Volume 173 — Colorado Reports

1. <bold>ESTOPPEL</bold> — <italic>Zoning — Drive-In Theater — First Proceeding — Lack of</italic><italic>Notice — Void — Second Proceeding — Reliance — Basis — Negative.</italic> In proceeding involving application to change zoning of 18-acre tract to permit construction and operation of drive-in theater, where board of county commissioners in first proceeding granted requested change of zoning which court declared void because of lack of proper notice, and where board found in second proceeding that requested rezoning was not in conformity with master plan; that change would constitute spot zoning; and that residential character of neighborhood should not be changed, and theater now argues that under doctrine of equitable estoppel board was obliged to change zoning, <italic>held</italic>, theater's argument is untenable since facts indicate that zoning was never validly changed, hence theater cannot use reliance on first resolution as basis for estoppel. 2. <bold>JUDGMENT</bold> — <italic>Zoning Change — Board — District Court — Void — Lack of</italic><page_number>Page 58</page_number><italic>Notice — Findings — Dicta — Changes — Collateral Estoppel — Negative.</italic> Where board of county commissioners had previously approved request for zoning change and where district court in reviewing such approval determined that board's action was null and void because proper notice of its hearing had not been given so that court's findings in first proceeding concerning conformity to master plan should not have been part of court's determination being purely dicta, and where there was testimony at second hearing that substantial changes had occurred between times of two hearings, which changes supported different conclusion by board, <italic>held</italic>, under the circumstances, board was not collaterally estopped from denying second request for zoning change. 3. <bold>ZONING</bold> — <italic>Change — Drive-In Theater — First Hearing — Second Hearing —</italic><italic>Evidence Outside Record — Contention — Untenable — Size of Tract —</italic><italic>Material.</italic> In adverse ruling on application to change zoning of 18-acre tract to permit construction and operation of drive-in theater, contention of applicant — that board member who voted for rezoning at first hearing and against it at second hearing reached his conclusion following second hearing upon evidence outside the record — is without merit; actually, commissioner was merely making comparison between two development proposals based on testimony at second hearing, namely, change in position of screen to be erected at theater and change in acreage; and whether or not projected location of screen was proper ground for decision, size of tract for which rezoning was sought certainly was material. 4. <italic>First Hearing — Second Hearing — Change of Circumstances.</italic> Where board of county commissioners at first hearing on application for zoning change concluded to change zoning and then voted against it at second hearing and applicant now argues there was no change of circumstances between first and second hearings which would justify a different result,<italic>held</italic>, the argument is without merit since there were substantial changes. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Zoning — Taking of Property — Due Process —</italic><italic>Acquisition — Deprivation — Change.</italic> The constitutional argument of taking property without due process of law in a zoning case must be predicated upon the acquisition and use of property under one zoning regulation and the unconstitutional deprivation of that property by a change of zoning.<page_number>Page 59</page_number> 6. <bold>ZONING</bold> — <italic>Drive-In Theater — Board — Approval — Denial — Change —</italic><italic>Deprivation — Constitutional.</italic> Where second zoning board decision denied drive-in motion picture theater corporation's request to change zoning after board had previously approved such request, and record reflects there was no change, the first attempted change of zoning having been declared void by court, <italic>held</italic>, under the circumstances, theater corporation did not suffer unconstitutional deprivation of its property by reason of second zoning decision which denied zoning change.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Investigation of Burglary — Suspect — Defendant</italic><italic>— Similar Names — Search — Gold Ring — Unconstitutional.</italic> Where police, while investigating burglary arrested suspect on basis of automobile license number obtained from witness, and while sitting in vehicle, one of the officers saw defendant approach, hesitate, turn around and start walking away from vehicle, whereupon they drove up to him, and after learning his name was similar to name of suspect in their vehicle, proceeded to search defendant and feeling a bulge in defendant's pocket reached into pocket and pulled out keys and gold ring which defendant seeks to suppress as evidence, <italic>held</italic>, taking of gold ring from defendant under these circumstances was violation of Fourth and Fourteenth Amendments to United States Constitution, hence, court order denying suppression of this evidence must be reversed. 