Rocky Mountain Fuel Co. v. Bakarich

• Decision Date: 05 May 1919
• Docket Number: 9025.
• Citation: 180 P. 754,66 Colo. 275
• Parties: ROCKY MOUNTAIN FUEL CO. et al. v. BAKARICH.
• Court: Colorado Supreme Court

180 P. 754

66 Colo. 275

ROCKY MOUNTAIN FUEL CO. et al. v. BAKARICH.

No. 9025.

Supreme Court of Colorado, En Banc.

May 5, 1919

Error to District Court, City and County of Denver; George W Allen, Judge.

Action by Joseph Bakarich against the Rocky Mountain Fuel Company and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.

J. V. Sickman and Harry S. Silverstein, both of Denver, for plaintiffs in error.

Melville & Melville, of Denver, for defendant in error.

BURKE J.

The defendant in error brought this action against plaintiffs in error for injuries sustained by him in an accident in the Vulcan mine, which resulted in the loss of three of the fingers of his right hand. He claimed damages in the sum of $10,000. The verdict of the jury was in his favor for $4,600 and from judgment entered thereon this writ of error is prosecuted. The parties are hereinafter designated as in the court below.

Seventy-three alleged errors are called to our attention. The first 9 and No. 68 relate to the amendment of pleadings and rulings thereon; the fifteenth to the refusal of the court to first try the cause upon the issue as to the written release hereinafter mentioned; the twenty-seventh, twenty-eighth, and twenty-ninth as to the court's ruling on the submission of special interrogatories; and the nineteenth to the admission of evidence. All these are, we think, without merit. The remainder, so far as necessary to be considered, are included in the subjects hereinafter discussed.

As a result of the accident in question plaintiff claims he sustained numerous and serious injuries in addition to the injury to his hand. He was foreign-born, and there is evidence that at the time of the accident his knowledge of the English language was defective. His principal occupation was that of coal miner. Immediately after the accident he was taken by Dr. Hepner, in the employ of defendants, from the mine to Glenwood Springs. Here he was placed in a hospital under the care of Dr. Crook, another of defendants' employés, who amputated the three injured fingers of his right hand August 7, 1914. On August 30th following, and while he was still in the hospital, he signed Exhibit 1-A, which was introduced in evidence without objection, and which is in words and figures as follows, to wit:

'Exhibit 1-A.

'Settlement in Full for Claim for Personal Injury.

'In consideration of the sum of two hundred and fifty dollars ($250.00) to me in hand paid by the Garfield Mine Leasing Company, a Wyoming corporation, the receipt whereof I hereby confess, I do hereby acknowledge full payment and satisfaction of, and I do hereby forever release and discharge said the Rocky Mountain Fuel Company from any and all claims, demands and causes of action whatsoever which now exist or which may hereafter arise for or on account of any and all personal injuries, of whatsoever character or description, sustained by me in an accident which happened on or about the 7th day of August, A. D. 1914, at the so-called Vulcan coal mine, situated at or near New Castle, Colorado, resulting in the loss of three fingers of my right hand, meaning and intending hereby to, and I do hereby, release and discharge said company from any and all claims and demands whatsoever as fully as if my said injuries, whether the extent thereof be now known or hereafter ascertained, were all described herein in detail.

'In making this settlement, no promise of future employment is or has been made to me.

'I have read and fully understand the foregoing instrument, and agree to same, and hereto affix my signature at Glenwood Springs, Colorado, this 30th day of August, A. D. 1914, as my free and voluntary act and deed.

'Joe Bakarich. [Seal.]

'[Person Injured.]

'Witnesses:

'J. W. Cummins,

'W. W. Crook.'

Dr. Crook was called as a witness, and testified that plaintiff asked him to take up his claim with Cummins, manager of the Leasing Company. To this Crook consented. He says plaintiff looked upon him as his friend, and told him he thought he ought to have $1,000. Witness replied that this was 'out of all reason for the injuries he had.' Crook continued to busy himself about this matter and through him the release was procured. Plaintiff says that he could not read English and did not read the release, but that he understood it to be a settlement for lost time only. Dr. Crook seems to have overlooked entirely any other injuries sustained by plaintiff than the injury to his hand (if such there were), and put himself in the position of representing the plaintiff while actually in the employ of defendants. If he was guilty of bad faith in this transaction, and by reason of his professional position and his attitude toward plaintiff induced him to place confidence in him, and if plaintiff did so, and could not read the release, but depended upon the witness Crook, defendants cannot take advantage of that transaction, and plaintiff is not bound by it. We think there was evidence enough to go to the jury on this question.

The effect of this release, if valid, seems to have been entirely misconceived by the trial court. By instruction No. 6 the jury is permitted, should it take a certain view of the evidence, to disregard the release entirely, save as a receipt for $250. By instruction No. 7 they are authorized to consider it as a release for the injuries resulting from the loss of three fingers. By instruction No. 22 the jury is told that plaintiff can be given no damages on account of the loss of three fingers.

The mention of the loss of three fingers in Exhibit 1-A is clearly only a method of designating the particular accident mentioned in the release. If the release is valid, it is a full and complete release for all injuries sustained by plaintiff in the accident. Otherwise, it is only a release for claim for loss of time, and it is such, not by any specific provision contained therein, but because plaintiff says he signed it with the understanding that it was such a release.

This is not the only fault to be found with these instructions. There are 24 of them altogether. The first, which is almost equal in length to the remaining 23, purports to be a statement of the case. It follows generally the course of the pleadings, with the result that it partakes of the nature of an argument. By far the larger portion of it is devoted to a statement of the claims of the plaintiff. It was objected to on this ground and many others. It could have been no aid to the jury in understanding the issues and was doubtless confusing.

Instruction Nos. 8 and 15 are duplicates. By instruction No. 22 the jury was forbidden to allow plaintiff anything for loss of time or loss of the three fingers. This was on the theory that plaintiff had admitted settlement for loss of time, and that the release showed full settlement for the loss of the three fingers. The jury, by its answer to special interrogatory No. 1, expressly found to the contrary. We think, on the whole, these instructions were so involved, confusing, and contradictory as to have misled the jury.

Defendants were not themselves free from fault in this matter. They submitted for consideration of the trial court 38 requested instructions, a number wholly beyond reason under the circumstances. When a case which has occupied considerable time in its trial, and taken a wide range as to both law and facts, finally simmers down to a few simple questions, and the trial judge is deluged with a perfect torrent of requested instructions, often long and inartificially drawn, adroitly commingling what is true and what is false, stating and restating the same proposition in different terms, approaching each subject from every conceivable angle, and, at the peril of committing reversible error, burdened with the duty of finding 'two grains of wheat in two bushels of chaff,' such a result as here confronts us is not surprising.

Counsel are entitled to request the giving of such instructions as they deem proper. These should only be such as are justified by the pleadings and the evidence. Each proposition of law contended for should be covered by a single requested instruction. The right of counsel to make such requests and have them given careful consideration may be so abused as to be lost. This could be done by handing to the trial judge a copy of Sackett's Instructions to Juries and...