Polz v. Donnelly

• Decision Date: 12 December 1949
• Docket Number: No. 16234,16234
• Citation: 213 P.2d 385,121 Colo. 95
• Parties: POLZ v. DONNELLY.
• Court: Colorado Supreme Court

Page 385

213 P.2d 385

121 Colo. 95

POLZ v. DONNELLY.

No. 16234.

Supreme Court of Colorado, in Department.

Dec. 12, 1949.

Frank H. Hall, Trinidad, for plaintiff in error.

Nicholas C. Dazzo, Joseph F. Nigro, Trinidad, for defendant in error.

JACKSON, Justice.

Plaintiff, who is plaintiff in error here, sued defendant on a promissory note seeking recovery of an alleged unpaid balance of $838.21. The note was given in part payment of a used Luscombe 8A-41 plane.

Defendant answered and counterclaimed in the following language: 'Defendant admits signing a note on May 15, 1941, but alleges and states that said note was given in payment for a used luscombe BA plane [in all other places in the record the plane is referred to as a Luscombe 8A] which was purchased May 19, 1941, from the plaintiff for the sum of $2150.00. That the plaintiff stated as a fact that the said plane was in a good and perfect condition and free from any and all defects. That thereafter this defendant caused said plane to be checked at Denver, Colorado, and that said check revealed that the bulkhead of the said plane was cracked and this defendant expended the sum of $375.00 to repair said bulkhead.'

At the close of the trial the court, without objection from defendant, instructed the jury to return a verdict in favor of plaintiff on plaintiff's complaint in the amount of $838.21. Judgment was entered in favor of plaintiff for this amount. The jury also returned a verdict on defendant's counterclaim in favor of defendant for $375.00 and judgment was entered for this amount in favor of defendant and against the plaintiff. Plaintiff brings the cause here for review, seeking reversal of the judgment entered in favor of defendant on the counterclaim.

There are seven specifications of points, the gist of which, to use the words of plaintiff's counsel, is that, '* * * the defendant has wholly failed to plead or prove an action entitling him to recover damages for deceit or misrepresentation and the further fact that if there were pleadings or proof of misrepresentation or fraud there is a total failure to plead or prove by any recognized rule of law any recoverable damages on account thereof.'

It appears from the evidence that the plane was sold by plaintiff to defendant in May, 1941, and that defendant took possession not later than June 18, 1941. On or about December 16, 1941, when the plane was taken to Denver for inspection and relicensing, it was discovered that the bulkhead was cracked. The testimony disclosed that the bulkhead of a plane is like the frame of an automobile and serves the same purpose of support. There is no definite testimony as to how or when the bulkhead in question was cracked. According to defendant's written statement, he and several others had flown the plane about 250 hours prior to December 16, 1941, when the cracked bulkhead was discovered. Plaintiff testified that he had certified mechanics had thoroughly examined the plane prior to the sale, had put it in perfect condition, and that the bulkhead was not cracked or damaged at the time of the sale. In its inspection report, the Civil Aeronautics Administration certified that the plane was flight worthy at the time of delivery. It will be noted that defendant, in his counterclaim, does not allege that the bulkhead was cracked at the time the plane was sold, nor does an examination of the evidence establish the proposition that the bulkhead was cracked at that time. Defendant's testimony goes to the point that he did not break the bulkhead while he was operating the plane. Another witness, Sutherland, who operated the plane between May and December 1941, and who instructed defendant in the art of flying, testified that he did not break the bulkhead. On cross-examination Sutherland stated that he did not know when the bulkhead was cracked, and did not know who cracked it. On cross-examination, defendant stated that he did not know who broke it; that he loaned the plane to Ted Reimer for a trip to Kansas City and didn't think the bulkhead was cracked on that trip. He further testified that he had no personal knowledge, but only knew 'what other people say.' He...