Staten v. Famularo
| Decision Date | 07 March 1927 |
| Docket Number | 11504. |
| Citation | 81 Colo. 121,253 P. 1066 |
| Parties | STATEN v. FAMULARO et ux. |
| Court | Colorado Supreme Court |
Department 2.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Action by Arthur J. Famularo and wife against Lula O. Staten. Judgment for plaintiffs, and defendant brings error.
Affirmed.
D. L. Webb, H. Berman, and James H. Teller, all of Denver, for plaintiff in error.
J. W Kelley, J. D. Kelley, and Leo J. Crowley, all of Denver, for defendants in error.
The Famularos, man and wife, had a verdict and judgment for $3,500 against Lula O. Staten for negligence. She brings error.
The plaintiffs were tenants of an apartment house owned by the defendant. It caught fire, and the plaintiff's sleeping child was thereby killed and furniture destroyed. The complaint purports to state three causes of action, one for the death of the child, one for its funeral expenses, and one for the lost furniture, all caused by the same acts of lost furniture, all caused by the same acts of negligence, which, it is alleged, caused the fire, and there was a motion to require a separate verdict on each cause of action, which was overruled, and a general verdict was rendered.
The arguments on rehearing have convinced us that the action for death is a separate cause of action. Mich Cent. R. R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas. 1914C, 176; Am. R. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456; Gulf, Colo., etc., Ry. Co. v. McGinnis, 228 U.S. 173, 33 S.Ct. 426, 57 L.Ed. 785. But for other reasons we reach our former conclusion.
The proposition is stated that upon several causes of action a general verdict will be set aside, if in one cause there is reversible error. That is correct. Howe v. Frith, 43 Colo. 75, 78, et seq., 95 P. 603, 17 L.R.A. (N. S.) 672, 127 Am.St.Rep. 79, 15 Ann.Cas. 1069; Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488, Ann.Cas. 1912C, 653. But if there is no such reversible error, the verdict will not be set aside because general. Id. We do not find such error.
But the defendants' motion to require a separate verdict on each cause of action was overruled, and this is assigned as error. The two above cases are cited, but neither holds that the mere denial of such a motion is ground for reversal; but however that may be, this motion is shown by the record to have been made after the instructions had been settled in chambers, just as the judge was going on the bench, before the reporter was seated, and it likewise appears that it was not heard or known of by counsel for plaintiffs, who now says that, if he had heard the motion, he would not have objected, but would have been glad to confess it. He claims, of course, that the overruling of the motion under such circumstances cannot constitute reversible error. We think he is right. There should be no reversal against a party for a ruling upon which he has had no opportunity to be heard. One reason for permitting motions without written notice on trial in open court is that the opponent is present...
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Montgomery v. Tufford
...the items in question was available. Plaintiff, as the owner, was competent to testify as to the value of her property. Staten v. Famularo, 81 Colo. 121, 253 P. 1066; Sandberg v. Borstadt, 48 Colo. 96, 109 P. 419. Her testimony indicates that most of the major items of furniture had been pu......
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O'Brien v. Wallace
...was no testimony to sustain a finding of improper execution. Denver & R. G. Ry. Co. v. Sipes, 23 Colo. 226, 47 P. 287; Staten v. Famularo, 81 Colo. 121, 253 P. 1066; Arnold v. Estate of Farnham et al., 75 Colo. 382, 225 P. 855; Colorado Kenworth Corporation v. Whitworth, Colo., 357 P.2d The......
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