Volume 165 — Colorado Reports

1. <bold>PARTNERSHIP</bold> — <italic>Receipt — Share of Profits — Evidence — Partner —</italic><italic>Statute.</italic> C.R.S. 1963, 104-1-7(5)(a) makes receipt of a share of the profits of a business prima facie evidence that the person receiving it is a partner. 2. <italic>Profits — Rental Property — Exception — Rent — Statute.</italic> The mere fact that profits which co-owners of apartment building had agreed to share equally came from rental property did not negate a partnership relation and bring it within exception contained in C.R.S. 1963, 104-1-7(5)(c) as "rent to a landlord." 3. <bold>TROVER AND CONVERSION</bold> — <italic>Damages — Furniture — Household — Goods —</italic><italic>Liability — Instructions — Elements — Finding — Support — Evidence.</italic> In action by tenant against co-owners of apartment building and their agent for conversion of furniture, household goods and personal effects, record reflects ample evidence to support finding by jury that each of the elements required for liability under the instructions given — with reference to conversion, partnership relation at time of conversion, and commission of conversion by one of partners acting in scope of partnership business — was present.<page_number>Page 19</page_number> 4. <italic>Agent — Partners — Apartment House — Participation — Conflict in</italic><italic>Testimony — Jury — Review.</italic> Conflict in testimony as to whether agent of co-owners of apartment building in which tenant's personal property was converted participated in the alleged conversion was for the jury to decide; and its verdict in favor of tenant and against agent will not be disturbed on review. 5. <bold>WITNESSES</bold> — <italic>Use of writing — Aid to Memory — Discretion.</italic> Considerable discretion is allowed trial court in determining whether a witness should be allowed to use his writing as an aid to his memory. 6. <italic>Conversion — Testimony — Tenant — Co-owners — Agent — Damages —</italic><italic>List — Items — Refreshing Present Recollection — Aid — Discretion —</italic><italic>Propriety.</italic> In action for conversion by tenant against co-owners of apartment building and their agent, trial court did not err in allowing tenant to testify as to her damages by reading from a prepared list; use of such list in instant case comes within rule permitting use of a writing by a witness to refresh his present recollection; and under the circumstances, it was not an abuse of discretion to allow tenant to use the list initially as an aid to her testimony. 7. <bold>EVIDENCE</bold> — <italic>Plaintiff — Testimony — Value — Conversion — Competency.</italic> A plaintiff, as owner of converted personal property, is competent to testify as to the value of such property over the objection that the valuation was "pure speculation and conjecture." 8. <italic>Conversion — Cost — Household Goods — Proof — Jury — Value — Time</italic><italic>of Loss.</italic> In action for conversion, cost of household goods may be shown in connection with other things to enable the jury to infer the value of goods at the time of their loss or destruction. 9. <bold>TROVER AND CONVERSION</bold> — <italic>Measure of Damages — Value of Property — Time</italic><italic>of Act.</italic> In an action for conversion, the measure of plaintiff's damage is the value of the property at the time of its conversion. 10. <bold>DAMAGES</bold> — <italic>Estimates — Conjecture — Value — Negative.</italic> Estimates of value which are merely vague conjectures do not prove value. 11. <italic>Exemplary — Compensatory — Relationship.</italic> Exemplary damages must bear a reasonable relation to compensatory damages.<page_number>Page 20</page_number> 12. <italic>Exemplary — Compensatory — Relationship — Verdict — Separately</italic><italic>Stated — Basis — Reasonableness.</italic> The rule that exemplary damages must bear a reasonable relation to compensatory damages requires that a verdict for exemplary damages be separately stated in order to provide a basis for determining its reasonableness. 13. <bold>TROVER AND CONVERSION</bold> — <italic>Verdict — Single Sum — Allocation — Damages —</italic><italic>Compensatory — Exemplary — Treatment.</italic> A verdict for a single sum in a conversion action, with no allocation between compensatory and exemplary damages, necessitates treating such entire amount as compensatory. 14. <bold>APPEAL AND ERROR</bold> — <italic>Value — Conversion — Specific Sum — Jury — Verdict —</italic><italic>Greater Amount — Damages — Setting Aside Verdict — Remand.</italic> Where plaintiff's estimate of value in a conversion action was a specific sum and the jury brought in a verdict for a greater amount, <italic>held</italic>, under such circumstances, the jury's verdict cannot stand and must be set aside as to amount of damages only and cause must be remanded for new determination of damages. 15. <bold>LANDLORD AND TENANT</bold> — <italic>Rent — Month — Jury — Failure to Find — Appeal</italic><italic>and Error.</italic> Where jury failed to find that tenant suing co-owners of apartment building and agent for conversion of furniture, household goods, and personal effects owed at least a particular sum for a month's rent, <italic>held</italic>, such failure on part of jury constituted error in view of uncontroverted evidence that tenant did owe at least that particular sum for month in question. 16. <bold>TROVER AND CONVERSION</bold> — <italic>Damages — Interest — Legal Rate — Value — Time.</italic> One whose property is converted is entitled, as part of his damages, to interest at the legal rate from the time of conversion on the amount found to be the value of the property converted.

