Wilson v. Automobile Owners Ass'n Ins. Co.
| Decision Date | 10 June 1963 |
| Docket Number | No. 20769,20769 |
| Citation | 152 Colo. 431,382 P.2d 815 |
| Parties | Belvie WILSON, Plaintiff in Error, v. AUTOMOBILE OWNERS ASSOCIATION INSURANCE COMPANY, a Missouri Corporation, and Standard Life and Accident Insurance Company, an Oklahoma Corporation, Defendants in Error. |
| Court | Colorado Supreme Court |
D. E. Johnson, Ordway, for plaintiff in error.
Phelps, Fonda, Hays & Wills, Pueblo, for defendants in error.
Two questions are presented by a motion to dismiss and briefs filed in support and in opposition thereto:
(1) Does Wilson's acceptance and satisfaction of the judgment rendered in the trial court preclude review by writ of error; and
(2) Can the matter be raised by Motion to Dismiss?
We conclude that the answers to both questions are in the affirmative.
The briefs and record before us disclose that Wilson, alleging she had suffered injuries in an automobile accident which rendered her totally disabled, sought to recover against defendants in error for certain monthly lifetime benefit payments allegedly due her under a health and accident policy. Defendants denied the disability, and liability under the policy; however, upon trial a jury granted Wilson recovery of $2300.00 plus interest and costs for her disability computed at the monthly rate and based upon conflicting evidence as to whether the injuries were temporary or permanent. It appears that thereafter Wilson filed her motion for new trial on all the issues followed by a 'Supplemental Motion for New Trial', the latter on the grounds of inadequate damages and that the verdict was contrary to all the evidence produced at the trial. Her motion was denied and thereafter defendants in error paid into the Court Registry Fund $2707.55. Wilson accepted the amount paid on April 11, 1963, at which time one of her attorneys endorsed satisfaction in full upon the Judgment Docket. On April 29, 1963 Wilson caused this writ of error to issue seeking reversal as to the amount of damages awarded her. Defendants in error promptly filed a Motion to Dismiss to which both an answer and a reply have been filed along with the record of the proceedings.
In 4 Am.Jur.2d, Appeal & Error, 250, the applicable rule on acceptance of an award is set forth as follows:
'A party who accepts an award or legal advantage under any order, judgment, or decree, ordinarily waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted. * * * unless the decree is such or the circumstances such that there is no inconsistency between such enforcement and the appeal.'
To the same effect are the following authorities: 4 C.J.S. Appeal & Error § 215; Complete Auto Transit v. Louisville & Nashville R. R., Ky., 273 S.W.2d 385, 387 (1954); and Colquette v. Crossett Lumber Co., 149 F.2d 116 (8th Cir.1945).
In 169 A.L.R. 985, et seq. appears a lengthy annotation on this subject which refines the general rule to be in substance that: a party who accepts an award or legal advantage under an order or judgment waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted. In other words, it is the possibility that his appeal may lead to a result showing that he is not entitled to what he has received under the judgment appealed from, that defeats his right to prosecute a writ of error. Numerous decisions from many jurisdictions are cited in support of this proposition.
Wilson acknowledges the general rule but states, however, that her writ of error falls within one of the exceptions recognized in several jurisdictions. (See 169 A.L.R. 985 at 988 for example.) She...
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...Farmers Elevator Co. v. First Nat. Bank, 181 Colo. 231, 234, 508 P.2d 1261, 1263 (1973); see also Wilson v. Auto. Owners Ass'n Ins. Co., 152 Colo. 431, 433, 382 P.2d 815, 816 (1963); 4 C.J.S. Appeal and Error § 193(a) (1993). The rule that acceptance of the benefits of a judgment precludes ......
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...entitled to what he has received under the judgment from which appeal is taken. In re Marriage of Jones, supra; Wilson v. Auto Owners Ass'n, 152 Colo. 431, 382 P.2d 815 (1963). However, if the provisions of the judgment from which the appeal is taken are not mutually dependent on those prov......
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...that the appellant is "not entitled to what he has received under the judgment appealed from." Wilson v. Automobile Owners Association Insurance Co., 152 Colo. 431, 433, 382 P.2d 815, 817 (1963). It has also been held that where the provisions of a judgment are so closely connected and mutu......
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