Page images

7. APPEAL AND ERROR (8 695*) — REVIEW ordinary writing paper. The two cards and RECORD-EVIDENCE.

The court will not review the sufficiency of the receipt on paper were put in evidence the evidence where it appears from the abstract by the plaintiff, and defendant now claims that much of the evidence has been omitted. that the court committed error in admitting

(Ed. Note.-For other cases, see Appeal and the two cards upon which the receipts were Error, Cent. Dig. $8 2911-2915; Dec. Dig. & written. It is difficult to understand in what 695.* ]

particular the defendant claims it was error Appeal from El Paso County Court; Rob- to admit these cards. She does not make her ert Kerr, Judge.

reasons for the alleged error plain. The Action by Louise Schneider against Elma objection made below went to the three reM. Gill. From a judgment for plaintiff, de- ceipts, seemingly because of the printed matfendant appeals. Affirmed.

ter on the back of the two cards. The three John W. Kriger and W. M. Swift, for ap- receipts would have been excluded had the pellant. John M. Johnson, for appellee.

objection been sustained as made. The re

ceipts were certainly admissible in evidence MUSSER, J. This action was commenced as tending to prove the payment of the con· before a justice of the peace and taken on sideration to the defendant. The plaintife's appeal to the county court. There are no testimony tended to show that the agreement written pleadings. From the evidence, it was, not that the defendant would treat the appears that the action is to recover dam- plaintiff for the tumors, but that the defendages for an alleged breach of contract. The ant would, in three months, remove the plaintiff was afflicted with tumors, and the tumors. It will be noticed that the matter evidence on her behalf showed that the de- on the cards did not, in any manner, qualify fendant guaranteed to remove those tumors or limit the ability of the defendant to perin three months, by means of her particular form those things which the card said she mode of treatment. The plaintiff was to pay could do, and for this reason, if for no other, the defendant $50 for the first month's treat the printed matter was admissible in eviments and $40 for each of the other two dence for what it was worth, as tending to months; the payments to be made monthly corroborate the claim of plaintiff. in advance. The plaintiff made these pay

In two of the instructions, the jury were ments as required, in all $130. The plaintiff told by the court that, if they found certain claimed that the treatments did not remove facts, their verdict should be for the plainthe tumors, or relieve them, and that she tiff. The defendant says that the court comhad to have them removed by an operation mitted error in prefacing the instructions by performed by a regular physician. Plaintiff the words, "if you find,” instead of "if you also claimed that, besides paying out the find from the evidence,” and calls attention : $130, she was otherwise damaged by loss of to several decisions in this court where the time in her occupation as a cook, in conse- instructions were prefaced by the words, "if quence of the failure of the defendant to per. you believe," instead of "if you believe from form her contract. The first contention of the evidence.” To avoid contention, it will the defendant is that the court erred in be assumed with the defendant, for the pur. denying her motion to require the plaintiff pose of this case, that the words "if you to elect whether she sought to recover for find" have the same import and leave the breach of contractor for fraud. No such same impression as the words "if you bemotion appears in the printed abstract. Fur- lieve." In Salomon v. Webster, 4 Colo. 353, thermore, there was no basis for such a mo- it is said that an instruction prefaced by tion in the case. At the time arrangements the words “if you believe,” without adding were first made for treatments, the plaintiff “from the evidence," is objectionable, "and, received from the defendant a receipt for the in a case where the evidence is quite evenly first month's compensation, written on the balanced, might be a ground of reversal." reverse side of one of defendant's printed In Ingols v. Plimpton, 10 Colo. 535, 539, 16 business cards. The card and the receipt Pac. 155, 156, it was said that an instruction on the reverse side were as follows:

beginning “if you believe,” without adding

the words "from the evidence," was faulty, Elma M, Gill The Electro Biologist

if standing alone. In Gorman v. People, 17 Can cure any and all chronic diseases, also re

Colo. 596, 31 Pac. 335, 31 Am. St. Rep. 350, it move cancers and tumors without operation or was said of such an instruction: "It is drugs. 217 S. 4th Street, West Colorado doubtful, however, if this judgment should Springs.

be reversed solely on account of such an Received from Mrs. Schneider $50.00, being omission in the charge. Jurors generally unpayments in full for one month's treatments, derstand that they are to decide all cases dating from Sept. 22nd.