1. <bold>RAPE</bold> — <italic>Forcible — Lapse of Time — Date of Offense — Date of Guilt — Due</italic><italic>Process — Denial — Negative.</italic> In prosecution for forcible rape, lapse of time between date of offense and date upon which defendant's guilt was determined by verdict of jury — a delay of eight and one-half years — did not amount to a denial of due process of law under the circumstances disclosed by the record. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Right to Speedy Trial — Delays — Circumstances —</italic><italic>Defendant — Public — Rights.</italic> The right to a speedy trial is necessarily relative and is consistent with delays and depends upon circumstances; it secures rights to a defendant but <italic>it does not preclude the rights of public</italic><italic>justice.</italic> 3. <bold>WITNESSES</bold> — <italic>Rape — Identification — Evidence — Admissibility —</italic><italic>Courthouse — Judge — Persons — Credibility — Trial.</italic> Trial court did not err in admitting evidence tending to prove that defendant was identified by victim of rape shortly after the date of the crime, which identification was made at the courthouse in the presence of a judge and other persons;<page_number>Page 64</page_number> such evidence was properly admitted as bearing upon the credibility of victim's identification of defendant at the trial. 4. <bold>CRIMINAL LAW</bold> — <italic>Rape — Statements — Defendant — Officers — Arrest —</italic><italic>Evidence — Admissibility.</italic> In prosecution for forcible rape, trial court did not err in admitting in evidence the statements made by defendant to arresting officers immediately following his arrest which occurred within two hours of the offense. 5. <bold>COURTS</bold> — <italic>Rape — Hearing — Confession — Voluntariness — Compliance —</italic><italic>Requirements — Escobedo Case.</italic> In prosecution for forcible rape, record reflects that trial court conducted a hearing outside presence of jury to determine whether defendant's confession was voluntarily made, and specifically found that all requirements of the United States Supreme Court case of <italic>Escobedo v. Illinois</italic> were met. 6. <bold>RAPE</bold> — <italic>Forcible — Confession — Admissibility — Propriety.</italic> In prosecution for forcible rape, reviewing court is of the view that there is no merit to the argument that defendant's confession was erroneously admitted. 7. <bold>COURTS</bold> — <italic>United States Supreme Court — Miranda Case — Inapplicable.</italic> The United States Supreme Court case of <italic>Miranda v. Arizona</italic> is not applicable to a case tried prior to the announcement of that decision. 8. <italic>United States Supreme Court — Miranda Case — Confessions — Rules —</italic><italic>Retrospective — Negative.</italic> Rules governing admissibility of confessions as outlined in the United States Supreme Court case of <italic>Miranda v. Arizona</italic> are not retrospective in operation. 9. <bold>RAPE</bold> — <italic>Forcible — Jury — Law — Proper — Instructions — Trial Court —</italic><italic>Propriety.</italic> In prosecution for forcible rape, reviewing court is of the view that the jury was properly instructed upon the law applicable to the case, and no error was committed by the trial court in the instructions given, or in refusing to give those tendered by defendant.

