Volume 170 — Colorado Reports

1. <bold>WORKERS' COMPENSATIONS</bold> — <italic>Negligence — Borrowing Employer — Recovery —</italic><italic>Insurer — Loaning Employer — Policy — Liability of Defendant — Finding —</italic><italic>Moot.</italic> In action by loaned employee against defendant borrowing employer to recover damages for injury sustained as result of defendant's negligence, and by Industrial Commission seeking recovery against defendant of amount paid employee by state compensation insurer when employee filed claim for workmen's compensation as regular employee of loaning employer, additional finding of trial judge as matter of law — that even if defendant had such policy it would in no way affect liability of defendant to plaintiffs' in instant case — was correct statement of law; hence, question of whether evidence at hearing on motion for new trial did or did not support trial court's finding of no compensation insurance is moot. 2. <italic>Borrowing Employer — Insurance Coverage — Negligent Third Party —</italic><italic>Common Law Action — Propriety.</italic> Defendant borrowing employer — even though it might have had workmen's compensation insurance coverage — was, under facts of instant case, a negligent "third party" and therefore subject to common law action by loaned employee suing for damages on theory of negligence and Industrial Commission suing to recover compensation paid by loaning employer's state compensation insurer.<page_number>Page 17</page_number> 3. <italic>Act — Borrowing Employer — Immunity — Negligence — Negative.</italic> Workers' Compensation Act does not immunize borrowing employer against common law negligence action. 4. <italic>Loaning Employer — Responsible — Coverage — Exception — New Contract</italic><italic>of Hire.</italic> Loaning employer is solely responsible for workmen's compensation coverage unless it is shown that the loaning constitutes a new contract of hire <italic>between the employee and the borrowing employer.</italic> 5. <italic>Borrowing Employer — Liable — Common Law — Negligence — Attempt to</italic><italic>Show — Coverage — New Trial — Denial.</italic> Defendant borrowing employer, found liable in common law negligence action by loaned employee, has no right to a new trial based on its contention that if granted a new trial it could then attempt to show workmen's compensation coverage, which attempt, if successful, would bar such common law negligence action by loaned employee. 6. <italic>Abolition — All Causes of Action — Rights and Remedies — Application</italic><italic>— Covered Employers — Covered Employees.</italic> C.R.S. 1963, 81-3-2, which abolishes all causes of action and all statutory and common law rights and remedies, applies only to covered employers and covered employees. 7. <italic>Employee — Definition — Contract of Hire.</italic> Under C.R.S. 1963, 81-2-7(2), an employee is defined as being any person under any contract of hire, express or implied. 8. <italic>Employee — Loaned — Covered Employer — Other — Covered — Negative —</italic><italic>Statute — Exception — New Contract of Hire.</italic> The statute, C.R.S. 1963, 81-13-1, makes it clear that as applied to a situation where an employee is loaned to another by his covered employer, he does not become a covered employee of the other, nor does the other become a covered employer unless a new contract of hire is made between the employee and the borrowing employer. 9. <italic>Loaned Employee — Employee — Statute — Different.</italic> A "loaned employee," and an "employee" under the Workers' Compensation Act are not the same. 10. <italic>Act — Provision — Prohibition — Negative — Loaned Employee —</italic><italic>Negligence Action — Borrowing Employer.</italic> The General Assembly has not enacted any Workers' Compensation Act provision which prohibits or limits a "loaned employee" from maintaining a negligence action against the borrowing employer.<page_number>Page 18</page_number> 11. <italic>Act — Lack of Limitation — Remedies — Supreme Court — Read or</italic><italic>Interpret — Negative.</italic> Where the provisions of the Workers' Compensation Act do not expressly limit the employee with respect to other remedies, Supreme Court is not disposed to read or interpret such limitations into Workers' Compensation statutes. 12. <italic>Loaning Employer — Act — Compliance — Immunity — Common Law Action</italic><italic>— Loaned Employee.</italic> The loaning employer is the only employer whose compliance with the Workers' Compensation Act makes him immune from a common law action for injury to the loaned employee. 13. <bold>PLEADING</bold> — <italic>Function — Complaint — Notice — Theories — Insignificant.</italic> The primary function of the complaint is to give notice, and theories of action are no longer significant. 14. <italic>Claim — Proof — Relief — Theory — Cause of Action — Insignificant.</italic> If a party states any claim and proves it by a preponderance of the evidence he is entitled to relief without regard to a specific theory or cause of action. 15. <bold>CONTINUANCE</bold> — <italic>Discretion of Court — Abuse — Review — Ruling.