Schlesinger v. Miller, 13612.

• Decision Date: 18 November 1935
• Docket Number: 13612.
• Citation: 97 Colo. 583,52 P.2d 402
• Parties: SCHLESINGER v. MILLER.
• Court: Colorado Supreme Court

52 P.2d 402

97 Colo. 583

SCHLESINGER v. MILLER.

No. 13612.

Supreme Court of Colorado

November 18, 1935

Rehearing Denied Dec. 9, 1935.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by Gertrude Miller, by her next friend, Sam Miller, against Arnold P. Schlesinger. To review a judgment for plaintiff defendant brings error.

Affirmed.

L. Ward Bannister, Samuel M. January, Raymond A. Wagner, and Darwin D. Coit, all of Denver, for plaintiff in error.

Philip Hornbein and Charles Rosenbaum, both of Denver, for defendant in error.

BURKE Justice.

These parties appeared in reverse order in the trial court and are hereinafter designated as there, or by name.

Schlesinger was driving an automobile in which Gertrude Miller was riding as a guest. A collision occurred and she was injured. To recover damages therefor, she brought this suit, charging negligence, carelessness, and recklessness. On a verdict in her favor for $2,000, judgment was entered. To reverse that judgment, Schlesinger prosecutes this writ. The twenty-nine assignments are argued under four general heads which we restate as follows: (1) The court incorrectly instructed concerning city ordinances; (2) the collision was proximately caused by the negligence of a third person; (3) the court improperly gave an oral instruction; (4) no negligence consisting of a 'willful and wanton disregard of the rights' of plaintiff was established.

1 and 2. In view of our conclusion on 4, we need not consider these.

3. During its deliberations, the jury requested an explanation of instruction 8. It was returned to the courtroom and that instruction, amended in writing, was read. Whereupon a juror said: 'It all hinges on that willful and wanton phrase some of the jurors think that means criminal wantonness. It don't so define it there.' Counsel for the plaintiff then said: 'I suggest to the court that the court answer the juror's question and state to the jury whether it has to be a wantonness and recklessness of a criminal nature,' to which the judge responded, 'The court answers that, No.' We think the answer, under the facts of this case, was correct. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82. However, no mention is made of this oral instruction in the motion for new trial, hence the assignment requires no consideration. Rule 8 of the rules of this court.

4. It is earnestly and ably contended that there was here no evidence of 'negligence consisting of a willful and wanton disregard of the rights of others,' as that phrase is used in our applicable statute. Section 1, c. 118, p. 460, Laws 1931. The act couples with the quoted phrase injuries intentionally inflicted or caused by the driver's intoxication. These elements are absent here.

There is evidence in this record that, at the time of the accident, defendant and a girl companion were in the front seat of the car and plaintiff and her escort in the back seat; that Schlesinger was driving forty to forty-five miles per hour on one of the principal streets of Denver; that the time was between 11:00 and 11:30 p. m.; that he was driving with one hand, had his right arm about his companion, and was in the act of kissing her 'just a split second Before the crash'; that he had been repeatedly warned by his passengers of the danger incurred by reason of his conduct; that he paid no heed, 'just laughed'; and that after the accident he requested two of his companions to say nothing about the fact that he was driving with one hand.

Counsel say we have twice so defined 'willful and wanton' as to exclude this...