1. <bold>ADVERSE POSSESSION</bold> — <italic>Elements — Quiet Title — Counterclaim — Evidence —</italic><italic>Support — Findings and Decree.</italic> In quiet title action by plaintiffs seeking to establish title by adverse possession to certain ranch property in which record owners counterclaimed for a decree quieting title in their favor, reviewing court is of the view that evidence adequately supports findings and decree in favor of plaintiffs as to adverse possession, since use showed exclusive, open, notorious, continuous and adverse possession for requisite twenty year period. 2. <italic>Quieting Title — Ranch Property — Casual Intrusion — Fishermen —</italic><italic>Possession — Exclusive.</italic> In quiet title action seeking to establish title by adverse possession to certain ranch property, reviewing court is of the view that casual intrusion by a fisherman, or even by several, did not deprive plaintiffs' possession of its exclusive character or defeat their claim to the two tracts. 3. <italic>Quieting Title — Complete Findings of Fact — Instruction — Jury —</italic><italic>Prerequisites — Advisory Verdicts.</italic> In quiet title action seeking to establish title by adverse possession, contention of record owners that district court erred in failing to enter complete findings of fact as to each element of adverse possession is without merit, since court fully instructed jury as to meaning of each prerequisite of adverse possession, namely, actual, hostile, adverse, open, notorious and continuous<page_number>Page 103</page_number> possession; and the six advisory verdicts adopted by the court necessarily rested upon conclusions as to each of these elements. 4. <bold>TRIAL</bold> — <italic>Advisory Verdicts — Court — Adoption — Propriety.</italic> It is not error for a trial court to adopt advisory verdicts in its findings of fact.

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Evidence — Support — Findings — Denial of</italic><italic>Award — Review — Retention.</italic> Where there is proper evidence to support findings of Industrial Commission denying claimant an award of compensation, reviewing court should not set such denial of award aside. 2. <italic>Employee — Found — Employer's Premises — Presumption — Injury —</italic><italic>Arising Out of Employment — Res Ipsa Loquitur — Negative.</italic> There is no presumption that an employee found injured on his employer's premises is presumably injured from something arising out of his work, and the doctrine of <italic>res ipsa loquitur</italic> or some variation of it does not apply. 3. <italic>Burden of Proof — Causal Relationship — Employment — Injury.</italic> The burden of proof in Workmen's Compensation cases is on the claimant who must show a direct causal relationship between his employment and his injury. 4. <italic>Skull Fracture — Failure to Explain — Causal Connection — Lack of</italic><italic>Inference — Reviewing Court — Matter of Law — Refusal.</italic> Where record reflects that claimant in Workmen's Compensation case had incurred a<page_number>Page 107</page_number> fracture to his internal skull which was not attributable to disease, epilepsy or a seizure, and he failed to show how or when he received such fracture and the Commission drew no inference from his testimony to supply a causal connection, <italic>held</italic>, under such circumstances, reviewing court cannot hold as a matter of law that Commission was compelled to do so. 5. <italic>Award — Deprivation — Benefits — Common Law Action — Statute —</italic><italic>Constitutionality.</italic> The fact that a Commission's award may deprive claimant of statutory Workmen's Compensation benefits or a common law action, does not make such a statute unconstitutional.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Home Rule — Ordinance — Careless Driving —</italic><italic>Similar Statute — Inoperative — Appeal and Error — Local and Municipal</italic><italic>Matter.</italic> Where trial court ruled that certain city ordinance pertaining to careless driving was invalid because it conflicted with state statute which prohibited similar offense and thereupon dismissed action against respondent accused of violating such ordinance, <italic>held</italic>, in so doing trial court erred since state statute is inoperative within limits of home rule city; the ordinance in question has preempted the field in a "local and municipal matter" and the statutes of the State of Colorado have been thus "superseded" by such ordinance.

