Parker v. Plympton , 85 Colo. 87 ( 1928 )

Mr. Justice Adams

delivered the opinion of the court.

Anna Plympton, defendant in error, is the widow of Hercules Plympton, deceased. She recovered judgment on a directed verdict against Paul Parker and John M. Beckman, on the account of the death of her husband, caused by the- negligence of defendants. Parker brings the case here to obtain a reversal, hut Beckman has not come to this court. When not otherwise designated, we shall refer to the parties as aligned at the trial, Mrs. Plympton as plaintiff and Parker as defendant.

Hercules Plympton was a passenger in the rear seat of an automobile driven by defendant Beckman. Parker, the other defendant, owned and drove another car. The cars collided at the intersection of two streets in Colorado Springs, and the Beckman car was overturned. As a result, Plympton received injuries from which he died a few days later. It was the same collision in which one Ullom was killed, by reason of which his widow recovered judgment against the same defendants, reported in Parker v. Ullom, 84 Colo. 433, 271 Pac. 187, opinion by Mr. Justice Butler. Both cases were tried at the same term of court, and before the same trial judge. The same attorneys appear in both cases. The record in each case shows that the defendant Parker admitted his negligence, before either suit was brought. This fact was not mentioned in our opinion .in the Ullom case. It was affirmed on other grounds, but it is a fact of importance, especially here. Because of such admission, and because the same acts of negligence gave rise to both causes, details that otherwise might be stated, will he omitted.

The evidence concerning defendant’s admission of negligence appears from the testimony of Thomas L. Eeasoner, a witness for plaintiff, and from defendant’s cross-examination. Eeasoner was a juror at a coroner’s inquest over the body of Hercules Plympton, deceased. Eeasoner testified to effect that he had had a conversation with Parker shortly after the inquest; that he (Eeasoner) made the statement that the coroner’s jury brought in a verdict against both of them (meaning Parker and Beckman), on account of Parker’s own statement of the speed that he was maintaining, also that he had gone on the highway with the vision obstructed. The witness further said that Parker made the statement that he thought he was driving “excessive,” that he could not see to the left, and that he was perfectly satisfied with the verdict of the coroner’s jury. At the trial in this case, Parker testified that he “might have said” that he was negligent or careless but “did not think” he was careless, but he also said (found in another place in the record), that he “did not think” he said that which Eeasoner declared he (Parker) said.

Plaintiff’s proof of damages shows that she is the widow of deceased; that decedent was an able bodied man, forty years of age, in good health, a laborer working for the Denver and Eio Grande Eailroad at ninety dollars per month. He left surviving him, his-widow, and three small children, aged twelve, eleven and six, respectively. At the time of the trial, the widow was working in a laundry, and two of the children were with relatives. This evidence was uncontradicted.

1. First, as to defendant’s negligence: His culpability appears conclusively from the evidence. Eeasoner’s testimony, above referred to, is positive and unequivocal, and defendant admits that ‘ ‘he might have said it. ’ ’ This is enough. We do not consider the force of the admission weakened by his statement in another place, that he “did not think” he said it. It merely showed evasion, and at best, from his own standpoint, an- attempt to weaken his previous admission by further lack of positiveness, but Reasoner was positive and convincing. We remark on the appalling consequences of the collision, the death of two men. Defendant’s admissions were made after the coroner’s inquest, and after he had had time to think the matter over. In a matter of such grim fatality, and after time for reflection, it is incredible that he should not know whether he said it or not. Plis failure to deny, when pressed for an answer, was equivalent to an admission. If the case had gone to the jury, and if they had found him guiltless in the face of his half-hearted, but nevertheless convincing admissions, we should unhesitatingly direct that the verdict be set aside. The verdict in Parker v. Ullom, supra, is of course not binding on him here, but we refer to it as an additional corroboration, whether required or not, that his acts were such that the judgment of men cannot reasonably differ as to the fact of his negligence. The details of such negligence were related by other witnesses for plaintiff. The evidence is such that it is impossible to see how any reasonable man could doubt defendant’s guilt, or reach a different conclusion. Defendant’s admission was not overshadowed in the slightest by the evidence of his other witnesses, even if it should be conceded that an attempt thereat was allowable.