Elma M. Gill.

solely upon the evidence introduced at the The receipt for the payment for the second trial. In every case the oath administered to month's treatments was written on the re-them calls for a determination of the issues verse side of a similar card. The receipt for upon the evidence, and in the absence of a the third month's treatments was written on showing to the contrary it is to be presumed

[ocr errors]

that they have acted in accordance with this, have been given. The matter of evidence oath.” In this case the instructions objected cannot be gone into for the reason that the to do not stand alone. In addition to the evidence appearing in the abstract is conflictoath administered to the jury in which they | ing, and further it appears from the abstract were told to determine the issues upon the itself that much of the evidence has been evidence, the court, in one instruction, told omitted. There is no reason why this judgthe jury that they must believe from a pre-ment should be reversed. It is therefore afponderance of the evidence all the facts (re-firmed. citing them) upon which the plaintiff could Judgment affirmed. recover, before they could award her damages, and if they did not so believe from the STEELE, C. J., and BAILEY, J., concur. preponderance of the evidence, she could not recover, and in another instruction the court told the jury that the burden of proof was

(48 Colo. 411) upon plaintiff to sustain the issues by a

McPHAIL V. DELANEY, Chief of Police. preponderance of the evidence for the amount

(Supreme Court of Colorado. July 5, 1910.) which she claims, and unless they believed Prisons ($ 10*) — CONSULTATION OF ATTOBfrom a preponderance of the evidence that

NEYS WITH PRISONERS-REFUSAL TO ALLOW the plaintiff had sustained damages as stated -RIGHT OF ACTION—*PERSON AGGRIEVED." in her proof, they must find for the defend

Mills' Ann. St. $ 210, provides as to officers

or others having any person in custody that ant. The jury certainly understood from they shall admit an attorney whom such person these instructions that they must find the may desire to see or consult, and that any facts from a preponderance of the evidence. officer violating such provision shall forfeit and In instruction No. 5, the court instructed the pay a certain sum to the person aggrieved" to

be recovered by action. Held to give a right jury that when a person sends out business of action only to the person in custody, and cards, stating their ability to do and perform not to the attorney as the “person aggrieved." certain things, the law holds them to an

[Ed. Note.-For other cases, see Prisons, Dec.

Dig. § 10.* accountability to perform those things. Tue

For other definitions, see Words and Phrases, defendant objects to this instruction because vol. 1, pp. 271–273; vol. 8, p. 7569.] it is not based on any evidence, and for no other reason. There was evidence concern

Error to District Court, City and County of ing the business cards of the defendant, Denver; Carlton M. Bliss, Judge. shown in the abstract. The first receipt giv

Action by Duncan McPhail against Michael en to the plaintiff, at the time the contract Delaney. There was a judgment for defend

Affirmed. was made, was written on one of these ant, and plaintiff brings error. business cards, and so was the second re- Duncan McPhail, in pro. per. H. A. Lindceipt. There was also other evidence about slėy und F. W. Sanborn, for defendant in the business cards shown in the abstract. error. Besides all this, a great deal of the evidence is omitted from the abstract as plainly ap- BAILEY, J. Section 210, Mills' Ann. St., pears therefrom. If parties desire an ob-provides as follows: jection to an instruction, to be considered "All public officers, sheriffs, coroners, jailers, because it is not based on evidence, it should constables, or other otficers or persons, havat least appear in the abstract that evidence ing in custody any person committed, imprisomitted does not relate to the matter cov- oned, or restrained of his liberty, for any alered by the instruction. Ten instructions leged cause whatever, shall, except in cases were requested by the defendant and refused of immediate danger of escape, admit any by the court. In excepting to the refusal to practicing attorney at law in this state whom give these instructions, the exceptions were such person restrained of his liberty may denot made separately to the refusal of each sire to see or consult, to see and consult such of the instructions as requested, but the person so imprisoned, alone and in private, exception was to the refusal of the court to at the jail or other place of custody; any give the requested instructions as a whole. officer violating this provision shall forfeit The matter contained in some of the instruc- and pay one hundred dollars to the person tions requested was sufficiently covered by aggrieved, to be recovered by action of debt the instructions given. Some of the request. in any court of competent jurisdiction." ed instructions were clearly wrong. Under Counting on this section for a cause of acsuch circumstances, the court did not err in tion, plaintiff, a practicing attorney, brought refusing to give the requested instructions suit against Michael Delaney, then chief of as a whole. Notwithstanding this state of police of the city of Denver, averring the latthe exceptions, the instructions requested ter's refusal to allow him to see and consult have all been carefully examined. The mat- one Sernado Callanan, then held in custody ter contained therein, which should have by Delaney, as such oflicial, it being also albeen given to the jury, was sufficiently cover- leged that the prisoner had retained McPhail ed by the instructions given, and the matter as her attorney, that she then and there denot in the instructions given ought not to sired to see and consult him, and that there