1. <bold>MENTAL HEALTH</bold> — <italic>Criminally Insane — Liability — Estate — Care and</italic><italic>Maintenance — Statute.</italic> Under C.R.S. 1963, 71-1-16, liability is imposed on the <italic>estate</italic> of a criminally insane person who is committed or transferred to a public institution operated by the state for care and maintenance. 2. <italic>Liability — Care and Maintenance — Mental Illness — Civilly —</italic><italic>Committed — Statute.</italic> C.R.S. 1963, 71-1-16 also imposes liability for costs of care, treatment and maintenance of mentally ill or mentally deficient persons who are civilly committed to state institutions. 3. <italic>Care and Maintenance — Penal or Medical — Costs — Recovery — State —</italic><italic>Manner of Recovery.</italic> Different state statutes indicate that costs of maintaining and caring for those in various institutions of the state, be they penal or medical, are recoverable; only the manner of recovering such costs differ. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Class Legislation — Prohibition — Unreasonable.</italic> To constitute class legislation within the constitutional prohibition, the classification must be unreasonable. 5. <bold>STATES</bold> — <italic>Classification — Legislature.</italic> The question of classification is primarily for the legislature. 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Legislative Classification — Courts — Interference</italic><italic>— Lack of Fairness.</italic> Courts will not interfere with the legislative classification unless it appears that there is no fair reason for the law<page_number>Page 206</page_number> that would not equally require its extension to the accepted class. 7. <italic>Distinction — Recovery of Costs — Maintenance — Confinement —</italic><italic>Convicted Criminals — Criminally Insane — Reasonable.</italic> In making statutory distinction between method of recovering costs of confining and maintaining convicted criminals by deducting from their earnings an amount sufficient to pay and satisfy cost of maintenance and of caring for and treating the criminally insane by imposing liability on their estates for care and maintenance, reviewing court is of the view that such difference is not constitutionally unreasonable. 8. <italic>More Expensive Care — Liability — Additional Costs — Lack of</italic><italic>Inequality.</italic> There is no constitutional inequity in requiring those receiving more expensive care in state hospitals to be liable for additional costs through asserts which they may have accumulated. 9. <italic>Criminally Insane — Criminals — Similar Classification — Appeal and</italic><italic>Error.</italic> Probate court committed error in classifying the criminally insane with those found guilty of crimes and incarcerated in the state penitentiary since such classification cannot be found in any legislative enactment. 10. <italic>Legislative Classification — Criminally Insane — All Others</italic><italic>Mentally Adjudicated — Costs — Recovery — Estate — Same — Reasonable.</italic> There is nothing constitutionally unreasonable or unequal in legislative classification which groups criminally insane with all other persons who are adjudicated mentally ill or mentally deficient and which provides that, regardless of how the person has been committed, all persons being treated in same institution are to be charged for costs thereof with recovery from estate, if any, being same in all instances.

1. <bold>HOMICIDE</bold> — <italic>First Degree — Reversal — Manslaughter — Guilty Plea —</italic><italic>Sentence — Post-Conviction Relief — Credit — Time Served — Resentence —</italic><italic>Negative — Rules.</italic> Where first degree murder conviction was reversed and defendant thereafter pled guilty to voluntary manslaughter, and after imposition of sentence sought post-conviction relief contending that he should have been credited for time served on first degree murder conviction pursuant to Colo. R. Crim. P. 35(c) pertaining to resentencing, <italic>held</italic>, sentence imposed on defendant for voluntary manslaughter was not a resentencing under the rule; it was a new, different and distinct sentence, resulting from his plea of guilty to a new and separate charge of voluntary manslaughter; hence, his contention is without merit. 2. <bold>CRIMINAL LAW</bold> — <italic>Reversal — Errors of Law — Verdict — Nullity — Second</italic><italic>Trial — Same Facts.</italic> The reversal of a judgment of conviction for errors of law renders the verdict and judgment therein a nullity, warranting a second trial based on the same facts. 3. <italic>Constitution — Reversal of Conviction — Jeopardy — Negative.</italic> By constitutional mandate in Colorado the reversal of a conviction does not result in jeopardy.

