In Trujillo v. Wilson, 117 Colo. 430, 189 P.2d 147, it is said: "Error is further urged in admission of evidence and instructing the jury as to damage through loss of income by R. J. Wilson who was permitted to testify as to cost of hired help and his operations and profit the preceding season in raising turkeys and the limit imposed on such operations as a result of the accident.Summary of this case from Kaufman v. Tripple
Decided January 12, 1948.
An action for damages resulting from an automobile accident. Judgment for plaintiffs.
1. TRIAL — Stay of Proceedings — Appeal and Error. The matter of a stay of proceedings is one within the discretion of the trial court and its ruling will not be disturbed on review unless an abuse of discretion appears from the record.
2. Soldiers and Sailors — Joint Defendants. Where one of two defendants in an action for damages has special rights by reason of his being a member of the armed forces, such rights could not avail the other defendant.
3. Verdicts — Excessive — Appeal and Error. The judgment of the jury as to what is proper and just compensation in damage cases must govern, and unless the damages awarded are obviously disproportionate to the injuries sustained, its verdict will not be disturbed on review.
4. DAMAGES — Evidence. In an action for damages resulting from an automobile accident, evidence of loss of income by reason of injury to one's business is properly admitted, not as affording a measure of damages, but only as an aid to the jury in arriving at a fair and just compensation to which plaintiff is entitled.
5. AUTOMOBILES — Accidents — Measure of Damage. Where an automobile is practically destroyed in an accident, the measure of damage is the difference between its value immediately before the accident and what it was immediately thereafter, together with any expense of reasonable efforts to preserve or restore it.
6. JURISDICTION — Lack of Service — Attorney and Client. Safe practice makes it advisable that the record show formal entry of appearance by counsel in behalf of any defendant, who has not been served or filed a pleading, before judgment is rendered against him; but an attorney appearing for a party to an action is presumed to have authority therefor.
Error to the District Court of Arapahoe County, Hon. Harold H. Davies, Judge.
Mr. H. BERMAN, for plaintiffs in error.
Mr. CECIL R. DITSCH, Messrs. IRWIN O'CONNELL, for defendants in error.
R. J. WILSON and Dosia Wilson, in July, 1944, brought separate actions against Trujillo and Joy to recover damages resulting from an automobile accident, in which it was alleged that Joy's truck, driven by Trujillo in the course of Joy's business, negligently ran into a parked automobile in which these two plaintiffs were sitting; that each of the plaintiffs sustained injuries, and the car of R. J. Wilson was damaged. Originally Robert E. Joy was joined as party defendant, but at the close of the trial, apparently for the purpose of eliminating him from the case, it was stipulated by counsel that the verdicts should be entitled "Dosia Wilson, Plaintiff v. F. B. Joy, doing business as Ace Box Company, and Rudolph Pete Trujillo, Defendants," and "R. J. Wilson v. F. B. Joy, doing business as Ace Box Company, and Rudolph Pete Trujillo, Defendants."
These cases were consolidated for trial and defendants here in both cases seek reversal of adverse judgments below.
Reversal is first urged upon the ground that the trial court erred in denying the last motion for stay of proceedings and in that connection is raised the question of the sufficiency of showing to justify judgment against defendant Trujillo.
At the October, 1944, term, upon application of defendants for stay of proceedings upon the ground that Trujillo was in military service, the cases were continued until the next term of court. On February 13, 1945, further motion for stay was filed. The cases were thereafter set for trial, and on October 17, 1945, defendants' counsel filed a further motion reciting that on September 12, they had been advised by the wife of defendant Trujillo, that he was still in the Philippine Islands. Pursuant to that motion setting was again vacated and the cases reset for January 14, 1946, and heard on January 28, without further showing or objection or further motion for stay.
The answers filed by the defendant Joy merely denied the allegations of the complaint, either specifically or on information and belief.
At the outset of the trial counsel for defendants agreed that there was "no controversy as to the question of negligence; and that the only question permitted to the jury will be the amount of damages to which each of the plaintiffs may be entitled."
