Wise v. Hillman, 79SC6

Decision Date23 February 1981
Docket NumberNo. 79SC6,79SC6
Citation625 P.2d 364
PartiesJames K. WISE, Jr., by and through his guardian and next friend, James K. Wise, Petitioner, v. Lynda D. HILLMAN, Bray Lines, Inc., and Gerald Wayne Shaver, Respondents.
CourtColorado Supreme Court

Fischer & Wilmarth, Elery Wilmarth and Allen R. Schwartz, Fort Collins, Blunk & Johnson, Forrest S. Blunk and James D. Johnson, Denver, for petitioner.

Anderson & Sommermeyer, Mayo Sommermeyer, Fort Collins, for respondent, Lynda D. Hillman.

Law Offices of John Walberg, Don D. Jacobson, Denver, for respondents, Bray Lines, Inc., and Gerald Wayne Shaver.

ROVIRA, Justice.

We granted certiorari to review the opinion of the Colorado Court of Appeals in Hillman v. Bray Lines, Inc., 41 Colo.App. 493, 591 P.2d 1332 (1978), which affirmed the judgment of the trial court. We affirm.

The petitioner, James K. Wise, was a defendant in a negligence action instituted by Lynda D. Hillman. He had been the driver of a pickup truck in which Hillman was the passenger when it collided with a semitrailer truck driven by respondent Gerald W. Shaver in or near the intersection of U. S. Highway 287 and Overland Trail Road near Laporte, Colorado. Wise and Hillman were seriously injured in the accident, and Shaver's truck was damaged. Wise's neurological disability, as a result of the accident, caused him to be declared mentally incompetent, prevented him from testifying, and required that he be represented by a guardian at trial.

Shaver was joined as a codefendant in the Hillman suit along with his employer, the respondent Bray Lines, Inc. (Bray), based on Bray's respondeat superior liability. Cross claims were filed by Bray against Wise and by Wise against Shaver and Bray, each claimant contesting whether it was responsible for causing the accident at issue. The cross claimants offered evidence to support competing explanations of the circumstances of the collision. The jury, in a special verdict, found defendant Wise seventy-five percent negligent and defendants Shaver and Bray twenty-five percent negligent.

According to the petitioner's retained accident reconstruction expert, Dr. William Knott, Wise's pickup truck and Shaver's semi had been driving parallel to each other eastbound on U. S. 287 when the semi, which was passing the pickup, struck it at a point behind its center of gravity, swinging it across the front of the semi and, after shoving it sideways for a distance, pushed it into the path of westbound automobile near the intersection of U. S. 287 and Overland Trail. The petitioner was unable to offer any eyewitness account of the accident to corroborate this reconstruction of events. However, among other circumstantial evidence offered to support his theory of the case, petitioner's counsel elicited testimony during his cross-examination of Hillman that she could not remember being on Overland Trail on the night of the accident, that the couple had no reason to be on Overland Trail, that the route they were taking home toward Fort Collins was straight along U. S. 287, and that, up to a point within a few blocks of the scene of the accident, they had not left U. S. 287. Hillman had no memory of the actual impact which caused her injuries.

An expert retained by Bray and Shaver, Dr. Ronald J. Hensen, was of the opinion that the collision was caused by the pickup's northbound entry onto U. S. 287 from Overland Trail, so that the vehicles were traveling at a perpendicular angle when the broadside impact from Shaver's semi at the intersection of the roads propelled Wise's vehicle into the path of the oncoming car. This "broadside" account of the accident was in accord with eyewitness testimony from the driver of a car who had observed the accident while driving westbound on U. S. 287.

The relative position of the vehicles at the time of impact was the most crucial factual question raised in the litigation. Shaver had either been using lanes carelessly, or Wise had failed to enter the intersection carefully in disregard of a stop sign on Overland Trail. Other matters involving comparative negligence have not been raised in this appeal.

The petitioner argues that reversible error was committed by the admission of certain other testimony which corroborated Shaver's and Bray's theory of the case: (1) despite petitioner's objection alleging violation of the "dead man's" statute, section 13-90-102, C.R.S. 1973, Shaver was allowed to testify to his recollection of the paths of the vehicles at the time of first impact, and (2) investigating police officers were allowed to give opinion testimony on the same subject.

I. The Dead Man's Statute

At common law, there was a general rule that the testimony of all parties to a lawsuit and of all persons who stood to gain or lose by the outcome of the case was excluded as incompetent. McCormick, Handbook of the Law of Evidence § 65 (2d ed. 1972); Jones, Law of Evidence § 20:15 (6th ed. 1972). Under usual circumstances, one was thought unfit to bear witness to the truth when self-interest inspired the telling of profitable lies.

This "most drastic of the common law rules of incompetency" has been abolished in Colorado. McCormick, supra, at 142. See section 13-90-101, C.R.S. 1973. In its place, the legislature adopted what is known as a "dead man's" statute. See section 13-90-102, C.R.S. 1973. With certain important exceptions, parties and other interested persons are now barred from testifying "when any adverse party sues or defends as the trustee or conservator of a mentally incompetent 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 ...." Section 13-90-102(1), C.R.S. 1973 (1979 Supp.). This statute performs the traditional function of guarding against perjury by protecting the mentally incompetent and the estates of decedents from unjust claims. Its purpose is to promote equal justice between the parties at trial by excluding evidence which might otherwise be relevant; in other words, it is intended "to place parties on an equal footing." Berger v. Coon, Colo., 606 P.2d 68, 69 (1980).

No one questions here that because of his neurological injury, Wise was entitled to assert the dead man's statute as a bar. The issue we address is whether he waived the benefit of the statute.

The plaintiff Hillman and the codefendants Bray and Shaver were similarly situated as parties whose interests were adverse to the petitioner. They had real, direct, pecuniary interests in the subject matter and outcome of the action at hand standing to gain or lose in relation to the petitioner by whatever judgment was handed down. All parties at the same time had discrete concerns which might entail different tactical calculations in presenting their cases.

The petitioner admits that he waived the statutory bar as to Hillman by allowing her to testify without objection on direct examination about the events which led up to the accident at issue. Beyond any reasonable dispute, the petitioner took advantage of the resulting opportunity to cross-examine Hillman by eliciting favorable testimony in support of his theory of the case. See Jones, supra, § 20:46.

We agree with the court of appeals that this is a situation which comes within the well-established rule that the examination of one witness who is incompetent under the dead man's statute operates as a waiver of incompetency as to other adverse witnesses, where the testimony of the adverse witness is offered after the examination of the first witness and relates to matters testified to by the first witness. See Annot., 33 A.L.R.2d 1440; Jones, supra, § 20:42. The statute itself creates the relevant exception to its exclusionary effect at section 13-90-102(1)(c), C.R.S. 1973:

"When, in any such action, suit, or proceeding, any such party (entitled to the benefit of the statute) suing or defending or any person having a direct interest in the event...

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19 cases
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