Bennett v. Kresse

Mr. Justice Groves delivered the opinion of the Court. 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 [202] 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.