</italic> A motion for continuance is addressed to the trial court's discretion, and unless a manifest abuse of discretion is shown, the court's ruling will not be disturbed on review. 16. <bold>APPEAL AND ERROR</bold> — <italic>Continuance — Denial — Failure to Raise — Motion</italic><italic>for New Trial — Supreme Court — Lack of Consideration.</italic> Where defendant did not state failure to grant a continuance as a ground in its motion for new trial, <italic>held</italic>, under such circumstances the matter is not properly before the Supreme Court since the issue was not raised as required by the rules.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Heart Attack — Course of Employment —</italic><italic>Compensable — Overexertion.</italic> In order to render a heart attack occurring during the course of employment compensable under the Workers' Compensation Act, claimant must prove "overexertion" by deceased, arising out of and in the course of his employment, and that such overexertion proximately caused the death. 2. <italic>Finding — Commission — Overexertion — Negative — Binding — Supreme</italic><page_number>Page 53</page_number><italic>Court.</italic> Where, from undisputed evidence Industrial Commission found there was no "overexertion" by deceased, a common laborer, whose usual duties involved operating dirt-tamping machine, which, on day of his death, he had started to carry up a short flight of stairs when he suddenly collapsed and died, <italic>held</italic>, record supports such finding. 3. <italic>Different Conclusions — Findings of Commission — Binding — Review.</italic> Where reasonable men fairly considering the evidence before the Industrial Commission might honestly arrive at different conclusions, the findings of the Commission in resolution thereof are binding upon the reviewing court.

1. <bold>NEW TRIAL</bold> — <italic>Rear-end Automobile Collision — Special Damage — Verdict —</italic><italic>Cents — Outlays — Reversal — Damages.</italic> In action for damages arising out of rear-end automobile collision, where plaintiff's special damage amounted to $622.44, consisting of his expenditure for repair of his car, medical services, drugs and orthopedic appliances, and jury returned verdict in his favor in amount of $622.80, being only 36 cents more than plaintiff's outlays, <italic>held</italic>, under the circumstances, reviewing court reverses and remands for a new trial on question of damages only. 2. <bold>AUTOMOBILES</bold> — <italic>Rear-end Collision — Icy and Slick — Verdict of Jury —</italic><italic>Liability — Determinative.</italic> Jury's verdict on the question of liability, in a rear-end automobile collision case which occurred at an early daylight hour where the street was icy and very slick, is determinative. 3. <bold>DAMAGES</bold> — <italic>Injury — Pain — Disability — Rear-end Automobile Collision —</italic><italic>Testimony — Orthopedists — Recovery Beyond Outlays — Jury — Failure of</italic><italic>Function.</italic> Where testimony as to injury resulting from rear-end automobile collision and as to pain and disability was corroborated not only by<page_number>Page 159</page_number> plaintiff's orthopedic surgeon, but by another orthopedist called to stand by defendant, <italic>held</italic>, under state of record, reviewing court concludes that plaintiff sustained injuries for which he is entitled to damages beyond his actual outlays, and that jury failed in its function by refusing to recognize this undisputed fact and to assess resulting compensatory damage.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Equal Protection of the Law — Denial — Test.</italic> The test to determine whether a legislative act denies equal protection of the law to a certain class is set forth as follows: Equal protection in its guarantee of like treatment to all similarly situated permits classification which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved. 2. <bold>WITNESSES</bold> — <italic>Impeachment Tools — Civil and Criminal Actions —</italic><italic>Legislative Distinction — Reasonable.</italic> Legislature's distinction between impeachment tools permitted in civil and criminal actions by C.R.S. 1963. 154-1-1 is grounded on a reasonable basis, hence, defendant's contention — that legislative distinction between civil and criminal actions is unreasonable and arbitrary, and that failure to include witnesses in criminal actions under same rule applied to witnesses in civil actions is a denial of equal protection of the law — is without merit. 3. <italic>Legislature — More Searching Inquiry — Credibility — Criminal Trial</italic><italic>— Reasonable.</italic> It is not unreasonable for the legislature to permit a more searching inquiry into the credibility of witnesses in a criminal trial where the burden is on the People to prove the guilt of the defendant beyond a reasonable doubt. 4. <italic>Larceny — Use — Felony Conviction — More Than Five Years —</italic><italic>Impeachment — Denial of Equal Protection — Lack of Merit.