Speaking of directed verdicts in Neal v. Wilson County Bank, 83 Colo. 118, 122, 263 Pac. 18, we said: “It may be the duty of the court to take such a step, and it was so here. The facts in this case were such that reasonable men could draw but one inference from them. It became a matter of law for the court.” The same language is applicable to this case.

2. As to damage: Defendant assigns error .on the ground that “The verdict is unsustained by any evidence of actual pecuniary damage to defendant in error!” We have stated above the material parts of the evidence as to the domestic relations of deceased. In support of the above assignment, defendant’s counsel urge that the evideuce does not show how much of Hercules Plympton’s wages, if any, he contributed to the support of his family, but if he gave them nothing, he could have been compelled to support them if he were alive, but now the family’s future sustenance from his wages is gone forever. It does not require the calculation of a jury to determine how long ninety dollars per month for a wife and three small children would last, if the full amount had been brought home. Under the table in section 6537, C. L. 1921, deceased had an expectation of 28.18 years more of life. We think that the statutory limitation of five thousand dollars was not too much. The evidence of plaintiff’s damage was ample, and being uncontradicted, it became a matter of law for the court.

3. Plaintiff and defendant each moved for a directed verdict. The court thereupon took the case from the jury, and directed judgment for plaintiff. Was this reversible error? We give the answer in the language of the last eight decisions of this court on the point.

In McGhee Inv. Co. v. Kirsher, 71 Colo. 137, 139, 204 Pac. 891, we said: “The next contention is stated as follows: ‘In any event there were certain clear cut questions of fact for the determination of the jury.’

“The conflict in the evidence was upon immaterial matters, but if the situation were otherwise, which may be assumed, there was no error of which plaintiff can complain. Both parties moved for a directed verdict, and neither can now insist, that the case should have gone to the jury.” • '

Cascade Auto Co. v. Petter, 72 Colo. 570, 572, 212 Pac. 823: “A request by each party for a directed verdict is equivalent to a stipulation that the facts may be found by the court. The court’s finding, thereupon made, is conclusive if there is evidence to support it.”

Boldt v. Motor Securities Co., 74 Colo. 55, 56, 218 Pac. 743: “Defendant complains because certain questions were not submitted to the jury. His own motion for a directed verdict, added to that of plaintiff, disposes of this objection. They constitute a waiver of his right to go to the jury on the facts.”

Commonwealth Casualty Insurance Co. v. Kuhrt, 75 Colo. 175, 177, 225 Pac. 251: “Both sides moved for a directed verdict. The court sustained 'the motion of the plaintiff, and held that an oral contract had been established by the evidence, and directed a verdict for plaintiff in the sum of $5,000. Such finding has the effect of a general verdict. ’ ’

Catlin v. Moynihan, 76 Colo. 164, 230 Pac. 1114: “We said, in Auto Co. v. Petter, 72 Colo. 570, 212 Pac. 823, that ‘a request by each party for a directed verdict is equivalent to a stipulation that the facts may be found by the court. The court’s finding, thereupon made, is conclusive if there is evidence to support It.’ .There was some conflict in the testimony, but there was abundant evidence to justify the finding in favor of plaintiff below. ’ ’

Butts v. Sauve, 79 Colo. 317, 318, 245 Pac. 713: “At the close of the evidence both sides moved.for a directed verdict, which, under our decisions, left the case to the court. ’ ’

McLagan v. Granato, 80 Colo. 412, 415, 252 Pac. 348: “Each side moved for a directed verdict. We have several times held that this amounted to a submission of the case to the court (Butts v. Sauve, 79 Colo. 317, 245 Pac. 713; McGhee Inv. Co. v. Kirsher, 71 Colo. 137, 204 Pac. 891), and so it is now claimed that the verdict and the judgment thereon are invalid, but, since both sides went to the jury without objection on this score, we think neither has ground to complain.”

Watkins v. Security Benefit Ass’n., 81 Colo. 66, 68, 255 Pac. 452, contains a good summary of the foregoing in the following language: “It is settled in this jurisdiction that the effect of the motions by plaintiff and defendant [for a directed verdict] was a submission of the cáuse to the court.”

