American Ins. Co. v. Naylor

Full title: AMERICAN INSURANCE COMPANY ET AL. v. NAYLOR

Court: Supreme Court of Colorado. En Banc

Date published: Jun 21, 1937

70 P.2d 353 (Colo. 1937)

70 P.2d 353

Opinion

No. 13,954.

Decided June 21, 1937. Rehearing denied July 12, 1937.

Action for damages resulting from an automobile accident. Judgment for plaintiff.

Reversed.

1. ACTIONS — Death — Damages. In an action by a husband for damages to compensate for the loss of his wife's services, companionship and society between the date of an injury incurred by her in an automobile accident and the date of her death resulting therefrom, and for expenses necessarily incurred, contention of defendant that a judgment for the death of the wife excludes the present cause of action, overruled.

Error to the District Court of Boulder County, Hon. Claude C. Coffin, Judge.

Messrs. BERMAN HOLLAND, Mr. JOSEPH N. LILLY, for plaintiffs in error.

Messrs. SMITH, BROCK, AKOLT CAMPBELL, Mr. R. A. DICK, for defendant in error.

MR. JUSTICE BOUCK delivered the opinion of the court.

THIS case is a companion to American Ins. Co. v. Naylor, ... Colo. ..., 72 P.2d 349, just decided. The latter involved a judgment in favor of the defendant in error husband for damages on account of his wife's death by the negligence of the plaintiffs in error. The present case involves a judgment in his favor for damages to compensate for the loss of his wife's services, companionship, and society between the date of her injury and the date of her death, and also to compensate for expenses necessarily incurred by him during that period for medical, hospital, and nursing services rendered to her.

Though the two cases are separate cases, they were tried together in the district court, the same briefs apply to both, they were orally argued at the same time, and all the assignments of error in the aforesaid companion case are made in this. For the reasons appearing from our opinion in that case, the judgment here must also be reversed and the case remanded for a new trial.

Additional errors have been assigned herein, challenging the right of the husband to maintain the present action, the argument being that the death statute, '35 C. S. A., chapter 50, sections 2 and 3 (Compiled Laws 1921, sections 6303 and 6304), under which the other action was instituted, excludes the cause of action asserted in the case now under consideration. There is no merit in the contention. Compare: Denver Tramway Co. v. Riley, 14 Colo. App. 132, 59 Pac. 476.

Judgment reversed.

As to the ground of reversal MR. CHIEF JUSTICE BURKE and MR. JUSTICE YOUNG dissent.