2. <italic>Search Without Warrant — Valid — Probable Cause — Armed and Dangerous</italic><italic>— Limited Search — Weapons.</italic> A search without a warrant would be considered valid if: (1) at time defendant identified himself, officer had probable cause to arrest; <italic>or</italic> (2) officer was justified in believing that he was dealing with a potentially armed and dangerous individual, and to insure his own safety conducted a limited search for weapons. 3. <bold>ARREST</bold> — <italic>Without Warrant — Offense — Commission — Belief — Person —</italic><italic>Statute.</italic> Under C.R.S. 1963, 39-2-20, an arrest without a warrant may be made by an officer "when a criminal offense has in fact been committed, and<page_number>Page 70</page_number> he has reasonable ground for believing that the person to be arrested has committed it." 4. <italic>Probable Cause — Reasonable Grounds — Equivalent.</italic> The terms probable cause and reasonable grounds are substantially equivalent in meaning. 5. <italic>Probable Cause — Existence.</italic> Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed. 6. <italic>Suspect — Questioning — Defendant — Approached — Hesitated — Turned</italic><italic>— Lack of Probable Cause — Burglary — Other Criminal Act — Testimony —</italic><italic>Negative.</italic> Where officers already had one suspect in their car and were questioning him when defendant approached, and at distance of approximately one block from unmarked police car hesitated, then turned and walked the other way, disappearing around a corner, <italic>held</italic>, under such circumstances probable cause to arrest was not shown; especially, where there was nothing in testimony of officer to indicate that he considered defendant a suspect in burglary or a suspect in any other known criminal act. 7. <bold>COURTS</bold> — <italic>United States Supreme Court — Limited Search — Weapons — Lack</italic><italic>of Probable Cause — Permissible.</italic> Under the United States Supreme Court case of <italic>Terry v. Ohio</italic> a limited search for weapons without probable cause to arrest is allowable under certain circumstances. 8. <bold>ARREST</bold> — <italic>Search — Stop and Frisk — Limitation — Outer Clothing.</italic> The right to "stop and frisk" is not an open invitation to conduct what amounts to an unlimited search incident to arrest, but is a limited search of the outer clothing for weapons. 9. <italic>Lack of Probable Cause — Gold Ring — Pocket — Seized — Frisk — Pat</italic><italic>Down — Search — Weapons — Unlawful — Suppression — Proper.</italic> Where there was no probable cause to arrest defendant, and there was no showing that gold ring in defendant's pocket could reasonably be seized during a "frisk" and "pat down," <italic>held</italic>, under the circumstances, seizure of ring from defendant's coat during alleged search for weapons was not lawful; it, therefore, must be suppressed as evidence against defendant charged with burglary.

1. <bold>HOSPITALS</bold> — <italic>Statute — Statute of Limitations — Action — Licensed Health</italic><italic>Establishment — Negligence — Two Years.</italic> Hospital which was licensed under C.R.S. 1963, 66-4-1 was clearly embraced within provisions of statute of limitations prohibiting the bringing of an action to recover from a "licensed health establishment" due to alleged negligence unless such action be instituted within two years after the cause accrued. 2. <bold>LIMITATION OF ACTION</bold> — <italic>Staph Infection — Hospital — Knowledge —</italic><italic>Operation — Two-year Statute — Bar — Negligence — Res Ipsa Loquitur.</italic> Where complaint alleged that plaintiff contracted a staphylococcus infection about the time of her operation and brought action against hospital to recover damages for such infection, in the absence of something appearing to the contrary, it can be implied that plaintiff knew of the infection about the time of her operation, hence, two-year statute of limitations barred claims predicated upon negligence and <italic>res ipsa loquitur</italic> brought nearly five years after the operation. 3. <italic>Staph Infection — Hospital — Two-year Statute of Limitations — Duty</italic><italic>— Plaintiff — Court.</italic> If plaintiff, who brought action against hospital to recover for staphylococcus infection, discovered the infection more than three years following the surgery so as to bring action brought five years after surgery within two-year statute of limitations, <italic>held</italic>, under the circumstances there was a duty upon plaintiff to call such fact to the attention of the court. 4. <italic>Action — Damages — Tort — Implied Contract — Licensed Health</italic><page_number>Page 99</page_number><italic>Establishment — Two Years — Statute.</italic> C.R.S. 1963, 87-1-6, limiting the time with which an action may be brought to recover damages against a licensed health establishment applies to actions which sound in tort or implied contract; and suit must be instituted within two years after such cause of action accrued. 5. <bold>PLEADING</bold> — <italic>Hospital — Staph Infection — Negligence — Alternative —</italic><italic>Express Contract.</italic> In action against hospital to recover for staphylococcus infection, plaintiff may plead under Colorado practice that there was an express contract as an alternative to her claim for negligence. 