the north-bound lane where it collided with a heavy tractor trailer rig. In the passenger car were Eva M. Bergeron, who was severely injured, her mother, Mrs. Sandefur, and her sister, Mrs. Barbara Burton, both of whom were fatally injured.

Suit for damages was brought against Pioneer Construction Company on the allegation that the highway on which the accident occurred was being resurfaced by Pioneer and had been left in a dangerous condition, which was the proximate cause of the accident. Mrs. Bergeron asked for damages for her injuries, pain, suffering and mental anguish sustained in the collision. Maurice A. Bergeron, her husband, who was not involved in the accident, sought damages for medical expenses paid up to the time of the trial, future medical expenses to be incurred for care and rehabilitation of his wife, together with loss of her services and consortium, and expenses for the care of the children of the parties. Elmo Burton, husband of Barbara, a co-owner of the car, sought similar damages arising out of the death of his wife.

Pioneer denied that it was negligent or that it had left the highway in such a condition as to cause the accident, and affirmatively alleged that the proximate cause of the collision was the sole negligence of Eva Bergeron or Barbara Burton--also allegedly co-owner of the passenger car--or that one or both were contributorily negligent.

Pioneer's motions for a directed verdict at the close of the plaintiff's evidence and again at the close of all of the evidence were denied. Issues of negligence and contributory negligence were submitted to the jury, which returned verdicts as follows: (a) verdict against plaintiff Eva Bergeron and in favor of Pioneer; (b) verdict in favor of Maurice A. Bergeron in the sum of $9000 against Pioneer; (c) verdict in favor of Elmo Burton in the sum of $10,000 and against Pioneer. Because of the verdict against Mrs. Bergeron, obviously predicated upon a finding of her contributory negligence, Pioneerfiled motions for judgment notwithstanding the verdict and for new trial. To the denial of these motions writ of error was sued out in this court.

After filing of the briefs and motion of the parties, writ of error was dismissed as to Elmo Burton, and the propriety of the verdict in his favor is not now involved in this writ of error.

No cross-error is assigned to submission of the issues of the contributory negligence of Eva Bergeron, nor to the verdict against her claim.

The sole issue for our determination is the propriety of the verdict in favor of Maurice Bergeron and whether, after the jury verdict finding Eva contributorily negligent, the court should have granted judgment in favor of Pioneer notwithstanding the verdict for Mr. Bergeron.

On disputed testimony there was sufficient evidence to support the jury's determination that Pioneer was negligent in leaving the highway in the condition that it was at the time of the accident. On the issue of contributory negligence there was no direct evidence as to who was the driver of the passenger car, but there was sufficient circumstantial evidence to establish that Mrs. Bergeron was the driver plus evidence of speed too great for the conditions of the weather and the wet highway, all in support of a jury finding of contributory negligence.

Pioneer has advanced the proposition that if Mrs. Bergeron was negligent it was imputable to her husband and that he cannot recover. Keeping in mind that Mr. Bergeron was not in the car; that no question of agency was involved as between him and the driving of the car by Mrs. Bergeron; that the car was not owned by him and therefore the 'family car doctrine' is not involved, we cannot subscribe to the theory of Pioneer that negligence can be imputed to Mr. Bergeron. In fact, in Swanson v. McQuown, 139 Colo. 442, 340 P.2d 1063, this court laid down the true test for determining the question of imputed negligence as follows:

'Whether negligence can be imputed depends on whether the individual with respect to whom it is sought to impute negligence would be liable to a third person for the tort of the subordinate.

"* * * a plaintiff is barred from recovery by the negligent act or omission of a third person if, but only if, the relation between them is such that the plaintiff would be liable as defendant for harm caused to others by such negligent conduct of the third person.' A.L.I. Restatement of Torts, Sec. 485.'

In this case it is clear that the owners and operators of the tractor trailer which collided with the passenger car Mrs. Bergeron was driving when it careened across the median strip in its path could not recover any damages from Mr. Bergeron on a theory of imputed negligence. Thus the argument of Pioneer on this question is settled in Colorado and has no merit.

However, the resolution of the question of the correctness of the verdict in favor of Mr. Bergeron and whether the court erred in not granting Pioneer its judgment notwithstanding the verdict is not answered by a finding that imputation of negligence is ruled out in this case. Our own research has revealed another body of law which presents a question of first impression in this state and which, if we decide to follow, precludes recovery by Mr. Bergeron.

II.

CONTRIBUTORY NEGLIGENCE OF A SPOUSE AS A BAR TO RECOVERY OF

COLLATERAL DAMAGES SUFFERED BY THE OTHER SPOUSE

American case law seems to be unanimous in holding that the contributory negligence of a spouse bars recovery of collateral damages--loss of consortium, medical expenses, loss of services, etc.--suffered by the other spouse. An annotation in 21 A.L.R.3d 469 examines a selection of cases which discuss the bases for this holding. The cases apply several different theories to explain this rule.

The most frequently advanced theory is that the action for collateral damages is derivative in nature and dependent upon the right of the injured spouse to recover, and is therefore subject to the same defenses that are available in an action arising in favor of the injured spouse. Elmore v. Illinois Terminal Railroad Co., 301 S.W.2d 44 (Mo.App.); Thibeault v. Poole, 283 Mass. 480, 186 N.E. 632; Peters v. Bodin, 242 Minn. 489, 65 N.W.2d 917; Maxson v. Tomek, 244 App.Div. 604, 280 N.Y.S. 319; Friedman v. Beck, 250 App.Div. 87, 293 N.Y.S. 649; appeal dismissed, 274 N.Y. 566, 10 L.Ed.2d 554; Augenblick v. Augenblick, 203 Misc. 360, 117 N.Y.S.2d 69; Mangrelli v. Italian Line, 203 Misc. 685, 144 N.Y.S.2d 570; Lindner v. State, 49 Misc.2d 908, 268 N.Y.S.2d 760; Elser v. Union Paving Co., 167 Pa.Super. 62, 74 A.2d 529.

A representative statement of the reasoning which appears in the above cited cases is that by the court in the Augenblick case, Supra, which said:

'The law gives to the husband * * * a right of action for any injury to the wife * * *, when caused by the actionable acts of another, Per quod servitum amisit. '* * * This right of action is derivative, however, in the sense that if the wife cannot recover in her action for personal injuries either by reason of contributory negligence or because of the failure to show negligence on the part of the defendant, then the husband cannot succeed in his action for loss...