1. <bold>AUTOMOBILES</bold> — <italic>One-car Accident — Cave-in of Street — Dangerous</italic><italic>Condition — Conflict in Evidence — Jury.</italic> In action by plaintiff against city for injuries sustained by her in a one-car accident in which her car was thrown headlong into ditch by cave-in of portion of street while driving upon it at night, where reasonable persons could have drawn sharply different inferences with respect to plaintiff's knowledge of dangerous condition of street, if it was dangerous, and whether she was contributorily negligent, <italic>held</italic>, under the circumstances, plaintiff clearly made a prima facie case and such issues were properly left to the jury. 2. <bold>NEGLIGENCE</bold> — <italic>One-car Accident — Cave-in of Street — City — Instructions</italic><italic>— Contributory — Propriety.</italic> In action by plaintiff against city for injuries sustained by her in one-car accident involving cave-in of portion of street while driving upon it at night, instructions given sufficiently advised jury of meaning of term negligence as it was later used in contributory negligence instructions.<page_number>Page 378</page_number> 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Duty — Maintenance of Streets — Injury —</italic><italic>Liability.</italic> A city is under a duty to maintain its streets in a reasonably safe condition for travel and is liable for any injury occasioned by a neglect of this duty. 4. <italic>Duty — Maintenance of Streets — Satisfaction of Duty — Two Ways.</italic> A city, under a duty to maintain its streets in a reasonably safe condition for travel, may satisfy such duty in one of two ways; when the city knows or, in the exercise of reasonable care, should know of a defect or dangerous condition in its streets, it must either (1) repair or remedy the defect, or (2) exercise reasonable care to give adequate warning of the existence of the condition to the users of its streets. 5. <italic>One-car Accident — Cave-in of Street — Instructions — Conflict —</italic><italic>Warn and Repair — Appeal and Error.</italic> In action by plaintiff against city for injuries sustained by her in one-car accident involving cave-in of portion of street while driving upon it at night, where instructions contained an internal conflict and in effect set forth that duty of city was to both warn and repair, or be held liable, <italic>held</italic>, under such circumstances, the instructions were erroneous and require reversal of case. 6. <bold>Negligence</bold> — <italic>Instruction — Route — Safe — Unsafe — Choice — Knowledge —</italic><italic>Necessary.</italic> In any instruction attempting to assess fault for failure of driver to choose a safe route as against an unsafe route, provision that injured party knew or should have known that the chosen route was unsafe is a necessary part of such instruction. 7. <bold>DAMAGES</bold> — <italic>One-car Accident — Cave-in of Street — Evidence — Instruction</italic><italic>— Capabilities — Future — Impairment — Propriety.</italic> In action by plaintiff against city for injuries sustained by her in one-car accident involving cave-in of portion of street while driving upon it at night, record reflects sufficient evidence to support instruction permitting recovery for impairment of plaintiff's "capabilities for the future" as a mother and wife. 8. <bold>TRIAL</bold> — <italic>Review — Instructions — Reading — Normal Meanings — Jury —</italic><italic>Context.</italic> Upon review, instructions must be read to convey normal meanings to juries in the context of the case in which they are given. 9. <bold>DAMAGES</bold> — <italic>Automobile — Cave-in of Street — Testimony — Capabilities —</italic><italic>Normal Life — Mother — Wife — Loss of Earnings — Instruction — Propriety.</italic> Where plaintiff, driver of automobile who sustained injuries as a result of<page_number>Page 379</page_number> cave-in of portion of street on which she was driving, produced testimony as to capabilities to lead normal life as mother and wife and engage in normal family activities and made no claim for loss of earnings as result of her injuries, <italic>held</italic>, under such circumstances, instruction permitting recovery for impairment of "capabilities for the future" was proper and not misleading with reference to loss of "capabilities" for which she sought compensation.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Unprofessional Conduct — Reprimands — Warnings —</italic><italic>Censure — Disbarment.</italic> Attorney, whose unprofessional conduct resulted in private reprimands and warnings on two separate occasions and who received a public censure with severe reprimand and warning on a third occasion and whose continued misbehavior casts a pall of disrepute upon the entire legal profession, is accordingly disbarred.