6. <bold>JUDGMENT</bold> — <italic>Summary — Staph Infection — Hospital — Breach of Warranty —</italic><italic>Express or Implied — Two-Year — Six-Year — Statute of Limitations — Express</italic><italic>Contracts.</italic> In action against hospital to recover for staphylococcus infection, where trial court granted hospital's motion for summary judgment with reference to plaintiff's third claim which was predicated on breach of warranty made expressly or impliedly that the facilities would be fit for use intended by plaintiff, <italic>held</italic>, under the circumstances, the motion should have been denied as the six-year statute of limitations applies to <italic>express</italic> contracts.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Employee — Police Department — Invitation —</italic><italic>Apartment — Articles — Informant — Exploratory Search — Negative.</italic> Where defendant invited police department employee to his apartment because defendant was considering leaving city and employee might want to rent apartment, and where employee did visit defendant at apartment and there saw articles described by informant and noted similarity to descriptions contained in theft reports, <italic>held</italic>, visit to apartment by employee was not an exploratory search of a police agent as contended by defendant; actually, record reflects ample evidence to support court's finding that visit by employee was legitimately in response to an invitation by defendant, and search was not invalidated by fact that he made observations which became part of basis for warrant. 2. <italic>Affidavit — Corroborative Information — Sufficiency — Reliability —</italic><italic>Informant — Similarity of Descriptions — Police Department Employee —</italic><page_number>Page 104</page_number><italic>Probable Cause — Warrant.</italic> Where affidavit to obtain search warrant contained information that descriptions of allegedly stolen articles by informant and by police department employee were similar to those given by persons from whom items had been stolen, <italic>held</italic>, contention of defendant — that affidavit did not contain sufficient corroborative information as to reliability of informant and employee — is without merit; actually, similarity of descriptions given by these two persons of articles in defendant's apartment with descriptions contained in theft reports was sufficient independent proof of reliability of informant and employee and constituted sufficient probable cause for issuance of warrant. 3. <bold>CRIMINAL PROCEDURE</bold> — <italic>Evidence — Search — Apartment — Seizure — Warrant</italic><italic>— Theft — Articles — Unspecified — Specified — Admissible.</italic> In prosecution for theft, where evidence disclosed that sheriff who was conducting search of defendant's apartment had reason to believe that many of the articles seized (which were not designated in search warrant) may have been stolen,<italic>held</italic>, under the circumstances, seizure of property not specified in warrant did not render the specified items inadmissible.

1. <bold>ARREST</bold> — <italic>Probable Cause — Practical Considerations — Reasonable and</italic><italic>Prudent.</italic> Probable cause is a matter of everyday practical considerations upon which reasonable and prudent men act. 2. <italic>Arrangement — Police — Purchase of Drugs — Flashing of Brake Lights</italic><italic>— Package in Plain View — Probable Cause — Seizure — Legal.</italic> In situation involving "arrangement" by police department to purchase narcotic drugs, where officer, by <italic>prearranged signal</italic>, flashed his brake lights to indicate to detective and other officer hiding in nearby garage that deal was completed whereupon both officers approached Volkswagen bus which had previously pulled up to scene and ordered defendant driver to come out, and where, after arresting defendant as he stepped from bus, officer noticed that package on front seat was in plain view, which he seized and which later proved to contain additional quantities of illegal drugs, <italic>held</italic>, under the circumstances, officer had probable cause to arrest defendant and ensuing confiscation of package was therefore legal. 3. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Police — Arrangement — Purchase — Arrest —</italic><italic>Probable Cause — Package — Plain View — Evidence.</italic> In situation involving "arrangement" by police department to purchase narcotic drugs, where arrest was made with probable cause, package in plain view after defendant exited from his vehicle could properly be used in evidence against him. 4. <bold>SEARCHES AND SEIZURES</bold> — <italic>Package — Drugs — Front Seat — Vehicle —</italic><page_number>Page 130</page_number><italic>Transaction — Officers — Arrest — Probable Cause.</italic> Where package containing narcotic drugs was on front seat of defendant's motor vehicle in plain view during transaction between codefendant and officers relating to sale of illegal drugs, yet, even if there was a search, the arrest being legal, the search was not violative of the State and Federal constitutions regarding unreasonable search and seizure where circumstances justifying the arrest were also those furnishing probable cause for the search.

