Tompkins v. DeLeon

• Citation: 197 Colo. 569,595 P.2d 242
• Decision Date: 29 May 1979
• Docket Number: No. C-1487,C-1487
• Parties: Jeffrey I. TOMPKINS, as Special Administrator of the Estate of Jose Ruperto del Valle, Deceased, Petitioner, v. Marie DeLEON and Linda DeLeon, Respondents.
• Court: Supreme Court of Colorado

Page 242

595 P.2d 242

197 Colo. 569

Jeffrey I. TOMPKINS, as Special Administrator of the Estate

of Jose Ruperto del Valle, Deceased, Petitioner, v. Marie DeLEON and Linda DeLeon, Respondents.

No. C-1487.

Supreme Court of Colorado, En Banc.

May 29, 1979.

J. Stephen Mullen, L. Dan Rector, Colorado Springs, for petitioner.

James Robert Barash, Patric J. LeHouillier, Colorado Springs, for respondents.

GROVES, Justice.

We granted certiorari to consider the court of appeals' decision, Colo.App., 576 P.2d 563 (1977), interpreting the Dead Man's Statute. We reverse.

The respondents, Marie and Linda DeLeon, suffered bodily injuries on August 22, 1972 when an automobile owned and operated by Jose Ruperto del Valle struck their car from the rear. On September 19, 1973 del Valle died of a cause unrelated to the accident. Subsequently, the respondents sued the administrator of del Valle's estate. At the ensuing trial, respondents sought to testify concerning their pain, suffering and medical care during the time preceding del Valle's death. The trial court ruled that such testimony was barred by the Dead Man's Statute, section 13-90-102, C.R.S.1973. Respondents were permitted to testify about events subsequent to del Valle's death, and the jury awarded damages based on that testimony.

On appeal, the respondents claimed that the damages were inadequate and would have been greater but for the district court's erroneous application of the Dead Man's Statute to preclude testimony about pain, suffering and medical care which occurred prior to del Valle's death. The court of appeals reversed, concluding that the statute was not intended to prevent the admission of testimony which the decedent could not have contradicted of his own knowledge. The cause was remanded for a new trial.

The only issue on appeal is whether the respondents' testimony about pain, suffering and medical care occurring prior to del Valle's death should have been admitted. The statute reads as follows:

"(1) No party to any civil action, suit, or proceeding, or person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf by virtue of section 13-90-101, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic, or distracted person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending, and except in the following cases:

"(a) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring After the death of such deceased person." (Emphasis added) Section 13-90-102, C.R.S.1973.

The statute then lists six more exceptions, none of which apply to this case.

The above quoted provisions were in effect long prior to the 1973 codification of our statutes. These provisions were clear and unambiguous. Young v. Burke, 139 Colo. 305, 338 P.2d 284 (1959); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942). They concerned the competency of witnesses. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).

In the codification of the Colorado Revised Statutes 1973 the General Assembly reenacted the statute without change. Subsequently, it amended the statute as to subjects not relevant here and did not change the above quoted provisions. Colo.Sess.Laws 1975, ch. 251, 13-90-102 at 925; Colo.Sess.Laws 1977, ch. 200, 13-90-102 at 822. When the legislature reenacts or amends a statute and does not change a section previously interpreted by settled judicial construction, it is presumed that it agrees with judicial construction of the statute. Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497 (1977), Cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974); Nye v. District Court, 168 Colo. 272, 450 P.2d 669 (1969). See Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966) in which the trial court ruled that the claimant was not permitted to testify to any events occurring prior to the death of a man who died eight months after the same automobile accident in which the claimant had been injured; and this court affirmed.

The statute clearly prevents the respondents from testifying regarding any events occurring prior to del Valle's death. The court of appeals' decision creates a judicial exception additional to those set forth in the statute and contradicts the purpose of subsection (a) thereof. As the statute is clear and unambiguous and as the competency of witnesses falls within the area of legislative prerogative, there is no room for judicial modification here.

