Opinion
Sept. 6, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 139
Frickey, Cairns & Wylder, P.C., Earl S. Wylder, Denver, for plaintiff-appellee.
Richard A. Anderson and Bailey A. Belfor, Lakewood, for defendant-appellant.
SMITH, Judge.
Daniel B. Niccoli filed a complaint asserting separate claims for relief against Jose R. Ayala and Robert E. Wadlow. Plaintiff claimed he was first injured on December 25, 1969, when, as he was sitting in his parked car, it was hit from the rear by an automobile driven by defendant Ayala. Plaintiff, in his second claim, asserted that he was again injured on February 26, 1970, when, in an incident unrelated to the accident with Ayala, his automobile was struck by a vehicle driven by Wadlow. A motion was made by defendant Ayala to sever the claim against him from the claim against Wadlow. The trial court granted the motion. Subsequently, plaintiff's claim against Wadlow was compromised for the sum of $1,900 and that claim was dismissed without prejudice.
Defendant Ayala answered, admitting that his vehicle was 'involved' with plaintiff's vehicle, denying all other assertions of the complaint and alleging contributory negligence as an affirmative defense. More than three months before trial, defendant filed a motion for leave to file an amended answer, alleging that information necessary to assert certain affirmative defenses was not available at the time of the preparation and filing of the answer. Defendant proposed amendments to his answer, consisting of a 'fourth defense' and a 'fifth defense.' The trial court granted defendant's motion for leave to file an amended answer as to the 'fifth defense' only. Subsequently, prior to trial, the court granted plaintiff's motion to strike the contributory negligence defense and the 'fifth defense.' After trial, at the conclusion of all the evidence, the court directed a verdict for plaintiff on the question of liability, and the jury assessed damages in the amount of $6,500. Defendant appeals, asserting several grounds of error. We affirm.
I.
Defendant contends initially that it was error for the court to have denied his motion to amend his answer as to the 'fourth defense' and to have later granted plaintiff's motion to strike the 'fifth defense.' Defendant's proposed 'fourth defense' asserted that plaintiff's injuries were severely aggravated by the subsequent accident with Wadlow and that plaintiff's injuries sustained from the first automobile accident were not apportionable from those of the second accident. This proposed defense further alleged that plaintiff executed a covenant not to sue with Wadlow for a consideration of $1,900, and executed a release which discharged both Wadlow and the defendant. Defendant asserted that because of the $1,900 settlement, plaintiff had received a complete and total satisfaction for his injuries. Defendant's proposed 'fifth defense' alleged that any judgment asserted against defendant had been satisfied to the extent of $1,900, and that he was therefore entitled to a 'set-off' against any judgment which might be rendered against him.
Defendant relies on C.R.C.P. 15, which sets forth the conditions under which a party may amend his pleading. After the filing of a responsive pleading, the allowance of an amendment to an answer under C.R.C.P. 15 is not subject to review except for abuse of discretion. Board of County Commissioners v. Bullock, 122 Colo. 218, 220 P.2d 877. Where a proposed defense is so legally insufficient as to be immediately susceptible to a motion to strike or a motion to dismiss, leave to amend may properly be denied on that basis. Proie Brothers, Inc. v. Proie, 301 F.Supp. 680 (W.D. Pa.). See 3 J. Moore, Federal Practice 15.08(4) (2d ed.)
We have examined the 'covenant and agreement not to prosecute, execute, or sue further' entered into by Daniel B. Niccoli and Robert E. Wadlow. By the terms of this agreement, the claim of Niccoli was to be dismissed without prejudice as to his claim against the defendant Wadlow. The agreement expressly provided that it should not be construed to release any tort-feasor or in any way to restrict plaintiff from pursuing his claim against any other defendant. The terms of the agreement, therefore, in no way support the defendant's assertions made in his 'fourth defense.' Defendant's theory is that since the injuries were not readily apportionable between the first and second automobile accidents, the settlement with Wadlow fully compensated plaintiff for all of his damages, irrespective of who caused them. Whether or not damages can be apportioned between the two accidents, the present defendant, Ayala, cannot be held liable for the plaintiff's subsequent injury. Bruckman v. Pena, 29 Colo.App. 357, 487 P.2d 566. Plaintiff had a separate cause of action against each defendant. The fact that the plaintiff had settled with Wadlow as to a completely unrelated accident cannot reduce the liability of Ayala in the present instance, nor can any such settlement be properly considered for any 'set-off' purpose.
We find the defendant's proposed 'fourth defense' and 'fifth defense' were not statements of legally sufficient defenses. Both were susceptible to a motion to strike, and, therefore, the trial court's denial of leave to amend by insertion of the 'fourth defense,' and its subsequent granting of the plaintiff's motion to strike the 'fifth defense,' were proper. The inability of Ayala to assert these defenses did not preclude him, however, from introducing evidence of subsequent injuries to plaintiff insofar as such evidence might aid in determining what injuries, if any, resulted from the earlier collision. Bruckman v. Pena, Supra.
II.
The defendant next asserts that the giving of certain instructions was error because the court did not direct the jury to separate damages sustained in the first accident from damages sustained in the second accident, and because it failed to instruct the jury as a matter of law that the second accident caused aggravation of injuries sustained in the first accident. In determining their applicability and correctness, individual instructions cannot be read and construed in a vacuum as abstract statements of the law. Rather, they must be considered together with, and as a part of all, the other instructions to see if, taken as a whole, they correctly advised the jury of the law applicable to the case on trial. Nelson v. Nelson, 27 Colo.App. 104, 146 P. 1079.
Upon a reading of all the instructions given, we conclude they contain no error. They clearly delineate between the first and second accidents, and make it quite clear that damages may be awarded only for injuries proximately caused by the defendant Ayala's acts in relation to the first accident. The instruction concerning apportionment of damages between a preexisting condition and the present condition was carefully limited to the first accident and to conditions in existence prior to that accident. This instruction was supported by the evidence.
III.
Defendant argues that a police officer's identification of Ayala as the driver of the vehicle involved in the accident was insufficient evidence upon which to direct a verdict on liability. We find no valid objection to the police officer's testimony, and no evidence was offered to refute the officer's assertion that Ayala was the driver of the vehicle causing the accident. The trial court's determination to direct a verdict of liability is supported by the record, there being no controverted question of fact raised by the evidence on that issue. That ruling, therefore, will not be disturbed. Candell v. Western Federal Savings and Loan Association, 156 Colo. 552, 400 P.2d 909.
IV.
The remaining allegations of error relate to matters within the sound discretion of the trial court, and the record discloses no abuse of that discretion. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.