1. <bold>WITNESSES</bold> — <italic>Prior Inconsistent Statements — Relevancy — Admissibility —</italic><italic>Purpose — Discredit Witness.</italic> Prior inconsistent statements, if relevant, material and not collateral, are admissible not to prove the facts asserted, but to discredit the witness and to show that because of the contradictory statements the witness is not worthy of belief. 2. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Malice — Jury — Determination —</italic><italic>Circumstantial Evidence.</italic> Malice required for second degree murder of a three-year-old child based on entirely circumstantial evidence is implied malice such as can be determined by the jury from the circumstantial evidence adduced. 3. <bold>WITNESSES</bold> — <italic>Second Degree Murder — Circumstantial Evidence —</italic><italic>Prosecution — Impeachment — Cautionary Instruction — Request.</italic> In prosecution for second degree murder of three-year-old child based on entirely circumstantial evidence, record reflects that statements of witnesses called by prosecution were introduced solely for purposes of impeachment; hence, if defendant desired a cautionary instruction as to the purpose of the admission of such testimony, he should have requested it. 4. <bold>HOMICIDE</bold> — <italic>Presumption of Intent — Conviction — Necessity — Specific</italic><italic>Intent — First Degree — Assault With Intent.</italic> A presumption of intent will not support the conviction of a crime where specific intent to commit the crime is required, such as first degree murder or assault with intent to commit murder. 5. <italic>Second Degree Murder — General Intent — Instruction — Presumption —</italic><italic>Acts — Propriety.</italic> Where the crime charged involves general intent such as second degree murder, an instruction such as given in instant case — that a<page_number>Page 424</page_number> man is presumed to intend the natural and probable consequences of his voluntary acts — is deemed proper. 6. <bold>CRIMINAL LAW</bold> — <italic>Instructions — Read Together.</italic> In a criminal case, all of the instructions are to be read together as a whole. 7. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Circumstantial Evidence —</italic><italic>Instructions — Burden of Proof — Propriety.</italic> In prosecution for second degree murder of three-year-old child based entirely on circumstantial evidence, jury was properly directed by other instructions that the People have the burden to prove beyond a reasonable doubt every material element of the crime. 8. <italic>Second Degree Murder — Circumstantial Evidence — Proof — General</italic><italic>Intent.</italic> In prosecution for second degree murder of three-year-old child based entirely on circumstantial evidence, one of the material and necessary ingredients to be proved was the general intent. 9. <bold>CRIMINAL LAW</bold> — <italic>Ingredient of Crime — Other Instructions — Repetition —</italic><italic>Unnecessary.</italic> A necessary ingredient of a crime which is already contained in other instructions need not be repeated in a separate instruction. 10. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Child of Three — Circumstantial</italic><italic>Evidence — Jury — Instructions — Intent.</italic> In prosecution for second degree murder of three-year-old child based entirely on circumstantial evidence, reviewing court is of the view that jury was correctly informed by all of the instructions that it was within their province to determine whether the requisite intent was established from the circumstances connected with the perpetration of the offense. 11. <italic>Death — Attack — Hands or Feet — Mature Person — Good Health —</italic><italic>Malice — Implication — Negative.</italic> As a general rule, where death ensues from an attack made with the hands or feet on a person of mature years, who is in good health, malice cannot be implied. 12. <italic>Assault — Infant — Tender Years — Person — Aged or Diseased —</italic><italic>Feeble — Malice — Implied.</italic> Malice may be implied in a situation involving an assault with hands or feet committed on an infant of tender years or a person enfeebled by old age or disease. 13. <italic>Second Degree Murder — Circumstantial Evidence — Autopsy Report —</italic><italic>Injuries — Infant — Fist — Foot — Instruction — Sufficiency — Implied</italic><italic>Malice.</italic> In prosecution for second degree murder of three-year-old child<page_number>Page 425</page_number> based entirely on circumstantial evidence, reviewing court is of the view that evidence of autopsy report and medical opinion that injuries suffered by victim were consistent with use of fist or foot were not speculative; they were therefore sufficient to support instruction pertaining to implied malice. 