Surely, language could not be made plainer 'than in the above opinions. Nevertheless, counsel for defendant argue a proposition that we quote from the words of their opening brief, as follows: “The defendant, Parker, contends as already set forth in this brief, that he was entitled under the law and the evidence to a directed verdict in his favor; but if it should be decided that he was not so entitled, then certainly he was at least entitled to a submission of the issues of fact to a jury.”

The question now is, was the defendant entitled to a submission of the issues of fact to the jury? The situation will be better understood by a further brief reference to the facts. At the close of the testimony, plaintiff and defendants severally moved for a directed verdict. The trial judge thereupon indicated to counsel that the legal effect of these motions from both sides, was to submit the cause to the court for determination, but counsel for defendant Parker argued that if the court should overrule his motion, he still had the right to a submission of the issues of the case to the jury, and that he was making the motion with this reservation. The court answered “no” to this, and inquired if defendant wished to withdraw the motion with the qualifications indicated. Defendant’s counsel answered that he did, but continued to argue the point. The court then declined to allow defendant to withdraw his motion for a directed verdict, and proceeded to overrule such motion. Counsel for defendant Parker then made the' following request, ore terms:

“May I ask at this time, on behalf of the defendant Parker, that the Court submit to the jury in this case the issue as to whether or not the defendant Parker was guilty of negligence proximately causing the death of the decedent, Hercules Plympton, and also that the Court submit to thé jury for its determination the issue as to whether or not, either by virtue of independent negligence on the part of Plympton himself, as one of those riding in the Beckman car, or by virtue of the existence of a joint enterprise in which they were all principals and agents of each other, the decedent Plympton was guilty of contributory negligence; and further, that the Court submit to the jury, if your Honor please, the issue as to whether or not the plaintiff in this case has been damaged under the evidence to the extent that is claimed by her.

‘ ‘ The Court: The request is denied.

“Mr. Hutton: “Save my exception.”

The above quotation contains all of the issues of fact in the case from defendant’s standpoint, some of which were disputed issues, and others not, which we mention hereafter. After the above request was denied, the court found that decedent Plympton was not guilty of contributory negligence, and directed a verdict for plaintiff in the sum of five thousand dollars. Judgment was accordingly entered.

4. Concerning defendant’s right to a jury trial, and waiver thereof: As applied to this case, it is wholly a question of our local practice and procedure, and is covered by our Code of Civil Procedure, and our rules, as announced in the above decisions.

“Under our Constitution, trial by jury in a civil action or proceeding is not a matter of right, but our general assembly may provide for it.” Kahm v. People, 83 Colo. 300, 303, 264 Pac. 718; Miller v. O’Brien, 75 Colo. 117, 118, 223 Pac. 1088; Londoner v. People, 15 Colo. 557, 570, 26 Pac. 135; Corthell v. Mead, 19 Colo. 386, 388, 35 Pac. 741.

The legislature has provided for jury trials in certain cases. Section 191 of the Colorado Code of Civil Procedure provides that “In actions for * * * injuries,, an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is ordered as provided in this Code.” And, since the general assembly may provide for a trial by jury in civil cases, it may also provide how such trials may be waived. It has done so. Session Laws 1887, page 153, § 178, Code of Civil Procedure, 1921, section 196, reads: ‘ ‘ Trial by jury may be waived by the several parties to an issue of fact, with the assent of the court, in the following manner: First — By failing to appear at the trial. Second — By written consent, in person or by attorney, filed with the clerk. Third — By oral consent, in open court, entered in the minutes. The court may prescribe, by rule, what shall be deemed a waiver in other cases.”

It is the last sentence in the above section 196 that is applicable to the rule of waiver in the present case. The rule prescribed, pursuant to authority, is stated in the excerpts from the eight opinions above quoted.

By a later legislative enactment, not repealing the above, but bearing further on the rule making power of the courts, Session Laws 1913, page 447, § 1, Code of Civil Procedure, 1921, section 444, it is provided: ‘ ‘ The supreme court shall prescribe rules of practice and procedure in all courts of record and may change or rescind the same. Such rules shall supersede any statute in conflict therewith. Inferior courts of record may adopt rules not in conflict with such rules or with statute.”

