Opinion
No. 70-075 (Supreme Court No. 22912)
Decided April 28, 1970. Rehearing denied May 19, 1970.
Action for damages resulting from the alleged negligent recapping of truck tires. From an award for the cost of repair of the truck, loss of use of the truck and price of the recapping, defendant appealed.
Affirmed in Part, Reversed in Part.
1. NEGLIGENCE — Evidence Supported — Knowledge of Defective Material — Failure to Inform — As Negligence — Affirmed. There was sufficient evidence to support the finding that defendant knew of the defective material used in the recapping of the truck tires; hence, the trial court's conclusion of defendant's negligence in not informing plaintiff of this fact will not be disturbed on review.
2. Contributory Negligence — Tort Principle — Bars All Recovery — Plaintiff — Before or Concurrently With — Damage. Contributory negligence is a tort principle which bars all recovery and consists of negligence of the plaintiff which occurs before or concurrently with any damage or invasion of his rights.
3. Contributory Negligence — Inapplicable — Plaintiff's Damage — Driving Truck — Tires Defectively Recapped. Where the damage suffered by plaintiff resulted from his driving a truck whose tires had been recapped by defendant with materials which were defective, the concept of contributory negligence is not applicable.
4. DAMAGES — Avoidable Consequences — Applicable — After Legal Wrong — Bars Recovery — Avoidable Damage. The doctrine of avoidable consequences is a damages principle which applies after a legal wrong has been committed, but while damages may still be averted, and bars recovery only for such damages.
5. One Injured — Tort — Breach of Contract — Duty — Reasonable Care — Minimize Damage. One who is injured by another either as the result of tort or of breach of contract is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage.
6. Defectively Recapped Tires — On Way to New York — Affirmative Duty — Remedy Problem — Idle in New York — No Recovery — Damage on Return. Although plaintiff discovered defectively recapped tires on way to New York to meet a contractual deadline and although he did all that was reasonably expected of him on his way there, he was under an obligation to take affirmative action to remedy the problem while idle in New York for two and one-half days and may not recover for the damage to his truck which occurred during his return to Denver.
Error to the District Court of the City and County of Denver, Honorable Gerald E. McAuliffe, Judge.
Bernard D. Steinberg, for plaintiff in error.
Douglas G. McKinnon, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error was defendant below and will be referred to herein as Gross; defendant in error was plaintiff below and will be referred to herein as Knuth.
Knuth and Gross entered into a contract whereby Gross was to recap the tires on Knuth's truck for $347.84. Shortly after Gross delivered the recaps, Knuth embarked on a trip to New York hauling a load of fresh meat. He experienced difficulties with the tires about 500 miles east of Denver when the new recap rubber began separating or peeling from the tire carcasses. This condition persisted all the way to New York. Knuth knew that the peeling of the recap would throw the wheels out of balance and eventually result in damage or possible destruction of the truck's differentials. The evidence presented at trial as to Knuth's attempts while driving to New York to contact Gross was highly controverted. Knuth claimed that he could not replace the tires because he did not have enough cash nor the credit to do so; furthermore, he was in a hurry to get to his destination as he was operating under a contract which provided that he had to deliver the meat cargo in New York within 56 hours or suffer a $500 penalty. Knuth arrived in New York within the time limit. He then had a layover of two and one-half days while waiting to find a load to haul back to Denver. He did locate a load in Gloucester, Massachusetts, and drove up there to pick it up for his return trip to Denver. During his stay in New York, Knuth made no attempt to remedy the problem with the tires or to call Gross. On his return trip, approximately 100 miles east of Denver, the differentials froze as a result of the defect in the tires.