</italic> Where defendant was convicted by a jury of larceny from the person and sought reversal of<page_number>Page 269</page_number> his conviction on the ground that use by the People of felony convictions more than five years old to impeach his credibility as a witness denied him equal protection of the law, <italic>held</italic>, under circumstances of instant case reviewing court is of the view that defendant has no standing to raise the argument that he was denied equal protection of the law. 5. <bold>CRIMINAL LAW</bold> — <italic>Conduct of Trial — Control of Counsel — Statements to</italic><italic>Jury — Discretion of Trial Judge.</italic> The conduct of the trial in a criminal case and control of counsel in statements made to the jury are matters which reviewing court leaves to the discretion of the trial judge. 6. <italic>Question — Granting of New Trial — Misconduct of Counsel — Remarks</italic><italic>to Jury — Discretion of Trial Court — Writ of Error — Abuse.</italic> The question of whether a new trial should be granted for misconduct of counsel in his remarks to the jury rests in the sound judicial discretion of the trial court, and reviewing court will not interfere with its discretion on writ of error unless it manifestly appears that such discretion has been abused. 7. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Evidence — Inadmissible — Missing Pages — Hotel</italic><italic>Register — Larceny — Mistrial — Refusal — Discretion of Judge — Instruction</italic><italic>— Sufficiency.</italic> Where trial judge, in exercising his discretion, decided that instruction to jury to disregard references by prosecuting attorney to missing register pages with relation to hotel where larceny from person had been committed would be sufficient, but refused to grant mistrial notwithstanding the fact that prosecutor continued to offer evidence before jury which had been declared inadmissible by trial judge, <italic>held</italic>, in so doing, trial judge did not abuse his discretion; actually, he was in the best position to determine the impact such questions and statements by prosecutor had on the jury. 8. <bold>CRIMINAL PROCEDURE</bold> — <italic>Missing Pages — Hotel Register — Inadmissible —</italic><italic>Larceny — Mistrial — Refusal to Declare — Fair Trial — Misconduct —</italic><italic>Negative — Nature of Trial Process.</italic> Where trial judge sustained defendant's objection to prosecutor's reference to missing register pages with relation to hotel in which larceny from person had been committed and prosecutor continued to offer evidence before jury which had been declared inadmissible and trial judge declined to order a mistrial, <italic>held</italic>, by exercising his discretion in declining to order a mistrial, defendant was not deprived of his constitutional right to a fair trial; especially, where such misconduct did not substantially affect nature of trial process.<page_number>Page 270</page_number> 9. <bold>CRIMINAL LAW</bold> — <italic>Trial — Test for Fairness — Freedom from Prejudicial</italic><italic>Error — Affecting Rights of Accused — Substantial.</italic> The test for fairness applied in our state courts is whether the trial is free of any prejudicial error affecting the substantial rights of the accused. 10. <bold>CRIMINAL PROCEDURE</bold> — <italic>Larceny — Burden — Delay — Prejudice —</italic><italic>Preparation of Defense — Failure to Prove.</italic> In prosecution for larceny from the person, reviewing court is of the view that defendant failed to satisfy his burden of proving that the delay of approximately ten months in his case was not consistent with the orderly conduct of the trial court's business and that such delay resulted in prejudice to him in preparing his defense. 11. <italic>Mistrial — Matter of Discretion — Judge.</italic> Whether or not a mistrial should be granted is a matter of discretion with the trial judge. 12. <italic>Question — Jurors — Irregular — Prejudicial — Mistrial — Proper.</italic> In prosecution for larceny from the person, where trial judge found a question asked of the prospective jurors by counsel to be irregular and prejudicial and thereupon ordered a mistrial, <italic>held</italic>, there is nothing in the record to indicate such order was not legally justified. 13. <italic>Larceny — Same Treatment — Other Cases on Docket — Speedy Trial —</italic><italic>Consistent With Court's Business.</italic> In prosecution for larceny from the person, where defendant's case was given the same treatment accorded other cases on the docket, <italic>held</italic>, under such circumstances he cannot be heard to complain that he has not received a speedy trial consistent with the court's business. 14. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Larceny — Limited — Prior Felony Convictions</italic><italic>— Proper.</italic> In prosecution for larceny from the person, trial judge acted properly in instructing jury on the limited purpose for which evidence of prior felony convictions was admitted even though defendant had objected to such instruction. 15. <bold>LARCENY</bold> — <italic>Evidence — Guilt — Beyond Reasonable Doubt.</italic> In prosecution for larceny from the person, reviewing court is of the view that the evidence presented by the People established the guilt of the defendant beyond a reasonable doubt.

1. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Cannabis — Unlawful Sale — Unlawful Possession —</italic><italic>Record — Entrapment — Matter of Law — Negative.</italic> Where defendant was convicted of unlawful sale of narcotic drug with intent to induce and aid another to unlawfully use and possess narcotic drugs and with unlawful possession of cannabis and now contends on review that this conviction on both counts should be reversed because "unlawful entrapment" was established as a matter of law and trial court should have therefore directed a verdict in his favor instead of submitting issue of alleged entrapment to jury, <italic>held</italic>, defendant's argument is untenable since record fails to show entrapment as a matter of law. 2. <bold>CRIMINAL LAW</bold> — <italic>Verdict — Impeachment — Affidavit — Jurors —</italic><italic>Prohibition.</italic> Generally a verdict in a criminal case may not be impeached by affidavits of jurors. 3. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Unlawful Sale — Intent — Verdict — Jury — Refusal</italic><italic>to Sign — Own Verdict — Uncertain — Indefinite — Error.</italic> In prosecution for unlawful sale of narcotic drug with intent to induce another to unlawfully use and possess narcotic drugs, where jury refused to sign either form of verdicts but returned their own verdict finding defendant guilty of selling a narcotic drug, as charged in the information, without any finding as to intent, <italic>held</italic>, under the circumstances, defendant's conviction cannot be permitted to stand, since the verdict lacked certainty and definiteness.<page_number>Page 406</page_number> 4. <bold>CRIMINAL LAW</bold> — <italic>Verdict — Certain — Technical — Negative.</italic> A verdict in a criminal case should be certain and devoid of ambiguity, but it need not follow strict rules of pleading or be otherwise technical. 5. <italic>Verdict — Meaning — Intention — Jury — Uncertainty — Negative.</italic> A verdict in a criminal case is not subject to the charge of uncertainty if it is phrased in words which convey beyond a reasonable doubt the meaning and intention of the jury.

1. <bold>COURTS</bold> — <italic>United States Supreme court — Miranda Case — Interrogation</italic><italic>— Without Attorney — Burden — People — Waiver — Privilege Against</italic><italic>Self-incrimination — Counsel.</italic> Under rule laid down by United States Supreme Court in <italic>Miranda v. Arizona</italic>, when police officers interrogate a defendant without the presence of an attorney, and a statement is taken, the burden is on the People to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. 2. <bold>LARCENY</bold> — <italic>Motor Vehicle — Constitutional Rights — Waiver — Knowing and</italic><italic>Intelligent — Evidence.</italic> In prosecution for larceny of a motor vehicle, reviewing court is of the view that record reflects sufficient evidence of a knowing and intelligent waiver by defendant of the rights guaranteed to him by the constitution. 3. <bold>COURTS</bold> — <italic>Miranda Case — Burden of Proof — Admissibility — Confession —</italic><italic>People — Corroboration — Witnesses — Unnecessary.</italic> Although the United States Supreme Court case of <italic>Miranda v. Arizona</italic> puts the burden of proof of admissibility of a confession on the People, nevertheless, it does not require corroboration of the witnesses who testify for the People on the issue of admissibility.