The last two sections quoted are legislative recognition of the inherent power of the court to make rules of practice and procedure, without which the court could not adequately function. Many of our rules of practice and procedure are printed in a separate book, appropriately labelled, and distributed free to the attorneys practicing before this court. But a vast number of such rules are' contained in the printed reports of our decisions, promulgated as justice demanded, and when the occasion therefor arose. Manifestly they are too numerous to make it possible to put them all in one book, but they are as binding as if they were all contained between two covers,' and there should be no misunderstanding as to the meaning of the one stated as often as this has been.

5. Prior to the determination of the cases reported in the above eight opinions, there are three others on which we shall now offqr comment. They are Nisbet v. Siegel-Campion Co., 21 Colo. App. 494, 516, 123 Pac. 110; Saxton v. Perry, 47 Colo. 263, 267, 268, 107 Pac. 281; O’Brien v. Galley-Stockton Co., 65 Colo. 70, 72, 173 Pac. 544. They are relied upon by defendant. We quote from page 72 of the O’Brien case, supra: “Since both parties, at the close of the testimony, moved for a directed verdict, and neither of them, after a ruling on such motions, requested the submission of any question of fact to the jury, the decision of the trial court has the effect of a general verdict.”

Language similar to the above will be found in the two other early cases above, but it is omitted from our last eight decisions. It thus not only affirmatively appears from the above three earlier opinions on which defendant relies, but also from the records therein, which we have recently examined, that no request was made on either side to submit questions of fact to the jury. And so, whatever views the court may have then entertained if such request had been made, is neither here nor there. Merely incidental remarks of the court on questions not before it for determination, are not to be taken as precedents. Young v. People, 54 Colo. 293, 307, 130 Pac. 1011. And where decisions are conflicting, the latest govern. Baker v. Sockwell, 80 Colo. 309, 315, 251 Pac. 543. On the other hand, counsel for defendant point out, and rightly, that in the first eight cases mentioned, it does not appear that any fact question was offered for submission to the jury after the ruling on motions for directed verdict, or before. It may therefore be true that the idea of submitting all questions of fact to the court, and reserving them all for the jury (we comment on this anomaly later), is a novelty in this state, or at least it has not been argued before as ably as here. We have decided, however, in London Guarantee Accident Co. v. Officer, 78 Colo. 441, 445, 242 Pac. 989, that “The submission of special interrogatories rests in the sound discretion of the court.” We repeat it, with the statement that the court did not abuse its discretion, and that under the facts here presented, it would have been an abuse of discretion to have granted it.

6. An accurate portrayal of our views is found in the following quotation from Saxton v. Perry, supra, at page 268 of the opinion:

“In the case of Michigan Home Colony v. Tabor, 141 Fed. 332, that court, speaking through United States Circuit Judge Adams upon this proposition, said this:

“ ‘The rule is firmly established that when each party to a cause on trial before a jury requests a peremptory instruction in his favor, he thereby consents that the court shall find the facts on the issues joined. The law impresses upon the finding so made all the incidents of a general finding by the court in a case submitted to it after waiver of a jury by the parties. In such case the appellate court does not consider the weight of evidence. The only questions for review, beside the sufficiency of the pleadings to support the judgment, are whether there is any substantial evidence to support the finding and whether there was reversible error committed in the admission or rejection of evidence.’

“This principle is supported by a mass of cases, both from the federal and state courts, from among which we cite the following:” (Citing many cases.)

We have not departed from the application of the above principles in any case where they were involved, since the rule was first announced in Saxton v. Perry, supra, eighteen years ago. We will not abandon them now. Particularly in our last eight opinions above referred to, no reference will be found to the feature on which counsel for defendant here relies, but to which we are unable to agree. We are not passing on federal rules of practice, except to the extent that we have made them our own by adoption. -Subsequent changes by those courts, or different applications of their own rules are their own concern. Our attitude of deference toward the rules of practice in other jurisdictions, is set forth with more particularity in the twelfth paragraph of this opinion. The incidental remarks in Saxton v. Perry about more fact questions for the jury after the case has been submitted to the court, are not supported by the quotation from the federal case on the same page of the opinion in Saxton v. Perry, nor are they germane to either case. An exhaustive review of the other cases there cited would be an unnecessary duplication of our work. "We feel that we have done enough in re-expressing our positive convictions in regard to our own rules, and assembling them here in one opinion for future guidance.