1. <bold>WITNESSES</bold> — <italic>Claimants — Estate — Mentally Competent Person — Dead Man's</italic><italic>Statute — Guardians — Inapplicable.</italic> In action by claimants for salary and overtime due them for estate of mentally <italic>competent</italic> person, (ward), guardians of such person cannot use Dead Man's Statute for purpose of excluding evidence in action against estate; statute is inapplicable to voluntary estate proceeding. 2. <bold>EVIDENCE</bold> — <italic>Shop-book Rule — Object — Use Own Books — Statute.</italic> The object of C.R.S. 1963, 154-1-3 entitled "Book Account, How Identified" is to enable a party to use his own books as evidence in his own behalf; and rule so embodied in statute is commonly referred to as the "shop-book rule." 3. <italic>Use — Own Books — Condition Precedent — Admission — Shop-book Rule.</italic> When a party seeks to use his own books, it is incumbent upon him, as a condition precedent to their admission into evidence, to show that the book contains <italic>original entries;</italic> that the <italic>entries</italic> therein <italic>were made by himself or</italic><page_number>Page 455</page_number><italic>his employee;</italic> that they are <italic>true</italic> and <italic>just;</italic> and that they <italic>were made in the</italic><italic>usual course of trade.</italic> 4. <italic>Claimants — Salary — Overtime — Mentally Competent — Ward — Tavern</italic><italic>— Shop-book Rule — Ordinary Rules.</italic> Where claimants for salary and overtime due them from estate of mentally competent person (ward) sought to offer in evidence records of tavern to prove their claims had not been paid, and guardians objected to admission into evidence of these records on grounds that no proper foundation had been laid for their introduction under "shop-book rule," and court sustained the objection, <italic>held</italic>, trial court erred, since "shop-book rule" was inapplicable, and on retrial the ordinary rules of evidence should be applied to the admissibility of evidence; actually, "shop-book rule" applies only when party seeks to use his own books as evidence, and ordinary rules of evidence apply when party seeks to introduce books of another.

1. <bold>SOCIAL SECURITY AND PUBLIC WELFARE</bold> — <italic>Unemployment Compensation —</italic><italic>Maternity Leave — Special Award — Proper.</italic> Where unemployment compensation claimant's job had been filled because of her extended period of maternity leave and there was no opening available for her at her former place of employment, and where, after an examination of her claim, she was given an award under the Special Award section of the statute, <italic>held</italic>, under the circumstances, her contention — that the Commission erred in applying the Special Award section to the facts of her case and that it should have made its award to her under the applicable section which concerns Full Awards — is without merit; especially, since she was not laid off for lack of work, nor for any condition of health, injury or illness, nor for any of the other conditions specified for which Full Award could be made. 2. <italic>Voluntary Separation — Pregnancy — Special Award.</italic> Voluntary separation from employment due to pregnancy entitled claimant only to special award of unemployment compensation benefits which was payable to her after she reentered the labor market and worked thirteen weeks in full-time employment. 3. <italic>Voluntary Separation — Pregnancy — Special Award — Filing — Claim —</italic><italic>Security Act.</italic> Where claimant, who was voluntarily separated from her<page_number>Page 477</page_number> employment because of pregnancy, argued that she did not make claim for special award benefits but rather for full award benefits and that it was therefore error to grant her a special award, <italic>held</italic>, there is no merit to the argument; actually, her claim was filed for benefits under the Colorado Employment Security Act and not for any particular kind of benefits. 4. <italic>Employment Security Act — Claim for Benefits — Duty of Deputy —</italic><italic>Examination — Determination — Award — Proper.</italic> Where claim was filed for benefits under the Employment Security Act, it was the administrative duty of the deputy to examine the claim, determine its validity and make an award of appropriate benefits, which was done in instant case. 5. <bold>LEGISLATURE</bold> — <italic>Reasonable Classifications of Workers — Compensation —</italic><italic>Standards — Distributions — Discretion.</italic> The establishment of reasonable classifications of workers, the grounds upon which compensation may be awarded, the standards of eligibility and disqualification, and the formulae by which distributions are to be made are all matters within the sound discretion of the legislature. 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Woman Worker — Pregnant — Separate Classification</italic><italic>— Reasonable.