Opinion
May 19, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
George J. Duckworth, Harold H. Widney, Denver, Myrick, Criswell & Branney, Joseph J. Branney, Englewood, for plaintiffs in error.
Burnett, Watson & Horan, Edward R. Gleason, Denver, for defendant in error.
Page 173
ENOCH, Judge.
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.
This is a wrongful death case. The plaintiffs are the heirs and the executors of the estate of the deceased. The deceased, Ovid M. Kellogg, will be referred to as the deceased or by name. The defendant, a male nurse, was driving the car at the time of the accident. Ovid M. Kellogg, a passenger in defendant's car was injured in the accident and later died.
The plaintiffs alleged negligence on the part of the defendant as the cause of the accident and the subsequent death of Kellogg. One of the affirmative defenses raised by the defendant was the guest statute. Trial was to a jury which returned a verdict for the defendant.
Two main issues are raised by this appeal. First, did the trial court err as a matter of law in refusing to strike the defense of the guest statute and, secondly, did the trial court err in sustaining objections to plaintiffs' cross-examination of the defendant regarding the employment status and the scope of said status with respect to the deceased?
The deceased was an elderly man recovering from a second severe heart attack. In July of 1966, shortly after being moved from the hospital to his home, the defendant, a registered male nurse, was employed to live in the home and give 24 hour care under the supervision of the doctor. The defendant was paid $35.00 a day plus board and room. The doctor made regular house calls and telephone calls to check on the progress of the patient and to give defendant any special instructions needed. The deceased was recovering slowly and with defendant's assistance was eventually permitted to get out of bed and move about the house for short periods.
On August 7, 1966, the defendant took deceased to see the deceased's daughter's house. During the automobile ride the defendant was involved in an intersection accident. Kellogg was injured, taken to the hospital and subsequently died on August 21, 1966 of a circulatory failure. There is conflicting evidence in the record as to whether the defendant was acting within the scope of his employment when he took the deceased for this ride. Whether the defendant was or was not acting within the scope of his employment is, of course, the crux of the problem of whether the defense of the guest statute was available to the defendant.
I
Did the trial court err as a matter of law in failing to strike the defendant's defense of the guest statute?
We think not. Since there was a conflict in the evidence, as above stated, as to whether the defendant was acting within the scope of his employment in taking the deceased for the automobile ride, the trial court properly submitted the question to the jury, along with the other issues involved in this case. Only where there is no dispute in the facts, should the trial court rule as a matter of law that the guest statute is not to be considered by the jury. Dobbs v. Sugioka, 117 Colo. 218, 185 P.2d 784.
II
Did the trial court err in sustaining objections to plaintiffs' cross-examination of the defendant regarding the employment status and the scope of said status with respect to the deceased, Ovid M. Kellogg?
We have examined the record and find no reversible error on this ground. Authorities cited by both plaintiffs and defendant are correct when properly applied. An agent or employee may testify as to what he did in the course of his relationship, but his declarations, either in or out of the court room, are not admissible to prove either the fact of agency or the extent of authority. Robert E. Lee Silver Mining Co. v. Englebach, et al., 18 Colo. 106, 31 P. 771, 772. The defendant here was allowed to testify to a considerable extent as to his duties and what he did in caring for the deceased. A review of the material questions propounded by plaintiffs to which the court sustained objections were questions which called for legal conclusions. The court's rulings were correct.
Judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.