Tompkins v. DeLeon

595 P.2d 242, 197 Colo. 569, 1979 Colo. LEXIS 671

• Court: Supreme Court of Colorado
• Decided: May 29, 1979
• Docket: C-1487
• Status: Published

Opinions

MR. JUSTICE GROVES

delivered the opinion of the Court.

We granted certiorari to consider the court of appeals’ decision, 40 Colo. App. 241, 576 P.2d 563 (1977), interpreting the Dead Man’s Statute. We reverse.

The respondents, Marie and Linda DeLeon, suffered bodily injuries on August 22, 1972 when an automobile owned and operated by Jose Ruperto del Valle struck their car from the rear. On September 19, 1973 del Valle died of a cause unrelated to the accident. Subsequently, the respondents sued the administrator of del Valle’s estate. At the ensuing trial, respondents sought to testify concerning their pain, suffering and medical care during the time preceding del Valle’s death. The trial court ruled that such testimony was barred by the Dead Man’s Statute, section 13-90-102, C.R.S. 1973. Respondents were permitted to testify about events subsequent to del Valle’s death, and the jury awarded damages based on that testimony.

On appeal, the respondents claimed that the damages were inadequate and would have been greater but for the district court’s erroneous ■application of the Dead Man’s Statute to preclude testimony about pain, suffering and medical care which occurred prior to del Valle’s death. The court of appeals reversed, concluding that the statute was not intended to prevent the admission of testimony which the decedent could not have contradicted of his own knowledge. The cause was remanded for a new trial.

The only issue on appeal is whether the respondents testimony about pain, suffering and medical care occurring prior to del Valle’s death should have been admitted. The statute reads as follows:

“(1) No party to any civil action, suit, or proceeding, or person directly interested in the event thereof shall be allowed to testify therein of his own motion or in his own behalf by virtue of section 13-90-101, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic, or distracted person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending, and except in the following cases:

“(a) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person.” (Emphasis added) Section 13-90-102, C.R.S. 1973.

The statute then lists six more exceptions, none of which apply to this case.

The above quoted provisions were in effect long prior to the 1973 codification of our statutes. These provisions were clear arid unambiguous. Young v. Burke, 139 Colo. 305, 338 P.2d 284 (1959); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942). They concerned the competency of witnesses. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).

In the codification of the Colorado Revised Statutes 1973 the General Assembly reenacted the statute without change. Subsequently, it amended the statute as to subjects not relevant here and did not change the above quoted provisions. Colo. Sess. Laws 1975, ch. 251, 13-90-102 at 925; Colo. Sess. Laws 1977, ch. 200, 13-90-102 at 822. When the legislature reenacts or amends a statute and does not change a section previously interpreted by settled judicial construction, it is presumed that it agrees with judicial construction of the statute. Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497 (1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978). Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974); Nye v. District Court, 168 Colo. 272, 450 P.2d 669 (1969). See Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966) in which the trial court ruled that the claimant was not permitted to testify to any events occurring prior to the death of a man who died eight months after the same automobile accident in which the claimant had been injured; and this court affirmed.

The statute clearly prevents the respondents from testifying regarding any events occurring prior to del Valle’s death. The court of appeals’ decision creates a judicial exception additional to those set forth in the statute and contradicts the purpose of subsection (a) thereof. As the statute is clear and unambiguous and as the competency of witnesses falls within the area of legislative prerogative, there is no room for judicial modification here.

The majority of the court of appeals relied in part upon the belief that admission of the contested testimony would not subvert the purpose of the statute. It may be correct that in this instance admission of the testimony might not have materially obstructed the purposes of the statute. Nonetheless, we agree with the dissenting opinion of the court of appeals that the courts have an obligation to apply the clear language of the statute.

The opinion of the court of appeals is reversed and the cause returned to it for remand to the district court showing our affirmance of the district court.

MR. JUSTICE ROVIRA specially concurs.

MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.