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

was no immediate danger of escape, should , which he is justly entitled, but this statute such permission be given and such consulta- does not undertake to furnish him protection. tion be had. Upon trial to the court the is- Whatever relief, if any, he may be entitled sues were found generally against the plain- to, cannot be secured by action under the tiff and in favor of the defendant, which statute, since it does not purport to provide general finding covers the question as to wheth- him a remedy. To entitle the plaintiff to the er, under the statute, the attorney is the per- relief here sought the provisions of the statson aggrieved. The court below found that ute should be clear and plain to that effect, the right of action is given only to the per- while, as matter of fact, the exact contrary is son in custody, and not to the attorney, and true. The judgment of the trial court in disat the close of plaintiff's testimony, on mo- missing the action was right, and is affirmed. tion, for that reason, dismissed the case. To Judgment affirmed. review that finding and judgment plaintiff brings the case here on error.

STEELE, C. J., and WHITE, J., concur. We determine the single question as to who is, under the statute, the person aggrieved. The statute reads the person aggrieved. It

(48 Colo. 373) is in the singular, not persons. It employs

DONLEY V. BAILEY. the definite article; neither does it say any person aggrieved, it says the person, that is, (Supreme Court of Colorado. July 5, 1910.) but one person has a cause of action. It fol- 1. EVIDENCE ($ 213*)-ADMISSIONS-OFFERS OF

COMPROMISE. lows that, arising out of a single violation of the statute, there can be but one cause of ac- toward a compromise and made for the purpose

Offers made during negotiations looking tion and but one recovery. There is but one of avoiding litigation are inadmissible. aggrieved person, either the attorney or the [Ed. Note.-For other cases, see Evidence, prisoner. If the attorney may recover the Cent. Dig. 88 745–751; Dec. Dig. $ 213.*] one in custody cannot, and if the latter may 2. EVIDENCE (261*)-ADMISSION OF LIABILIthe attorney cannot. This being manifest, it TY-DETERMINATION. only remains to determine to which one is In determining whether evidence of admis

sion of liability is inadmissible because an offer given the right of action. In other words, in of corupromise, there is a preliminary question whose interest and for whose benefit and pro- of fact either for the court, or, under certain tection was the statutory cause of action cre- circumstances, for the jury, whether or not the ated, for that is all it is. The words of the offer to pay an amount in settlement of the

claim was an admission of real or absolute liastatute directly refer to the prisoner, as being bility, or made merely by way of compromise to the one to whom, if his wish to see and consult avoid litigation, or to otherwise purchase peace, an attorney is denied, a right of action is given. without intending to admit any real liability. That is, where one in custody, charged with a

(Ed. Note.--For other cases, see Evidence, criminal offense, having a desire to see and Cent. Dig. $8 1013–1018; Dec. 'Dig. § 261.*] consult an attorney, there being no immediate 3. APPEAL AND ERROR ($ 992*) — REVIEW danger of escape if such interview be permit


A finding of fact, whether the admission of ted, is refused that right, a statutory cause liability was made as an offer of compromise, of action arises in his favor against an of- or as an absolute admission of liability in deterficer who, by such refusal, violates an express mining the admissibility of the admission, if

against the evidence, is error, the same as the provision of the law.

