Publix Cab Co. v. Colorado Nat. Bank of Denver
| Citation | 338 P.2d 702,139 Colo. 205 |
| Decision Date | 13 April 1959 |
| Docket Number | 18282,Nos. 18251,s. 18251 |
| Parties | , 78 A.L.R.2d 198 PUBLIX CAB COMPANY and Leo S. Miloff, Plaintiffs in Error, v. COLORADO NATIONAL BANK OF DENVER, Executor of the Last Will and Testament of William H. Anderson, deceased, Colorado and Southern Railway Company, and Russell K. Jensen, Defendants in Error. COLORADO NATIONAL BANK OF DENVER, Executor of the Last Will and Testament of William H. Anderson, deceased, and Colorado and Southern Railway Company, Plaintiffs in Error, v. Russell K. JENSEN, Defendant in Error. |
| Court | Supreme Court of Colorado |
Kobey & Mitchell, Denver, for Publix Cab Co. and Leo S. Miloff.
Rice & Rice, William L. Rice, Denver, for Colorado National Bank of Denver.
C. W. Krohl, Chicago, Ill., W. L. Peck, J. C. Street, Denver, for Colorado and Southern Ry. Co.
John P. Beck, Robert H. Close, Denver, for Russell K. Jensen.
The parties will be referred to herein as follows: Publix Cab Company as 'Publix', Leo S. Miloff as 'Miloff', The Colorado National Bank, as Executor of the Last Will and Testament of William H. Anderson, Deceased, as the 'Bank', The Colorado and Southern Railway Company as the 'Railway', The Colorado and Southern Railway Employees Hospital Association as the 'Association', and Russell K. Jensen as 'Jensen'.
Publix and Miloff seek reversal of a judgment of the district court in favor of the Bank and the Railway. This is in No. 18251. The Bank and the Railway seek a review and reversal of a judgment of the district court dismissing their claim against Jensen. The two causes have been consolidated, are based upon a common set of facts and will be determined in one opinion.
The personal injury which has given rise to the actions and judgments herein occurred on May 18, 1954 at 17th and Wazee Streets in Denver. The decedent, William H. Anderson, was a pedestrian attempting to cross Wazee Street in a Northerly direction on the West side of 17th Street when he was struck by a vehicle which was then being driven by Jensen and which in turn was hit by a Publix taxicab which was then being driven by Miloff. The taxicab hit the Jensen car at the right rear, spun it around and caused it to strike Anderson. Anderson sustained injuries which resulted in his immediate hospitalization and in his being in a coma from May 18, 1954 until his death on December 31, 1954.
The evidence established that the point of impact was 22 feet North of the South curb of Wazee Street and 14 feet East of the West curb of 17th Street, Jensen was proceeding in a Westerly direction on Wazee Street, Miloff was travelling South on 17th Street. Jensen's testimony was that as he was proceeding West on Wazee Street he stopped at the crosswalk of 17th Street. He waited for a car to pass coming from his left, looked to the right and proceeded across 17th Street. When he reached the middle of the street he saw a pedestrian step off the Southwest curb and he then applied his brakes. As he looked to the right a car was beyond the North crosswalk and was proceeding toward him. Although he tried to continue, his car was hit in the right rear and was swung through a 180 degree turn in the direction of the pedestrian. Jensen testified that when he got out of the car he found Anderson lying in the street. He said that he had not seen the cab and had not looked to the right after he had started up. He estimated his speed at about 10 miles per hour. Miloff's testimony agreed with that of Jensen in substantial particulars. His testimony as to speed was that he was travelling at 20 to 25 miles per hour. There was a factual dispute as to this point and expert testimony was offered based upon skid marks. This indicated that Miloff was travelling somewhat faster than he had testified. The expert, Lt. Roy Tangye, estimated his speed to be 31.966 miles per hour.