14. <bold>CRIMINAL LAW</bold> — <italic>Evidence — Instruction — Conclusive — Uncontradicted —</italic><italic>Negative.</italic> Evidence of commission of crime does not have to be conclusive or uncontradicted if there is enough evidence in record on which instruction is based. 15. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Infant — Circumstantial Evidence —</italic><italic>Instruction — Reasonable Doubt — Propriety — Burden — Shift — Negative.</italic> In prosecution for second degree murder of three-year-old child based entirely on circumstantial evidence, instruction which merely reiterated that if there existed reasonable doubt in the minds of the jurors as to the guilt of the defendant they must find him not guilty was proper under the circumstances of the case; the instruction did not shift burden of proof regarding cause of infant's death to defendant. 16. <italic>Second Degree Murder — Infant — Circumstantial Evidence — Inference —</italic><italic>Sufficiency — Jury — Acquittal — Negative.</italic> In prosecution for second degree murder of three-year-old child based entirely on circumstantial evidence and inference which minds of reasonable men would draw therefrom, reviewing court is of the view that there was sufficient evidence to submit case to jury; hence, contention that court should have directed verdict of acquittal and that verdict was based solely on speculation or on mere suspicion of guilt, is without merit.

1. <bold>ARBITRATION AND AWARD</bold> — <italic>Hospital Addition — Unforeseen Difficulties —</italic><italic>Soil — Drilling Costs — Validity — Recovery — Rules.</italic> In contract between owner and contractor for construction of hospital addition for stated sum, where, as result of unforeseen difficulties in actual drilling due to quality and texture of soil, changed plans and designs were agreed upon and extra costs were incurred by contractor as result of increased use of materials, labor and expense, and where parties mutually requested arbitration to settle their differences which was fairly conducted and<page_number>Page 448</page_number> award was made by arbitrator in favor of contractor, <italic>held</italic>, reviewing court is of the view that the arbitration proceedings were in conformity with R.C.P. Colo. 109 and the award entered by the arbitrator was a valid one. 2. <italic>Participate in Selection — Hearing — Evidence — Adverse Finding —</italic><italic>Review — Unfavorable Award — Negative.</italic> An individual or an agency of the state may not freely participate in the selection of arbitrators in accordance with statute, attend the hearing, submit his evidence, hope for a favorable award, and in the event of an adverse finding, seek a review merely because the award is unfavorable to him or it. 3. <italic>Method of Settling Disputes — Without Court Procedure.</italic> Arbitration in its very nature is a method of settling disputes without court procedure. 4. <italic>Arbitrators — Final Judges — Law and Fact — Review — Negative.</italic> Arbitrators are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either. 5. <italic>Award — Judgment — Equal — Review — Rules.</italic> The award of the arbitrators is of equal dignity with a judgment, and may only be reviewed for the causes set forth in R.C.P. Colo. 109. 6. <italic>Courts — Interference — Negative — Exception.</italic> Courts should be cautious in interfering where an award is fair on its face and should never do so, except to prevent a "manifest injustice." 7. <italic>Strict Adherence — Procedure — Negative.</italic> Strict adherence to legal punctilio is not required in arbitration proceedings as in court procedure.

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Commission — Fact Finder.</italic> In the process of decision making in workmen's compensation cases, the Industrial Commission is the fact finder. 2. <italic>Finder of Fact — Evidence — Evaluation — Credibility of Witnesses.</italic> In a workmen's compensation case, it always devolves upon the finder of fact to evaluate the evidence and determine the credibility of witnesses. 3. <italic>Fact-finding Function — Application — Whole — Part.</italic> The Industrial Commission may apply its fact-finding function to the whole of a witness' testimony and also to the parts which form such whole. 4. <italic>Later Symptoms — Relation — Previous Injury — Testimony — Surgeon —</italic><italic>Claimant — Reopening of Claim.</italic> Where claimant and his surgeon both testified that 1964 symptoms were related to claimant's 1961 accident incurred in course of his employment and which resulted in an injury to his lower back, and where neither employer nor insurance carrier introduced any evidence, <italic>held</italic>, under such circumstances, trial court properly affirmed Commission's order reopening claim.

