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Aspen Airways, Inc. v. Rocky Mountain Airways, Inc.

Court of Appeals of Colorado, Second Division
Jan 18, 1972
494 P.2d 600 (Colo. App. 1972)

Opinion

         John F. Mueller, Denver, for plaintiff-appellant.


         Schneider, Shoemaker, Wham & Cooke, Robert S. Wham, Elwyn F. Schaefer, Denver, for defendant-appellee.

         PIERCE, Judge.

         Plaintiff, in its complaint, alleged, among other things:

         (1) that both parties are public utilities and have authority to transport passengers by air between prescribed points within the State of Colorado;

         (2) that plaintiff had a valid Certificate of Public Convenience and Necessity allowing it to fly passengers between the cities and towns involved;

         (3) that between the dates in question defendant held no Certificate of Public Convenience and Necessity to transport passengers between Eagle and Aspen or Denver and Aspen, Colorado;

         (4) that during this period defendant flew passengers between the aforementioned points, thereby damaging plaintiff's business; and

         (5) that plaintiff was entitled to damages under the authority of C.R.S.1963, 115--5--1 and 115--7--2.

         Upon plaintiff's filing the complaint, defendant moved for dismissal which was granted. We reverse that dismissal.

         We are not apprised of the trial court's reason for dismissing the complaint, and we can only assume that it ruled the complaint failed to state a claim for relief, the only ground stated in the motion to dismiss.

         C.R.S. 1963, 115--5--1 provides as follows:

'(1) No public utility shall begin the construction of a new facility, plant, or system, or of any extension of its facility, plant, or system, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require such construction.'

         C.R.S.1963, 115--7--2(1) states as follows:

'In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by the constitution, any law of this state or any order or decision of the commission, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom. If the court shall find that the act or omission was willful, the court, in addition to the actual damages, may award damages for the sake of example and by way of punishment. An action to recover such loss, damage or injury may be brought in any court of competent jurisdiction by any corporation or person.'

         The allegations of the complaint are sufficient to state a claim for relief under the cited statutes and, if proven, would entitle plaintiff to appropriate relief.

         Due to the status of the case at this juncture, we do not rule on the legality of a temporary permit asserted to have been issued to defendant or on any other matter of defense argued by the parties but not properly before either the trial court or this court at this time.

         The judgment is reversed and the cause is remanded with directions to reinstate the complaint and for further proceedings not inconsistent with this opinion.

         COYTE and SMITH, JJ., concur.


Summaries of

Aspen Airways, Inc. v. Rocky Mountain Airways, Inc.

Court of Appeals of Colorado, Second Division
Jan 18, 1972
494 P.2d 600 (Colo. App. 1972)
Case details for

Aspen Airways, Inc. v. Rocky Mountain Airways, Inc.

Case Details

Full title:Aspen Airways, Inc. v. Rocky Mountain Airways, Inc.

Court:Court of Appeals of Colorado, Second Division

Date published: Jan 18, 1972

Citations

494 P.2d 600 (Colo. App. 1972)