Opinion
June 30, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Gorsuch, Kirgis, Campbell, Walker & Grover, Richard B. Harvey, Denver, for plaintiff in error.
Spiro A. Fotopulos, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
William George Clossen sued Royce Edward Gilpatric and the appellant, The Firestone Tire & Rubber Company, for personal injuries suffered by Clossen as a result of an automobile accident in which Gilpatric collided with the rear end of Clossen's automobile. At trial, after the close of all of the evidence, the trial court directed a verdict against both Gilpatric and Firestone on the question of liability, ruling as a matter of law that Gilpatric was acting within the scope of his employment by Firestone at the time of the accident. The only question which was submitted to the jury was that of determining the amount of damages to be awarded to Clossen. At the time of submitting such issue to the jury, the trial court included in its instructions directives that the jury take into consideration future medical expenses and also the loss of future earning capacity on the part of Clossen.
From the jury award and the judgment subsequently entered thereon, only Firestone has appealed. No contest is made here by Firestone as to the fact that there was actionable negligence as between Clossen and Gilpatric with respect to the accident. Firestone contends principally that it was error for the trial court to rule as a matter of law that Gilpatric was acting within the scope of his employment at the time of the accident. Firestone also submits that it was improper for the trial court to instruct the jury as to matters on which no evidence was presented. We agree with Firestone's contentions.
It appears that the basis for the trial court's ruling on the question of whether Gilpatric was acting within the scope of his employment was that the evidence is void of an affirmative declaration by Gilpatric that he was not acting within the scope of his employment when the accident occurred. Although this is true, the evidence did show that on the date of the accident Gilpatric, who held a management position with Firestone, had returned to Denver, Colorado, from an out-of-town business trip made by airplane. Upon his return, he left the airport in Denver and drove to his permanent apartment in Denver. He then left his apartment, driving his Firestone Company car. It was uncontroverted that his principal purpose in leaving his apartment at such time was to eat dinner at a restaurant. The evidence then discloses that following this time Gilpatric engaged in extensive drinking of alcohol; that he had no recollection of having any contact or conversation with any one concerning Firestone Company business. There is no evidence that he in any way served the business interests of Firestone during the course of the evening. Gilpatric did think that he had been to a Firestone Company party. However, there was substantial evidence to the effect that there was no known Firestone Company party on the night of the accident. To the extent that Gilpatric's testimony as to his activities on the night of the accident can be categorized at all, it can only be said that he had been driving aimlessly prior to the time of the collision.
Considering this evidence in the light most favorable to Firestone, it is our opinion that different conclusions might be drawn by fair-minded men as to whether Gilpatric was or was not acting within the scope of his employment at the time of his collision with Clossen's automobile. Accordingly, under the mandates of our Supreme Court, this question became one which should have been submitted to the jury for its determination as the trier of fact. Elliott v. Hill, 148 Colo. 553, 366 P.2d 663; Swanson v. Martin, 120 Colo. 361, 209 P.2d 917.
Although our ruling as to the impropriety of the trial court's directed verdict on the question of Firestone's liability is dispositive of the case, under the ultimate order of this opinion that case will be remanded for new trial. Such being the case, we comment here upon the propriety of the instructions given by the trial court concerning the future medical expenses of Clossen and his possible loss of earnings. In this connection, Firestone contends that there was no evidence produced at trial to show the cost or reasonable value of the future medical expenses and that there was no evidence of any impaired future earnings capacity on the part of Clossen. We do not rule here upon such factual aspects of the case. However, we do direct that it would be improper for the trial court to instruct the jury on these questions in the absence of evidence which would support a jury award for such damage items. See Shay v. Parkhurst, 38 Wash.2d 341, 229 P.2d 510, as to the value of future medical expenses; and J. C. Penney Company v. Brown, 155 Colo. 212, 393 P.2d 575, on the point of future loss of earnings.
The judgment of the trial court is hereby reversed, and this cause remanded with instructions that a new trial be held on all issues as between the parties to this appeal.
COYTE and PIERCE, JJ., concur.