</italic> Where a woman worker has become pregnant and placed in a separate classification founded on the special consideration of pregnancy,<italic>held</italic>, such a classification cannot be said to be unreasonable and therefore unconstitutional in light of the disability caused by a condition of pregnancy in relation to her employment responsibilities. 7. <italic>Equal Protection — Postponement of Payment — Special Award —</italic><italic>Re-entry — Labor Market — Maternity — Weeks of Work — Completion.</italic> There is no violation of the constitutional guarantee of equal protection by reason of postponement of payment of special award benefits until after re-entry into labor market of woman who has taken maternity leave and completion of 13 full weeks of work. 8. <bold>SOCIAL SECURITY AND PUBLIC WELFARE</bold> — <italic>Unemployment Compensation —</italic><italic>Classifications — Pregnant Worker — Denial of Equal Protection — Negative.</italic> In view of the general policy and intent of the unemployment compensation benefit statute as spelled out by the legislature, reviewing court finds no unconstitutional denial of equal protection of the law by reason of the classifications adopted by the legislature; they are reasonable, based on proper and justifiable distinctions, and particularly so as concerns the pregnant worker classification.<page_number>Page 478</page_number>

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>California — Denver Narcotics Bureau —</italic><italic>Dangerous Drugs — Air Freight Agent — Inspection — Package — Arrest —</italic><italic>Proper — Probable Cause.</italic> Where Denver narcotics bureau received word by telephone from sheriff's office in Redwood City, California that package containing dangerous drugs was being shipped by air freight from San Francisco to Denver, addressed to defendant in Boulder, Colorado, and air freight agent in San Francisco, after receiving package and fearing package might contain bomb, opened package on his own initiative and observed five<page_number>Page 486</page_number> plastic bags containing purple colored tablets (LSD), notified sheriff, removed one such bag and shipped remaining four bags on to Denver where defendant, having appeared at airport to claim package, was placed under arrest by officers and package was seized, <italic>held</italic>, notwithstanding the fact that no search or arrest warrants had been issued by either California or Colorado authorities, search and seizure did not violate defendant's constitutional rights under either Federal or State Constitution; and under the circumstances, there was probable cause to make arrest and seizure in Denver. 2. <bold>AVIATION</bold> — <italic>Line — Right to Make Independent Investigation — Protection</italic><italic>— Bomb — Search — Without Participation of Police — Lawful.</italic> An airline has a right to make its own independent investigation in its own interests to protect lives and property from possible destruction from bombing; hence, search conducted by airline's agents without instigation or participation of law enforcement officials was a lawful private inspection. 3. <italic>Duty — Discovery of Contraband — Notification of Authorities.</italic> An airline, upon discovery of contraband, has a duty to notify the authorities. 4. <bold>ARREST</bold> — <italic>Airline Freight Agent — Private Inspection — San Francisco —</italic><italic>Information — Officers — Package — Dangerous Drugs — Foundation — Probable</italic><italic>Cause — Destination — Denver.</italic> Where airline freight agent in San Francisco made search on his own initiative of package accepted for shipment, <italic>held</italic>, this was a lawful private inspection; and information obtained by officers after they had been notified by agent that package contained dangerous drugs was not "tainted" and could serve as foundation for probable cause to make arrest and seizure at destination in Denver to which package was addressed. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Discovery — Contraband — Private Inspections —</italic><italic>Permissible.</italic> Discovery of contraband which is the result of <italic>private</italic><italic>inspections</italic> is constitutionally permissible. 6. <bold>ARREST</bold> — <italic>Warrants — Issuance — Oath — Arrestee — Commission — Offense.</italic> Arrest warrants are issued only on oath that the arrestee has committed a criminal offense. 7. <italic>Probable Cause — California — Package — Contraband — Air Freight</italic><italic>Station — Denver — Search and Seizure — Lawful.</italic> Where officers had probable cause to believe that a course of criminal conduct involving<page_number>Page 487</page_number> packaged contraband had been initiated in California in which defendant was likely to become involved, and where defendant appeared at air freight station in Denver and claimed the package, <italic>held</italic>, under the circumstances, defendant became an active participant in the criminal conduct for which his arrest could be lawfully effected without a warrant; hence, the search and seizure of the dangerous drugs, being incident to a lawful arrest, was likewise lawful.