Knuth later brought this action alleging negligence and carelessness on the part of Gross in the recapping of the tires. Trial was to the court. The evidence showed that Gross did not perform the process of recapping the tires negligently, rather that the peeling of the tires was caused by defective materials used in the recapping process which were sent to Gross by his supplier. The trial court found that "defendants were negligent in supplying defective recapped tires to the plaintiff and in failing to rectify this prior to plaintiff's departure for New York." The court awarded Knuth damages for the cost of repair of the differentials, loss of use of the truck while being repaired, and the price paid by Knuth for the recapping.
Gross brought writ of error from this judgment and assigns a total of nine errors, the first of which is that the evidence was insufficient to support any judgment in favor of Knuth. Upon reading the record, we find that there was sufficient evidence to support the trial court's finding that Gross knew of the defective material used in the recapping prior to Knuth's departure for New York. We cannot disturb this finding or the conclusion of Gross' negligence in not informing Knuth.
"The credibility of the witnesses, the sufficiency, probative effect and weight of the evidence, the inferences and conclusions to be drawn therefrom, of necessity are all within the province of the trial court, and will not be disturbed on review, unless manifestly erroneous or actuated by passion or prejudice." Byrne v. Stone Birkle, 156 Colo. 445, 399 P.2d 940.
[2,3] Gross claims error in the trial court's finding that Knuth was free from contributory negligence and that he did all that was reasonably expected of him on his way to New York. We agree with the trial court's finding as to lack of contributory negligence. Contributory negligence is a tort principle. Specifically, it is the negligence of the plaintiff which occurs before or concurrently with any damage, or any invasion of his rights. Contributory negligence bars all recovery. Colorado Central Railroad Co. v. Holmes, 5 Colo. 197. The concept of contributory negligence is not applicable to the facts in this case.
[4,5] Gross also assigns as error the court's oversight of the doctrine of avoidable consequences. The doctrine of avoidable consequences is a damages principle and differs from the doctrine of contributory negligence. It applies after a legal wrong has occurred, but while damages may still be averted, and bars recovery only for such damages. Dippold v. Cathlamet Timber Co., 111 Ore. 199, 225 P. 202. The law in Colorado as to the doctrine of avoidable consequence and duty to mitigate damages is set forth in Brenaman v. Willis, 136 Colo. 53, 314 P.2d 691.
"One who is injured by the wrongful or negligent acts of another, whether as the result of a tort or of a breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage."
Although the trial court found Knuth free from contributory negligence and that he did all that was reasonably expected of him on his was to New York, the court stopped there and made no finding or conclusion as to his conduct while in New York or on the return trip to Denver. It did not consider what he reasonably could have done while no longer under the time pressure to meet his contractual obligation. Knuth had a duty while idle for two and one-half days to take some affirmative action to remedy the problem. He did not replace the tires, and by his own testimony admitted he made no effort to call Denver or otherwise try to establish credit while in New York. Thus, we hold that Gross is not liable for the damages to the differentials or for Knuth's loss of use of the truck while being repaired. These damages occurred as a result of Knuth's unreasonable failure to take affirmative action to avoid the consequences of Gross' initial act of negligence.
Upon returning to Denver, Knuth purchased new tires from Sears Roebuck. The evidence established that he traded in the defective tires and was given a credit for them. A credit memo issued by Sears was referred to during the course of the trial, but was never entered into evidence. Thus, we have no way of knowing whether Knuth was compensated merely for the tire carcasses, which were his property at all times, or if he was given a credit, the value of which equalled the value of the tires when properly recapped. The record further shows that Gross picked up Knuth's defective tires at the Sears tire store, performed the recap adjustment and delivered them back to the Sears tire store. There was contradictory evidence as to whether Knuth had ordered or authorized that this be done, but the record is devoid of any evidence indicating that Knuth was the ultimate beneficiary of Gross' recap adjustment. The burden of proof as to this issue was on Gross and he failed to meet it. We accordingly affirm the judgment as to $347.84 (cost of the recapping) and reverse the judgment as to all other damages.
Judgment affirmed in part and reversed in part.
CHIEF JUDGE SILVERSTEIN and JUDGE DUFFORD concur.