finding of any other material fact would be The statute is plainly intended for the ex error, when against the evidence. clusive protection and benefit of the prisoner. [Ed. Note. For other cases, see Appeal and The object is to give the individual re- Error, Cent. Dig. § 3850; Dec. Dig. $ 992.*] strained of his liberty the opportunity to see 4. EVIDENCE ($256*)--ADMISSION-DETERMIand consult an attorney, to determine wheth

NATION OF ADMISSIBILITY. er he is unlawfully imprisoned, and to pre- liability to his broker for commissions, evidence

On the issue whether a principal admitted pare for and properly make defense against held suflicient to support a finding that it was whatever charge is preferred. Under our the admission of an absolute liability, and not Constitution and laws, the accused has the merely an offer of compromise to avoid litigaright to have the advice and assistance of tion, or to purchase peace, and hence was admis

sible as an admission. counsel in defense, to know the accusation

[Ed. Note.-For other cases, see Evidence, made, and to have a speedy trial. Manifest- Cent. Dig. $$ 1003, 1005; Dec. Dig. $ 256.*] ly this statute was intended, in a measure at 5. APPEAL AND ERROR ($ 992*)-REVIEWleast, to preserve to the accused these rights CONFLICTING EVIDENCE-DETERMINATION OF and protect him in them. The one denied ADMISSIBILITY. rights of such paramount importance must

Where the evidence is merely in conflict on

an issue whether an admission of liability by a of necessity be the person aggrieved. The principal to his broker for commissions was an statute cannot well be held to refer to any absolute admission, or an offer of compromise other.

to avoid litigation or to purchase peace, the It may be that plaintiff, in his capacity as will not be disturbed.

finding of the court in admitting the evidence an attorney, has been, by the conduct of the

(Ed. Note.-For other cases, see Appeal and defendant, deprived of certain privileges to ) Error, Cent. Dig. $ 3830; Dec. Dig. $ 992.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

6. TRIAL (8255*) — NECESSITY FOR REQUEST | defendant admitted that he entered into a FOR INSTRUCTIONS.

contract to pay the plaintiff $500 to procure Though the court determined the admissibility of an admission of liability by a principal a purchaser for the said premises, but denied to his broker for commissions, without submit that he ever entered into any contract to pay ting the question to the jury, it is not error, him any sum for procuring a lessee. The where no instruction was requested to that ef- jury returned a verdict for plaintiff in the fect; since a mere nondirection is not error.

[Ed. Note. For other cases, see Trial, Cent. sum of $542, and from a judgment upon this Dig. 88 627-641; Dec. Dig. 8 255.*]

verdict, the defendant appealed. 7. BROKERS 8*)-COMMISSIONS-EVIDENCE.

The first assignment of error discussed by On an issue whether a principal contracted the appellant relates to the admission of cerwith a broker for compensation for finding a tain testimony, which, it is claimed, was inlessee for the property, as well as a purchaser, testimony on the part of the principal to rebut admissible because it was an offer of comthe testimony of the broker that such was the promise on the part of the defendant. A Mr. fact, that he had another offer from another Linkletter had seen the defendant on behalf party to take a lease and had refused to consider of the plaintiff, and afterwards there was a it, because he wanted to sell the property and not lease it, is irrelevant, where the offer was meeting in Mr. Linkletter's office. With refmade after the contract was entered into. erence to this meeting, the plaintiff testified:

[Ed. Note.-For other cases, see Brokers, “Mr. Linkletter was present and Mr. Donley Cent. Dig. $ 9; Dec. Dig. $ 8.*)

says, 'I came up to see if we could fix up 8. INTEREST ( 31*) — RATE — "ACCOUNT". our matter.' And I says, 'All right, Joe, I CLAIM BY BROKER.