1. <bold>NEGLIGENCE</bold> — <italic>Collision — Automobile — Tractor Trailer Rig — Wife —</italic><italic>Driver — Husband — Imputed — Negative — Consortium — Expenses — Recovery.</italic> In action involving highway collision between automobile and heavy tractor trial rig, where husband was not in automobile, no agency question being<page_number>Page 475</page_number> involved as between him and driving of automobile by wife, and automobile was not owned by him therefore removing "family car" doctrine from situation, <italic>held</italic>, under the circumstances, negligence of wife-driver could not be imputed to husband suing for wife's medical expenses, loss of her services and consortium, and expenses for care of children. 2. <bold>HUSBAND AND WIFE</bold> — <italic>Contributory — Spouse — Bar — Recovery — Loss of</italic><italic>Consortium — Medical Expenses — Other Spouse.</italic> Contributory negligence of a spouse bars recovery of collateral damages — loss of consortium, medical expenses, loss of services — suffered by the other spouse. 3. <italic>Personal Injuries — Lack of Recovery — Loss of Services — Lack of</italic><italic>Negligence.</italic> If the wife cannot recover in her action for personal injuries either by reason of contributory negligence or because of failure to show negligence on the part of defendant, then the husband cannot succeed in his action for loss of his wife's services against the same defendant. 4. <bold>AUTOMOBILES</bold> — <italic>Collision — Tractor Trailer Rig — Wife — Driver —</italic><italic>Contributory Negligence — Husband — Recovery — Expenses — Loss of</italic><italic>Consortium — Negative.</italic> In action involving highway collision between automobile and heavy tractor trailer rig, contributory negligence of wife, as driver of automobile, barred husband's recovery of her medical expenses, loss of her services and consortium, and expenses for care of children.

1. <bold>CONTEMPT</bold> — <italic>Accused — Conviction — Charge — Citation.</italic> The accused can be convicted of no contempt other than that charged in the citation. 2. <italic>Citation — Importance — Preparation of Defense.</italic> The citation for contempt plays a very important role in enabling the person charged to understandingly shape his course and prepare his defense. 3. <bold>HABEAS CORPUS</bold> — <italic>Custody — Minors — Father — Mother — Grandfather —</italic><italic>Service of Process — Jurisdiction — Visit.</italic> In habeas corpus proceeding brought by father to obtain custody of two minor children from mother, grandparents involved in such proceeding were not required to demand that mother who was not served remain within court's jurisdiction even though service had been made on grandfather whom mother and children were visiting. 4. <bold>CONTEMPT</bold> — <italic>Habeas Corpus — Colorado — Custody — Decree — Mother — Texas</italic><italic>— Process — Grandfather — Uncle — Guilt — Negative.</italic> In habeas corpus proceeding brought by father in Colorado against mother who had custody of children pursuant to Texas decree and who were visiting children's grandparents, where grandfather and uncle of children had been served in such proceeding and mother in the meantime had returned to Texas with the children, <italic>held</italic>, under the circumstances, grandfather and uncle who failed to produce children in court were not guilty of contempt.<page_number>Page 546</page_number> 5. <italic>Habeas Corpus — Custody of Children — Grandfather — Uncle —</italic><italic>Interference — Obstruction — Legal Process — Punish — Negative.</italic> In habeas corpus proceeding involving custody of two minor children, contention of father, that act of grandfather and uncle who failed to produce children constituted interference with execution of legal process or obstructing administration of justice, is without merit; such acts of interference — if in truth they were actually acts of interference — constituted contempt outside presence of court, and since no action to punish for contempt on this basis was taken, court had no power to punish for contempt based on grounds of interference and obstruction. 6. <italic>Judgment — Invalid — Attorney Fees — Negative — Rules.</italic> Where record reflects that judgment of contempt cannot be sustained, award of attorney's fees by trial court must also be set aside, since by virtue of Rule 107(d) an order for attorney's fees is an adjunct of a finding of guilty of contempt.