7. Mathematically, counsel for defendant is wrong. The whole is equal to the sum of its parts. Counsel’s motion for a directed verdict was directed to what? This point is touched on lightly in the argument, if not altogether ignored. It was a motion for a directed general verdict on the general issues, sometimes called the “case at large.” It was all embracing as to all material facts, which the court was required to weigh and consider in passing on the motion. Counsel for defendant based his motion on the evidence, and stated much of it at length. There was nothing left. ■ The motions of both parties were equivalent to a stipulation that the evidence was undisputed, or at least that it was so clear and convincing that reasonable men could draw only one inference from it, so that it thereby became a matter of law for the court. The “sum of its parts” consists of precisely the same things that the defendant’s counsel would have us suppose they reserved for the consideration of the jury. In other words, if their argument is to be adopted, we must hold that they submitted the entire case to the court and reserved the entire case for the jury. But this is offensive to one’s intelligence. It is barely possible that defendant’s advocates may have become unnecessarily confused, unconsciously, no doubt, over a matter of fractions. It is understandable, for instance, how the parties might definitely agree to submit, say one out of four fact questions to the court, and have three left, but this is not such a case, and it is not demonstrable to us that they may submit four out of four to the court, aud have four, or any number, left for the jury.

8. It is contended that defendant’s counsel did not intend to submit the whole case to the court. Granting for the sake of the argument that they did not so intend, the only alternative is a worse intention, namely, to file an experimental or will-o’-the-wisp motion, that is, to trifle with the court, after giving the trial judge their confidence by proffering all the facts to him for determination, and when not suited with his decision, to withdraw the motion, demand a retraction of the court’s ruling on penalty of having the case reversed, and confidently submit the same issues to the jury in the hope of a more .fortunate outcome. They cannot thus usurp the prerogatives of the court. Such gestures are incompatible with the solemnity of judicial forums, where substantial justice must be done, nor can plaintiff’s rights be made a mere pawn in a game. To make it plainer, if possible, defendant cannot file a motion that shall stand only while it burns plaintiff, but that may be withdrawn the minute it becomes apparent that it may scorch its author. Such practice would render judicial proceedings farcical.

9. It was not error to refuse defendant the right to withdraw his motion for an instructed verdict. At the trial, one of his counsel stated that he wished to withdraw it, but continued to argue the point. His actions spoke louder than words. They speak louder even now in his first assignment of error, “That the trial court erred in denying defendant Parker’s motion for a directed verdiet in his favor, made at the close of all of the evidence in the case.” This is argued in the briefs as a ground for reversal. It is noteworthy that defendant complains because the court did not pass favorably on his motion for a directed verdict, and also because he was not allowed to withdraw it. Plainly, they are inconsistent. The court could not have done both. Counsel’s persistence in two courts in an .effort to uphold his motion, is not a withdrawal, nor is it an attempt to withdraw. It is holding fast to it. Whether or not permission to withdraw a motion may he said: to rest generally in the sound discretion of the court, it cannot be done as a matter of right when it works an injury to the opposite party, or disrupts procedure, or where it amounts to an imposition on the court to grant it. In the present case, it was the duty of the court to let the motion stand with all its consequences.

10. Considering the matter from the standpoint of a stipulation (the language used in Cascade Auto Co. v. Petter, supra): Counsel for defendant insist that it was not a stipulation in the present case because of their “reservations,” but we do not permit reservations to our rules without our consent. Changes therein, addenda or amendments thereto, if any, must be made by this court. All we have done is to erase and treat as surplusage counsel’s interlineations, not found in such rule. The rule is a privilege. It was optional with the parties to invoke it, but having done so, they did it at their peril, plaintiff and defendant alike, and they must take it as it stands, unless the parties mutually agree to waive its effect, with the sanction of the court. But here, the plaintiff did not relinquish her claim to the full force of the rule, and the court, very properly, did not abrogate it. The only instance we find in our reports where it was avoided, was by consent. This will be found in McLagan v. Granato, supra, opinion by Mr. Justice Denison. There, after each side moved for a directed verdict, and the motions were denied, they both went to the jury without objection, and it was naturally held that neither had ground to complain.

