Vick v. Zumwalt, 17203

• Decision Date: 07 September 1954
• Docket Number: No. 17203,17203
• Citation: 130 Colo. 148,273 P.2d 1010
• Parties: VICK v. ZUMWALT et al.
• Court: Colorado Supreme Court

Page 1010

273 P.2d 1010

130 Colo. 148

VICK v. ZUMWALT et al.

No. 17203.

Supreme Court of Colorado, En Banc.

Sept. 7, 1954.

Rehearing Denied Sept. 27, 1954.

Chilson & McCreary, Loveland, for plaintiff in error.

Riffenburgh & Harden, Fort Collins, for defendants in error.

KNAUSS, Justice.

In the trial court plaintiff in error M. M. Vick and his son, David Vick, were defendants, and defendants in error were plaintiffs. The essential facts are that M. M. Vick of Loveland, Colorado on February 16, 1952 was the onwer of a Mercury automobile; that on said date his son, David, then almost fifteen years of age, while his parents were away from their home and in Fort Collins, Colorado, took the Mercury automobile from his father's garage and with the minor plaintiffs, Carol Zumwalt and Sam Rowley, as his guests, drove into the country. The occupants of the Vick car discovered that another high school student was following them in an automobile, whereupon David Vick increased the speed of the Mercury car he was driving and, according to some of the testimony, played 'ditch em' with the driver of the other car. In an attempt to outrun the other car and elude it, the respective cars passed a time or two, when the Mercury car, driven by David Vick, left the road and overturned in a ditch. Carol Zumwalt and Sam Rowley were injured and this action was instituted on their behalf, against David Vick and M. M. Vick, for resulting injuries and damages to David's guests on this occasion. The fathers of Carol Zumwalt and Sam Rowley joined claims against defendants for expenses incurred by them in having their children hospitalized and treated, and for other losses claimed by them.

Plaintiffs sought recovery against David based on his alleged 'negligence consisting of a wilful and wanton disregard of the rights' of the injured guests, and sought recovery against M. M. Vick on the 'family car doctrine'. It is admitted that M. M. Vick did not know that his son was driving the car on February 16, 1952.

In the complaint it was alleged 'That the said motor vehicle driven by the defendant David Vick was owned by his father, the defendant, M. M. Vick; that said motor vehicle had been purchased for family use; that the said motor vehicle at the time of the said negligence was being operated by the defendant David Vick solely for his own pleasure under the general permission of the defendant M. M. Vick; and that said defendant David Vick was a member of the household of the defendant M. M. Vick at the time of said negligence.'

Defendants put in issue the material allegations of the complaint and set up as defenses the 'guest statute' and contributory negligence on the part of Carol Zumwalt and Sum Rowley, and that the said plaintiffs voluntarily assumed the risks incident to the trip on which they went with David Vick, well knowing that he was an unlicensed, incompetent, and inexperienced driver of a motor vehicle.

Trial was to a jury, which returned verdicts in favor of plaintiffs and against David Vick and M. M. Vick. Following denial of motion for new trial and entry of judgment, defendant M. M. Vick brings the cause here by writ of error.

When the cause was submitted to the jury for determination of the issues, in addition to the usual forms of verdict, the following interrogatories were submitted to the jury:

'1. Was the accident proximately caused by negligence of defendant David Vick, as negligence is defined in that instructions of the court?

'2. Did the negligence, if any, of the defendant David Vick consist of a wilful and wanton disregard of the rights of the plaintiff Carol Zumwalt?

'3. Did the negligence, if any, of the defendant David Vick consist of a wilful and wanton disregard of the rights of the plaintiff, Sam Rowley?

'4. Was the defendant David Vick driving the automobile at the time of the accident with the consent of the defendant M. M. Vick?

'5. Was the plaintiff Sam Rowley, contributorily negligent as contributory negligence is defined in the instructions of this court?

'6. Was the plaintiff Carol Zumwalt contributorily negligent as contributory negligence is defined in the instructions of this court?'

Upon returning to the court is verdicts, the jury answered the interrogatories as follows:

'1. Yes.

'2. No.

'3. No.

'4. Implied consent Yes.

'5. No.

'6. No.

Before receiving the verdicts and the answers to the special interrogatories, the court returned the jury to the jury room 'for further consideration of your verdicts and Answers to Special Interrogatories.'

It appears that later, and after the dinner hour had passed, it was again returned into open court where the court addressed the jury as follows: 'Ladies and Gentlemen, there seems to be some inconsistency between your answers to the Interrogatories and your verdicts. I shall therefore ask you to again return to your jury room and re-consider the instructions of the court and particularly Instruction No. 9.' To this charge counsel for M. M. Vick objected.

Thereafter the jury returned into court with the identical verdicts, but changed its answers to interrogatories numbered 2 and 3, and substituted the word 'Yes' in place of the word 'No' in each instance. The other answers were the same as originally returned.

For reversed it is urged (1) that the evidence was insufficient to sustain the verdict of the jury that the automobile was being operated by David with the consent of his father M. M. Vick; (2) that the trial court erred in giving instruction No. 14; (3) that the minor plaintiffs were guilty of contributory negligence 'in riding with one whom they knew, or should have known by the exercise of ordinary care, was incompetent and unqualified to operate a motor vehicle; and also by remaining in the car without objection after the operator had committed acts of recklessness and negligence; (4) That the evidence is insufficient to sustain the finding of the jury that David was guilty of negligence consisting of a wilful and wanton disregard of the rights of the plaintiffs; (5) that the trial court erred in resubmitting the cause to the jury after it returned its first answers to the interrogatories with instructions to 'consider particularly Instruction No. 9.'

Subdivisions 3 and 4 of the asserted grounds for reversal are without merit. These matters were submitted to the jury and its findings returned under instructions not here challenged.

Subdivision 1 of the error asserted, is the very matter the jury was called upon to determine, and its finding would be binding were it not for error in Instruction No. 14, which reads as follows:

Instruction No. 14.

'You are instructed that if you find for the plaintiffs, or any of them, against the defendant David Vick, you should then inquire as to the responsibility of the defendant M. M. Vick, for the negligence, if any, of his son David Vick.

'In this connection you are instructed as follows: If you find from a preponderance of the evidence that David Vick, on the occasion in question, was using the automobile with the consent, either express or implied, of his father M. M. Vick, then you shall find for such plaintiffs and against the defendants David Vick and M. M. Vick jointly.

'If you should find from a preponderance of the evidence that David Vick was using the automobile on the occasion in question, without the consent, either express or implied, of his fater M. M. Vick, then your verdict should be for the defendant M. M. Vick and against the plaintiffs.

'Express consent, as used in this instruction, is a consent that it specifically stated.

'Implied consent, as used in this instruction, is a consent arising from facts and circumstances which would lead a reasonable person to believe that consent had been given.

'The word 'consent' as used in this instruction may be a general consent to use the automobile at any or all time, or may be a special consent to use the automobile on this particular occasion.'

By Instruction No. 14 the jury was told that the liability of M. M. Vick could be based on the 'negligence, if any' of his son David Vick. We direct attention to our holding in Pettingell v. Moede, Colo., 271 P.2d 1038, decided June 14, 1954. There, in an exhaustive opinion Mr. Justice Clark has ably set forth the rules pertaining to the liability of a host for injuries sustained by a guest, and the term 'wilful and wanton disregard' is defined. Plaintiffs in the trial court could not recover against David for simple negligence, and yet by Instruction No. 14 the jury was told that the liability of the father could be predicated on 'the negligence, if any' of David. This is error.

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