Transamerica Ins. Co. v. Pueblo Gas & Fuel Co.

• Decision Date: 24 October 1973
• Docket Number: No. 72--239,72--239
• Citation: 33 Colo.App. 92,519 P.2d 1201
• Parties: TRANSAMERICA INSURANCE COMPANY, a California corporation, Plaintiff-Appellee, v. The PUEBLO GAS AND FUEL COMPANY, a Colorado corporation, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 1201

519 P.2d 1201

33 Colo.App. 92

TRANSAMERICA INSURANCE COMPANY, a California corporation Plaintiff-Appellee, v. The PUEBLO GAS AND FUEL COMPANY, a Colorado corporation Defendant-Appellant.

No. 72--239.

Colorado Court of Appeals, Div. I.

Oct. 24, 1973.

Rehearing Denied Dec. 4, 1973.

Walberg & Pryor, Robert W. Carney, Denver, for plaintiff-appellee.

Lee, Bryans, Kelly & Stansfield, Denver, Seavy & Jensen, V. G. Seavy, Pueblo, for defendant-appellant.

SMITH, Judge.

Transamerica Insurance Company, assignee of its insured's claim, brought this action against defendant Pueblo Gas and Fuel Company for damages resulting from a fire allegedly caused by defendant's negligence. The case was tried to a jury under the comparative negligence statute, 1971 Perm.Supp., C.R.S.1963, 41--2--14, and a verdict was returned finding defendant 100 per cent negligent and awarding damages to plaintiff. Appealing from a judgment entered in accordance with that verdict, defendant urges that the lower court erred in permitting plaintiff, while establishing a foundation for impeachment, to read from a deposition not meeting the requirement of C.R.C.P. 30(e), and that the jury's verdict was contrary to the law and the evidence. We affirm the judgment entered on the verdict.

On May 31, 1972, Alphonso Martinez vacated his cafe located at 301 and 303 Court Street, Pueblo, Colorado. Prior to that time, Mr. Martinez had called the defendant and requested that the gas service for his cafe be terminated. 301 and 303 Court Street were serviced by two separate gas meters, and there is conflicting evidence whether Mr. Martinez requested that one or both meters be shut off. Thereafter, plaintiff's insureds occupied 301 and 303 Court Street, and began renovations. Insureds also called defendant and requested that gas service for the Martinez cafe be terminated. At that time, insureds did not know that two meters serviced the premises.

Unaware that the pilot light was still on, insureds laid building materials against a heater serviced by the meter serving 303 Court Street. During the evening of July 10, 1972, the temperature dropped, the heater was activated automatically, and a fire started because the heat emanating from the heater could not dissipate. Plaintiff's theory of recovery is that defendant negligently failed to shut off the gas meter servicing 303 Court Street.

I

Defendant first urges that the trial court erred in permitting plaintiff's counsel to read from a deposition which had not been signed in compliance with C.R.C.P. 30(e). Mrs. Even, defendant's employee who received the request for termination of services from Martinez, was called to the stand by plaintiff. She testified that she recalled no conversation as to whether both meters should be shut off. Without objection, plaintiff's counsel sought to impeach his own witness by a prior inconsistent statement elicited from Mrs. Even during the taking of a deposition. Reading from the deposition, plaintiff's counsel asked:

'And at the time of that deposition were you asked the question: 'Did you ask him (Mr. Martinez) if he wanted both of them shut off?''

The witness recognized the question and admitted that she had answered affirmatively. She was then handed the deposition and asked whether her affirmative answer appearing in the deposition was correct. She stated that her answer in the deposition had been incorrect. Defendant argues that because the deposition was not signed nor corrected by Mrs. Even, as required by C.R.C.P. 30(e), it was error for the trial court to permit the above-described use of the deposition.

Both parties agree that Appelhans v. Kirkwood, 148 Colo. 92, 365 P.2d 233, is controlling. In that case the supreme court stated:

'It seems clear from examination of the rule and Moore's comments that the court was in error when it ordered this deposition suppressed upon the basis of the first appearance of irregularities. Counsel for defendants was merely seeking to establish an impeaching foundation by asking the plaintiff whether she had made particular statements on the occasion of the giving of the deposition. Under no circumstance would a motion to suppress have been proper at this point. . . . Defendants were entitled to refer to the deposition or any other document which would serve to bring to the attention of the witness any prior statement which she had made looking to ultimate impeachment. The question of the admissibility of the deposition was not a valid issue until such time as the defendants proposed to impeach the witness by introducing the deposition.'

Defendant reads Appelhans as limiting reference to the deposition to the establishment of a foundation for impeachment. He argues that plaintiff in the present case went beyond foundational questions, and in fact impeached the witness with the deposition.

Although the deposition was not offered into evidence, defendant urges that referring by name and date to the taking of the deposition, reading from it to the witness, showing the exact line of the deposition being referred to, and asking the witness questions about that line has the same effect on the jury as introducing the deposition into evidence. He concludes that plaintiff should not be able to do indirectly that which he is prohibited from doing directly.

Defendant's theory misapprehends the procedure for impeachment by prior inconsistent statement and the purpose of C.R.C.P. 30. First, a proper foundation must be laid for impeachment by prior inconsistent statements by specifically calling attention of the witness to the particular time and occasion when, the place where, and the person to whom he made the statements. Duran v. People,...