On September 16, 1954 the Bank, which was then acting as Conservator for Anderson, filed a personal injury action against Publix, Miloff and Jensen. Damages were demanded for temporary and permanent disability, pain and suffering, and hospital and medical expenses. Following the death of Anderson on December 31, 1954 an Amended and Supplemental Complaint was filed substituting the Bank as Executor in place of the Bank as Conservator and adding the Railway and the Association. On behalf of the Bank damages were claimed consisting of $800 paid as attorney's fees for services to the Conservator, $500 as attorney's fees paid in connection with the original personal injury action, $1,500 paid as Conservator's fees and funeral and burial expenses in the amount of $927.34. The Association alleged that it had been obligated to furnish medical, surgical, hospital and nursing care to Anderson, an employee of the Railway, during his lifetime and that it had furnished these services to the extent of $11,026.77. It was further alleged that this amount would have been payable by Anderson had it not been for the obligation which required the Association to pay them; that by reason of this fact the Association was subrogated to the rights of Anderson and his estate. The Railway alleged that it had been required to pay $3,852.30 to the Association to reimburse it for a portion of the expenditures on account of hospital, medical, nursing, etc., expenses, and that it was by reason of this fact subrogated to the rights of Anderson and the Bank against Publix, Miloff and Jensen.
The answers of defendants alleged that the claims did not survive the death of the decedent under the 'Survival Statute', C.R.S. '53, 152-1-9. At the trial it was established that the Association had paid (on account of medicine, hospital and nursing services) a total of $9,421.21, of which $1,992.50 was attributable to room and board for Anderson. All this claim was assigned by the Association to the Railway.
It was also established that the estate of Anderson paid the Conservator $1,500. This was allowed on February 3, 1955 after the death of Anderson. An allowance of $800 was made for attorney's fees for representing the Conservator in the administration of the estate and the amount of $500 for representing the Conservator in the original personal injury suit. Claims on account of burial were shown to have been allowed in the amount of $721.67 to the Olinger Mortuary, $80.50 to Watson Memorial Company and $125 to Fairmont Cemetery Association. These items were shown to have been paid by the Executor.
Following a trial to the court, judgment was entered in favor of the Bank in the amount of $3,727.24 and in favor of the Railway in the amount of $9,421.21.
The Court's original judgment was later amended and supplanted by formal findings and conclusions and amended judgments. As to the judgment in favor of the Bank, it was found that the $800, $500, and $1,500 items were paid in accordance with claims duly filed in the County Court in the Conservator's estate and that the sum of $927.34 for funeral and burial was also paid pursuant to a claim filed in the County Court and allowed by the court in the Executor's estate. It was also concluded that the estate and property of William H. Anderson was diminished by each of the amounts set forth.
As to the $9,421.21 for hospital and medical expenses, the findings were to the effect that these items were paid during the lifetime of William H. Anderson for his necessary medical care as a result of the injuries incurred and that the payments were made pursuant to the legal obligation of the Association and not as a voluntary act; that as a result thereof the Association became subrogated to the rights of plaintiffs against the defendants, Publix and Miloff, and that the Association had assigned all of its rights to the Railway. Judgment was thereupon directed to be entered in favor of the Bank in the amount of $3,727.24 and in favor of the Railway in the amount of $9,421.21.
Anderson's widow asserted a claim for wrongful death against the defendants under the appropriate statute and settled this claim for $7,500. As of the date of the death of Anderson the limit of recoveries was $10,000. In connection with that disposition, the widow disclaimed funeral and burial expenses as damages. No claim was filed against the estate of Anderson by either the Railway or the Association. All of this was stipulated at the trial.
The points which are relied upon by Publix and Miloff in 18251 may be summarized and paraphrased as follows:
a. The action does not survive the death of Anderson.
b. The Railway does not have a right of subrogation.
c. Attorneys' fees, and food and lodging incident to hospitalization were not properly allowable (assuming that the action survived).
d. The expert testimony was incompetent since it was based upon a test which was inadmissible in evidence.
e. The negligence of Jensen was the proximate cause of the accident.
f. Funeral expenses were not recoverable independently where a wrongful death action has been prosecuted.
The point relied upon by the Bank and Railway in No. 18282 is the alleged error of the court in dismissing their claim against Jensen.
As indicated above, the action here is by the executor of Anderson seeking damages which had accrued from the injury prior to the death of the decedent. These demands are distinct from those which had been made under the 'wrongful death' statute, C.R.S. '53, 41-1-2. Where, as here, the defendant has injured another, but has not caused his immediate death, and he later dies, two distinct actions exist. The executor may bring an action under the Survival Statute, C.R.S. '53, 152-1-9. The other action may be brought by the heirs under the Death Statute. This latter is what is commonly called Lord Campbell's Act, and is not here applicable. The present case is generally referred to as a survival claim.
Plaintiffs contend that the damages herein are recoverable on the theory that...
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