(483 P.2d 384)
No. 23298.Supreme Court of Colorado.
Decided April 5, 1971.
Action for assault. From a ruling of the trial court that plaintiff was precluded from testifying under the provisions of C.R.S. 1963, 154-1-2, the “dead man’s statute,” plaintiff brought error.
Affirmed.
1. WITNESSES — Assault — Previous Opinion — Plaintiff — Consent — Reduction — Damages — Reversal — Delay — Death of Defendant — Dead Man’s Statute — Testify — Ruling — Preclusion. In action for assault, where Supreme Court ruled in previous opinion that unless plaintiff consented to
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reduction of award for exemplary damages within ten days after issuance of remittitur, judgment would be reversed as to issue of damages and new trial ordered on that issue alone and nothing transpired for approximately three and one-half years or until shortly after defendant’s death when plaintiff applied to set damages issue for trial, held, under the circumstances trial court did not err in ruling that plaintiff was precluded from testifying under the provisions of C.R.S. 1963, 154-1-2, the “dead man’s statute.”
Error to the District Court of the City and County of Denver, Honorable William R. Shaw, Acting Judge.
Theodore J. Soja, for plaintiff in error.
John T. Dugan, for defendant in error.
In Department.
MR. JUSTICE GROVES delivered the opinion of the Court.
[1] This writ of error seeks reversal of the trial court’s ruling that the plaintiff in error, Mrs. Bennett, was precluded from testifying under the provisions of C.R.S. 1963, 154-1-2, the “dead man’s statute.” The subject matter of this suit was reviewed by this court in Kresse v. Bennett, 151 Colo. 549, 379 P.2d 807 (1963). In that opinion this court ruled that, unless Mrs. Bennett consented to a reduction of the award for exemplary damages within ten days after the issuance of the remittitur from the court, the judgment would be reversed as to the issue of damages, and a new trial ordered on that issue alone. Nothing transpired for approximately three and one-half years after this ruling, or until shortly after Mrs. Kresse’s death, when application was made by Mrs. Bennett to set the issue for trial on the issue of damages. At this trial, Mrs. Bennett sought to testify as to her transactions with the decedent. Upon objection by the defendant administrator, the trial court precluded such testimony on the authority of the above mentioned statute. There was
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tendered a written offer of proof, detailing the testimony Mrs. Bennett would give if permitted. Mrs. Bennett then rested her case without offering any further evidence. Judgment was rendered for the defendant. After studying the record and considering the arguments presented, we perceive no error in the ruling of the trial court and, therefore affirm.
MR. JUSTICE KELLEY, MR. JUSTICE LEE and MR. JUSTICE ERICKSON concur.