1. <bold>WORKMEN'S COMPENSATION</bold> — <italic>Death — Heart Case — Claimant — Proof —</italic><italic>Accident — Employment — Cause.</italic> Under Workmen's Compensation Act, it is incumbent upon the claimant in a "heart" case to establish that an accident arising out of and in the course of decedent's employment proximately caused the death of the employee. 2. <italic>Heart Cases — Overexertion — Accident — Claimant — Proof — More —</italic><italic>Normal — Usual.</italic> In "heart" cases under the Workmen's Compensation Act, "overexertion" may constitute the accident, but the claimant must prove<page_number>Page 533</page_number> that decedent's exertion was more than the exertion attendant upon the discharge of the normal and usual duties of the decedent. 3. <italic>Findings of Fact — Commission — Conflict — Reviewing Court —</italic><italic>Disturb — Negative — Contrary — Trier of Fact.</italic> Reviewing court cannot disturb the findings of fact by the Industrial Commission based upon conflicting evidence where such evidence is sufficient to support the findings; and this is true even though it may have reached a contrary conclusion were it in the position of trier of fact. 4. <italic>Finding — Commission — Test — Review — Sufficiency.</italic> In testing the ultimate finding of the Industrial Commission, reviewing court is concerned only with the sufficiency of the testimony which purports to support that finding. 5. <italic>Causal Relationship — Negative — Dust — Heart Stoppage — Iron</italic><italic>Worker.</italic> Record reflects sufficient evidence to support Industrial Commission's conclusion that there was no causal relationship between inhalation of dust and heart stoppage suffered by 48-year-old iron involved in construction of commercial building. 6. <italic>Commission — Application — Rules of Law — Proper — Heart Failure —</italic><italic>Death — Cough — Dust — Iron Worker — Construction.</italic> Industrial Commission applied the proper rules of law in relation to the requirements of proof in workmen's compensation proceeding involving claim by widow of decedent who allegedly dies of heart failure due to coughing spells brought on by machine created clouds of dust while employed as an iron worker in the construction of a commercial building. 7. <bold>APPEAL AND ERROR</bold> — <italic>Claim of Error — Admissibility of Evidence —</italic><italic>Ruling — Offer of Proof — Negative — Supreme Court — Refusal.</italic> Supreme Court ordinarily does not consider a claim of error with reference to propriety of trial court's ruling regarding the admissibility of certain evidence where there was no offer of proof.

1. <bold>DAMAGES</bold> — <italic>Breach — Measure — Recovery — Rule.</italic> The fundamental rule to be observed in breach of contract actions is that the wronged party should recover compensatory damages sufficient to place him in the position he would have occupied had the breach not occurred. 2. <bold>BANKS AND BANKING</bold> — <italic>Special Account Agreement — Used Cars — Drafts —</italic><italic>Title Certificate — Measure of Damages.</italic> In action by depositors against bank which had allegedly violated special account agreement pertaining to financing purchase of used cars, where bank agreed to pay from plaintiffs' special account drafts by auto dealer which described certain vehicles and which were accompanied by corresponding title certificates to be held by bank without creation of security interest, measure of damages for bank's paying drafts accompanied by certificates for different automobiles was not<page_number>Page 577</page_number> difference in value between vehicles represented by certificates and vehicles described on drafts. 3. <bold>AUTOMOBILES</bold> — <italic>Bank — Possession — Title Certificates — Encumbrance —</italic><italic>Negative.</italic> Bank's mere possession of automobile title certificates did not create encumbrance against automobiles. 4. <bold>DAMAGES</bold> — <italic>Contract — Mortgage — Property of Debtor — Security — Failure</italic><italic>to Perform — Amount.</italic> Where a defendant contracts to procure a mortgage or deed of trust against debtor's property to secure a plaintiff's loan, the defendant's failure to perform coupled with the debtor's insolvency, would entitle the creditor to damages limited to the value of the security which defendant neglected to obtain.