Under Rev. St. 1908, § 3162, providing that have written out an order for $100 payments. creditors shall be allowed to receive interest, commencing on the 15th of February and when there is no agreement as to the rate there- payable in five months, at $100 a month, of, at the rate of 8 per cent. per annum on money due on “account from the date when the which order would be accepted by the Brookssame became due, the claim of a broker of a

Harrison Fuel Company; that is, Mr. Brooks.' contract sum for finding a lessee of property is And Donley says, 'Is Ed Coats in this deal?' within the term “account," and the broker is en- I says, 'No, sir; Ed Coats is not in this deal; titled to interest at the rate of 8 per cent. (Ed. Note.-For other cases,

this is our own deal, mine and yours.' Don

see Interest, Cent. Dig. 88 64–67; Dec. Dig. § 31.*]

ley says, 'Well, it is too much; I will give 9. WORDS AND PHRASES—"ACCOUNT.”

you $250.'” It is to this last testimony, relaThe word "account” has various meanings, tive to the offer to pay $250, that the appeland is used in a variety of ways and senses; an lant specifically objects in his brief, because, account arises out of contract or some fiduciary as he says, it was an offer to compromise. relation; its ordinary commercial usage is to refer to a claim or demand growing out of the It has been decided several times in this state sale of goods, performance of services, and the that offers made during negotiations, looking like; when used alone, without words of limita- toward a compromise, and made only for the tion, extension, qualification, or explanation, it is sometimes equivalent to the word "claim" or purpose of avoiding litigation, are inadmis“demand," when referring to an indebtedness sible. . Patrick v. Crowe, 15 Colo. 543, 25 arising out of contract or some fiduciary rela- Pac. 985; C. B. & Q. Ry. Co. v. Roberts, 26 tion.

Colo. 329, 57 Pac. 1076; Thomas v. Carey, 26 [Ed. Note. For other definitions, see Words and Phrases, vol. 1, pp. 86-91; vol. 8, P. 7561.) Colo. 485, 58 Pac. 1093.

In the case of Patrick v. Crowe, the offer Appeal from District Court, Boulder Coun

was made by way of compromise to avoid litity; James E. Garrigues, Judge.

gation, and it was said that if either party, Action by Joseph R. Bailey against Joseph in the course of negotiations, admitted any Donley. From a judgment for plaintiff, de independent fact, such admission, if material, fendant appeals. Affirmed.

might be proper evidence against the party 0. A. Johnson (C. A. Prentice, of counsel), making it, or as elsewhere expressed, the adfor appellant. Norton Montgomery, Eliza- mission of liability is receivable in evidence, beth M. Brown, and H. Wendell Stephens, for even if made during the course of an attempt appellee.

to compromise. In the Roberts Case, the

court specifically found that the letter admitMUSSER, J. This action was brought to ted, when read in the light of the circumstanrecover a commission of $500 and interest ces of the case, was an offer made by way of thereon, alleged to have been earned by the compromise to avoid expense and litigation, plaintiff in procuring a lessee for coal lands and was not an acknowledgment of liability. of the defendant upon terms satisfactory to in the Carey Case, it is again specifically the latter. The complaint alleged that the found that the offer did not amount to an addefendant agreed to pay the plaintiff $500 if mission of liability upon either of the items the plaintiff would procure a purchaser for sued upon. Hence, an admission of actual the property, or one who would enter into a liability, even during negotiations for a comlease thereof satisfactory to the defendant, promise, or an offer of payment which admits and that the plaintiff did procure for the de- actual liability, is not within the rule of exfendant a prospective buyer or lessee for the clusion announced in those decisions. coal lands, with whom the defendant entered This matter can be best illustrated by quointo a satisfactory lease. In his answer, the tations from other authorities. In Hartford *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Bridge Co. v. Granger, 4 Conn. 142, 148, it is , without intending to admit any real liability. said: “The law on this subject has often been If the former, it is admissible; if the latter, misconceived; and it is time that it should be not admissible. The question involved is one firmly established. It is never the intend- of fact, to be determined by the court or by a ment of the law to shut out the truth; but jury, under certain circumstances. Colburn to repel any inference which may arise from v. Groton, supra. The finding of fact, in such a proposition made, not with design to admit a case, if against the evidence, is error, the the existence of a fact, but merely to buy same as the finding of any other material fact one's peace. If an admission, however, is would be error when against the evidence. made, because it is a fact, the evidence to In the decisions cited from our own court, the prove it is competent, whatever motive may offers of payment therein referred to were have prompted the declaration."