The majority of the court of appeals relied in part upon the belief that admission of the contested testimony would not subvert the purpose of the statute. It may be correct that in this instance admission of the testimony might not have materially obstructed the purposes of the statute. Nonetheless, we agree with the dissenting opinion of the court of appeals that the courts have an obligation to apply the clear language of the statute.

The opinion of the court of appeals is reversed and the cause returned to it for remand to the district court showing our affirmance of the district court.

ROVIRA, J., specially concurs.

ERICKSON and CARRIGAN, JJ., dissent.

ROVIRA, Justice, specially concurring:

When statutory language is unequivocal, as in this instance, common sense dictates that it not be read into, but out from. The philosophy expressed by the dissent is an argument better made to the legislature.

Professor McCormick, as quoted in the dissent, has recognized that it is the statute-makers who must initiate any change in survivors' evidence acts and has suggested alternative solutions which could be utilized by the legislature.

In view of the clarity of the statutory language, and with any fair reading of it, reversal is required. Respect for the English language demands it. A due regard for separation of powers warrants it.

CARRIGAN, Justice, dissenting:

I respectfully dissent.

In interpreting a statute, a court's primary duty is to discern and give effect to the intent of the legislature in adopting that statute. As Judge Sternberg noted in his well reasoned and sensible court of appeals' majority opinion, this court has previously recognized that:

"(W)here a statute would operate unjustly, or absurd consequences would result from a literal interpretation of terms and words used that would be contrary to its obvious and manifest purposes, the intention of the framers will prevail over such a literal interpretation." 40 Colo.App. 241, 243, 576 P.2d 563, 564 (1977), quoting People v. Silvola, 190 Colo. 363, 369, 547 P.2d 1283, 1288 (1976).

The General Assembly's own canons for statutory construction direct that courts, in construing statutes, presume that "a just and reasonable result is intended . . . ." Section 2-4-201(1)(c), C.R.S.1973. The court of appeals' interpretation of the "Dead Man's Statute" in this case admirably applies both this legislative directive and our own.

The majority of this court, however, feels compelled to adopt a strict, literal application of the opening paragraph of the "Dead Man's Statute." In my view, that literal adherence to the form of the words used stifles the spirit, substance and purpose of the statute: to facilitate justice rather than injustice. The effect of the majority opinion is to extend the statute's prohibition beyond its original purpose of precluding the surviving party to a transaction or conversation from possibly biased or untrue testimony where the other party's death prevents rebuttal. The contrary legislative intent is clearly revealed by reading the whole statute, and especially by considering the stated exceptions for the light they shed on the purpose of the general rule.

Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966) has been cited as authority requiring the result reached by the majority. Careful reading of that opinion, however, discloses that it contains no interpretation by this court of the Dead Man's Statute, nor is there even any issue discussed which could have evoked a holding of precedential value regarding the statute. Certainly the issue here involved was not before the court in Gushurst.

We are, therefore, required to apply the familiar rules of statutory construction to determine whether the evidence in question should have been excluded or admitted. In approaching this task we should bear in mind the modern view that the truth-finding process is more likely to be aided by admitting evidence than by excluding it. In this context the issue is whether the truth is more likely to be forthcoming if the primary (perhaps the only) witness to it is allowed to testify, or if that witness is rendered dumb because one not even present when the pain in question was endured has died.

The cardinal goal of statutory interpretation is to discover the legislature's intent, and the primary factors to be considered include: (1) the cause, necessity or reason giving rise to the statute, (2) the object, purpose or goal of the legislature, and (3) the evil the statute was intended to remedy. In re Pilch's Estate, 141 Colo. 425, 348 P.2d 706 (1960).

While the majority's good faith purpose to give meaning to what it perceives to be the statute's plain words, and thus to avoid judicial usurpation of legislative functions, is commendable, I submit that it is misguided and self-defeating in these circumstances. Rigid adherence to literal wording of one portion of a statute, without reference to the entire statute's history, purpose or context, may itself so violate the statute's intent as to usurp legislative authority.

"Judicial frustration, if not usurpation, of legislative authority, may be the result of reflexive judicial...