11. The judgment is right for another reason: As we have shown, the questions of Parker’s negligence and defendant’s damage were not jury questions under the facts of the case. Contributory negligence by Hercules Plympton, who rode on the back seat of one of the wrecked automobiles, was pleaded but not proven. The question, of a joint enterprise, has been fully disposed of adversely to the contention of Parker’s counsel in Parker v. Ullom, supra. The law of that case is the law here on this point. All these things beggar defendant’s plea concerning the facts that he wanted the jury to pass upon, in any event. ' And aside from all technicalities, none of which are favorable to defendant, the merits of the case must not be lost sight of, the fact that plaintiff has been widowed by defendant’s negligence, and her three small children made fatherless. This is the prodigious feature of the case.

12. Numerous decisions from other jurisdictions are cited, but in none of them are the essential circumstances on which the motions were based, like the ones now before us. Our attention is not called to any case where the defendant admitted negligence, did not rebut proof of injury and damage, and after all facts had been submitted to the court by acts amounting to a stipulation, asked to have it reversed because the court pronounced judgment.

As to decisions in other jurisdictions, we further remark, that while we profoundly respect the decisions of other courts, matters of practice and procedure are almost universally governed by the law of the forum. This is so even when the substantive laws of different states are involved, and is decidedly so when the whole matter, substantive and procedural, lies within our own boundaries.' This rule of comity is made imperative by the divergent rules, codes and statutes of different jurisdictions. To illustrate: An Act of Congress, U. S. Rev. Stats, sections 648 and 649, refers to jury trials in United States Circuit Courts, and how the right may be waived. How long the law remained in force is unimportant. Now, the Federal Judicial Code affords further opportunity for study. So as to the several states. But the point is that as to practice and procedure, they are separate and independent; the statutes color state and federal decisions, and properly so. If it were possible to read them all, we should he compelled to come back to Colorado to determine our own rules. With different laws coupled with different states of facts, they cannot always be said to contain enough family resemblance to establish a relationship with our system. We are therefore forced to decline excursions into foreign jurisdictions. As to the law of the forum, see 12 C. J. 484, citing Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104. That the rules of practice in other jurisdictions may be well worthy of emulation, is true. We have frequently had recourse to them when required. We did so as to this very matter in Saxton v. Perry, supra. But we will not change ours with nunc pro tune effect to fit a case after it is over, nor merely because of subsequent modifications, if any, in other jurisdictions. If the one with reference to waiver of jury trials is considered as being subject to improvement, such arguments should be addressed to our rules committee for recommendation, but we regard it as a most salutary provision, and particularly as applied to this cause.

13. It may be wondered, and no doubt with reason, why we have taken such pains to demonstrate a rule that has been announced as often as the one under discussion. We have done so because of the undoubted sincerity of counsel for defendant who are dissatisfied with the trial court’s application of it, and also because of the inability of some of the justices to agree with our opinion. We have therefore traced the rule to its source, and explained the reasons for it. We have also gone back to the records — to the transcripts — in each of the eleven Colorado cases referred to, and examined them. As a result, we are better satisfied than ever that the rule has been rightly applied. We held in Butts v. Suave, supra, that “If a plaintiff has no case, it would be useless to require the defendant to proceed. ’ ’ The same principle is applicable when it has been proven, as here, that the defendant has no valid defense.

We have not exhausted our reasons, for the affirmance of the judgment, but we think that we have stated enough. We see no possible defense that defendant Parker’s able counsel have overlooked, but we find no error in the record, and the judgment will therefore be affirmed.

Me. Chief Justice Denison and Me. Justice Butlee dissent.

Me. Justice Altee, having presided at the trial, did not participate.