[1, 2] Trujillo's negligence having been admitted, the only question to be tried was the amount of plaintiffs' damages. There was no objection to trial on the date last set therefor, and no showing as to Trujillo's then prejudice by virtue of military service. There is no showing that Trujillo had any knowledge as to the amount of such damages or that, if so, his deposition could not have been taken and safely used in his behalf. The matter of a stay of proceedings is one within the discretion of the court and its ruling will not be disturbed on review unless an abuse of discretion appears from the record. Koons v. Nelson, 113 Colo. 574, 160 P.2d 367; People ex rel. v. Neary, 113 Colo. 12, 154 P.2d 48. Trujillo's rights under the Soldiers' and Sailors' Civil Relief Act could not avail the other defendant in any event. J. C. Penney Co. v. Oberpriller, 163 S.W.2d 1067. Accordingly, no abuse of discretion appears from that record.
Reversal is sought on the further ground that the amount of damages fixed in the verdicts herein are excessive. We cannot invade the province of the jury under the well-settled rule. "The judgment of the jury as to what is a proper and just compensation in such cases must govern, unless the damages awarded are so obviously disproportionate to the injuries shown to be sustained, as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case." Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632.
Error is further urged in admission of evidence and instructing the jury as to damage through loss of income by R. J. Wilson who was permitted to testify as to cost of hired help and his operations and profit the preceding season in raising turkeys and the limit imposed on such operations as a result of the accident. Such evidence was admissible. Mountain States Co. v. Sanger, 87 Colo. 369, 287 Pac. 866, and cases annotated; 122 A.L.R. 307, et seq., and prior annotations there supplemented. While such evidence is not admitted as affording a measure of damages but only as an aid to the jury in estimating a fair and just compensation for being prevented by the injury from prosecuting such work, defendant cannot here complain for the reason that no objection was made to the instruction for failure to limit the purpose of the testimony and no proper instruction was tendered to that end.
Further error is assigned to instruction of the jury that it might consider the market value of the car before and after the accident in measuring the damage thereto, when, it is urged, the car was thereafter converted into a truck and no evidence was introduced as to the difference in value between the original car before the injury and the truck after conversion. There was evidence before the jury as to the value of the car both before and after the accident. It appears from the evidence that the car was substantially destroyed as an automobile. Such being the case the measure of damage is the difference between its value immediately before its damage and immediately thereafter, together with any expense of reasonable efforts to preserve or restore it. The fact that the wrecked car was thereafter converted into a truck would not change the applicable rule as to damage, but merely go to the question of value after the injury. The instruction given by the court was correct.
Service was had on Joy in each case, but the record shows no service on Trujillo. No answer was filed in either case in behalf of Trujillo, and no formal appearance was entered in his behalf. However, appearance was made in his behalf (1) by the filing of motions by counsel for defendants Joy, who signed as "attorneys for defendants," (2) by inserting at the bottom of motions for continuance the address of defendant Trujillo, as well as that of defendant Joy, and (3) by stipulation of counsel that the verdict should bear Trujillo's name as defendant. The court apparently considered the matters above mentioned as being sufficient entry of appearance in behalf of Trujillo, and judgment was entered against him as well as Joy.
Safe practice makes it advisable that the record show formal entry of appearance by counsel in behalf of any defendant who has not been served or filed a pleading, before judgment is rendered against him; but an attorney appearing for a party to an action is presumed to have authority therefor. In the instant case not only did counsel appear in behalf of defendant Trujillo in the trial court, although informally, but he also appears for him in bringing error in this court; and after challenge as to appearance in the answer brief, counsel for defendants specifically declares that appearance was made in behalf of Trujillo in the trial court. While the record is unsatisfactory as to Trujillo, there is no motion or request before us to vacate the judgment as against him; the declaration of counsel as an officer of the court must be given credence and in the absence of further showing the judgment against Trujillo should not now be vacated. Had request for such vacation been made in Trujillo's behalf with allegation of lack of service and authority, a different situation would arise.
We have considered the other specifications urged for reversal and find them without merit.
MR. JUSTICE HILLIARD dissents.
MR. JUSTICE ALTER dissents only as to judgment against defendant Trujillo.