Renell v. Argonaut Liquor Co.
| Decision Date | 02 October 1961 |
| Docket Number | No. 19450,19450 |
| Citation | 365 P.2d 239,148 Colo. 154 |
| Parties | Paul RENELL, Plaintiff in Error, v. ARGONAUT LIQUOR CO., a co-partnership composed of Charles Reuben and Elizabeth Reuben; and Charles Reuben and Elizabeth Reuben and Jack Halstead, Defendants in Error. |
| Court | Colorado Supreme Court |
Kenneth N. Kripke, William C. Murray, Jr., Denver, for plaintiff in error.
Wormwood, O'Dell & Wolvington, Denver, for defendant in error Jack Halstead.
McComb, Zarlengo & Mott, Valentine W. Logan, Greenberg & Yoelin, Denver, for defendants in error Argonaut Liquor Co., et al.
We will refer to plaintiff in error as Renell; to defendants in error Charles and Elizabeth Reuben as Argonaut; and to defendant in error Halstead by name.
The action was commenced by Renell to recover damages for personal injuries which he alleged were sustained as the result of an automobile collision which occurred at East 8th avenue and Colorado Boulevard in Denver, at about 10:00 p.m. December 22, 1958.
It was alleged in the complaint that Halstead negligently drove an automobile into the rear of an automobile owned by Renell who 'suffered a severe injury to his neck with nerve root irritation and other injuries.' It was further alleged that Halstead was acting within the scope of his employment as an employee of Argonaut at the time of the collision; and that Argonaut 'knew or reasonably should have known that the defendant Halstead was too drowsy, overworked and fatigued to drive an automobile on the public highway,' but nevertheless directed him to make its deliveries.
Defendants denied negligence on the part of Halstead; affirmatively alleged contributory negligence of Renell; and that the accident was unavoidable. The issues were tried to a jury which returned a verdict for defendants and judgment entered thereon. Upon the trial of the case counsel for Renell moved for a directed verdict in favor of plaintiff, which was denied. A written motion was filed after the verdict was received asking for the entry of a judgment in favor of plaintiff notwithstanding the verdict and for a new trial upon the issue of damages alone. This motion was denied as was a motion for new trial upon all the issues framed by the pleadings.
The evidence disclosed the following facts: Halstead was driving an automobile in the course of his employment by Argonaut at the time of the collision. He was making deliveries of merchandise. The car of Renell was one of six automobiles which were struck by the car Halstead was driving. Renell was either stopped or at a near stop at the intersection waiting for the signal light to change when his car was hit from the rear.
On cross-examination, when called for that purpose by counsel for Renell, Halstead testified in substance that he had been working extraordinarily long hours for a taxicab company; that he drove the cab until 3:15 a. m. on the morning of December 22, and with only about four hours rest following this shift on the cab he went to work for Argonaut at noon on that day, and at about 9:00 p. m. he was sent out to make deliveries. He admitted that he was tired, and stated that he didn't remember anything that happened between 9:00 p. m. and the time of the accident, but did remember being in the accident. He further stated, in response to the question of counsel for Renell, that it was the belief of those who conducted tests following the accident that he, Halstead, was the victim of a 'simple fainting caused by overexhaustion.' We quote the following from the transcript:
The foregoing evidence, and the testimony of a police officer to the effect that Halstead made a statement at the scene of the accident that he had 'blacked out before the accident,' form the only explanation which was made concerning the reason why the car driven by Halstead struck Renell's car and the five other automobiles.
No claim is made for damages to Renell's car. In fact if there was any it was very inconsequential. He testified concerning the 'whip lash' injuries and damages which he claimed resulted from the collision. He also presented testimony of experts who gave opinions which were based primarily upon the history given by him rather than objective findings based on their own examinations. All the evidence of injury was challenged either by expert testimony offered by defendants or by the observations of subsequent employers, fellow employees, and by motion pictures produced in court showing plaintiff moving in normal fashion about his business without the cervical collar which he wore in the court room. He testified that it was necessary for him to wear the collar most of the time. He asserted that he lost his job by reason of the injuries he received and suffered loss of income. This latter contention was considerably weakened, if not mutilated, by his admission on cross-examination that the company by which he was employed at the time of the accident quit business in the city of Denver under circumstances from which the inference may be drawn that it ceased to do business under pressure of federal investigation of its activities. Plaintiff was a vice-president of that company.
It is argued that the trial court erred in refusing to direct a verdict in favor of plaintiff on...
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