* clearly made, merely by way of compromise The question to be considered is, what was to purchase peace without admitting real the view and intention of the party in mak- liability, and hence the lower courts, in finding the admission; whether it was to concede ing that the offers were admissible, committed a fact hypothetically, in order to effect a set- error. In determining this preliminary questlement, or to declare a fact really to exist.” tion of fact, the intent of the party must be In Colburn v. Groton, 66 N. H. 151-156, 28 sought. In the Roberts Case, supra, our Atl, 95, 97, 98 (22 L. R. A. 763), it is said: court resorted to the circumstances of the "The preliminary question always is, not case and read the letter which had been admerely whether an admission of a fact was mitted in the light of those circumstances. made during a settlement or negotiation, but Indeed, as is seen from the above quotations whether a statement or act was intended to from the opinions of other courts, the time be an admission. It is a question, not of time when, and the circumstances under which, or circumstances, but of intention. On that the offers of payment were made may be question the time and circumstances may be resorted to for the purpose of determining material evidence. * An offer of pay- the intent of the party making it. ment, whether accepted or rejected, is evi- Let resort be had to the time and circumdence, when the party making it understood stances of the offer in the present case. Priit to be, and made it as, an admission of his or to the meeting in Mr. Linkletter's office, liability. It is not evidence when he made it Mr. Linkletter had seen the defendant on befor the purpose of averting litigation, not in half of the plaintiff, and with reference to tending to admit his liability." In Pentz v. this, testified: "I went to Denver at the rePenn. Fire Ins. Co., 92 Md. 444, 48 Atl. 139, quest of Mr. Bailey to see Mr. Donley and to it was said: "He was then asked what offer get an order from Mr. Donley to the Brooksof settlement he had made, and the court Harrison Fuel Company for $500. The orupon the objection of the defendant excluded ders were made out. Mr. Donley said he did the question. The word 'settlement,' as ordi- not owe Mr. Bailey $500, but that he did owe narily used, may mean a compromise for him $250. He would pay him no more, for peace sake of a claim, the validity of which the reason that Mr. Coats claimed $250, and is denied, or it may signify the payment of a he wasn't going to pay both.” Here is a diclaim to the extent to which it is conceded rect and unqualified admission, by the deto be due. If the witness in the present case, fendant, of actual liability. A few days aftby the use of the expression 'settlement,' er this, Mr. Linkletter and the plaintiff and meant a compromise in the strict sense of a the defendant met, and at that meeting, the claim under the policy, although no loss was offer to pay $250, which is objected to as eviadmitted, evidence of the compromise was dence, was made. The defendant said, “Well not admissible. If, on the contrary, he meant, it is too much; I will give you $250." In as his previous answers seem to indicate that the light of the admission of liability, he had he did, that there was a conceded loss under made a few days before, it is not unlikely the policy which he wished to settle, the dis- that the defendant meant the same thing at pute being merely as to the amount of the this meeting. He did not deny any liability. loss, the evidence was admissible

He said that $500 was too much, fairly imas sufficient evidence to go to the court, sit- plying that he did owe the plaintiff someting as a jury, from which he might infer thing, especially in the light of his previous that the refusal to pay a greater amount of admission. Elsewhere in the testimony of loss was upon other grounds than failure to plaintiff, it appears that the defendant refurnish proof of loss, and that therefore there quested another party to see the plaintiff and had been a waiver by the defendant of such settle with him for $250, but he did not claim proof."

to this party that he did not owe the defendThus it appears that before the admissibil. ant anything. In fact, nowhere in the record, ity of the evidence offered can be determined, so far as the evidence on behalf of the plaina preliminary inquiry must be made as to tiff is concerned, does it appear that the dewhether or not the offer to pay an amount in fendant ever denied liability, or that he ever, settlement of a claim contained, or was an expressly or impliedly, put his desire to pay admission of real or absolute liability, or $230 upon the ground that while he did not made merely by way of compromise to avoid owe anything, he was willing to pay that sum


« PreviousContinue »