Opinion
Jan. 5, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 392
Williams & Strahle, Ronald H. Strahle, L. Duane Woodard, Fort Collins, for plaintiffs in error.
Harden, Olson & Napheys, George H. Hass, Fort Collins, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
Plaintiffs in error, Louis Moore and Elva Moore, were plaintiffs in the trial court. They brought this action against defendant to recover for damages to their automobile and for personal injuries allegedly sustained when defendant's automobile collided with the rear end of their automobile.
The case was tried to the court and its findings on the issues of liability and damages were in favor of the plaintiffs. Judgment was entered in favor of Louis Moore for property damages in the amount of $62; special damages (medical expenses) in the amount of $25; and general damages in the amount of $500. Judgment was entered in favor of Elva Moore for special damages (medical expenses) in the amount of $45 and general damages in the amount of $815.
The plaintiffs prosecute this writ of error seeking reversal of the judgments in their favor. They assert as error (1) that the trial court erred in limiting the scope of the cross-examination of one of defendant's witnesses and (2) that the trial court erred in admitting into evidence the deposition of plaintiff Elva Moore. The plaintiffs were the prevailing parties in the trial court. The right to appellate review of a judgment exists only in a party aggrieved or prejudiced thereby since appeals are not allowed for the purpose of settling abstract questions but only to correct errors injuriously affecting the appellant. Thus, R.C.P.Colo. 118(f) provides that the Supreme Court shall disregard any error or defect not affecting the substantial rights of the parties.
As prevailing parties, plaintiffs can complain only of such errors as have prejudicially affected the court's assessment of their damages. Neither of the alleged errors relate to the amount of damages awarded to plaintiff Louis Moore, so he has no basis to complain of his judgment. The alleged errors can be considered only to determine whether such errors claimed had any prejudicial effect on the amount of damages awarded to Elva Moore.
The first claim of error is that the trial court erred in limiting the scope of the cross-examination of a doctor called as a witness by defendant.
In presenting her evidence Elva Moore did not call her family physician who treated her both before and after the collision. Instead she called a physician who examined her after the collision. He testified that she was suffering from back injuries. Defendant then called plaintiffs' family physician as a witness. He testified on direct-examination that he treated Elva Moore for back problems before the collision. On cross-examination plaintiff was allowed to fully cross-examine the doctor concerning his treatment of the plaintiff before the collision. Plaintiff then attempted to cross-examine this doctor concerning his treatment of the plaintiff after the collision. Defendant objected on the ground that the attempted inquiry would be beyond the scope of the direct-examination and the court sustained the objection on that basis. After the defendant rested, plaintiffs, as part of their case on rebuttal, moved the court to recall the doctor for cross-examination concerning his treatment of Elva Moore after the collision. The court denied the motion stating:
'Now, the court fails to see how the Plaintiffs are injured in this matter. The Plaintiffs can call the doctor as their own witness if they so desire.' The rulings of the court restricting the cross-examination of the doctor to his treatment of Elva Moore prior to the collision were technically incorrect. The rule that the scope of cross-examination is limited to the scope of the direct-examination means that cross-examination is limited to the subject matter of the direct-examination. Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 10 Cir., 129 F. 668. It does not mean that cross-examination shall consist of merely a categorical review of identical matters testified to by the witnesses, but rather that new subjects will not be introduced. 98 C.J.S. Witnesses s 393. The subject matter introduced on direct-examination of the doctor was the physical condition of Elva Moore as it related to the collision. See Carsell v. Edwards, 165 Colo. 335, 439 P.2d 33. The attempted inquiry related directly to this subject matter and should have been allowed.
We are, however, of the opinion that the limitation of the cross-examination did not, in the circumstances disclosed by this record, constitute prejudicial error. Since Elva Moore chose not to call the doctor to testify on direct-examination as to her physical condition as it existed after the accident, her cross-examination on this subject could only have been aimed at weakening his testimony that he had treated her prior to the accident. Since this was a fact that she herself admitted when testifying, the doctor's testimony on this subject was merely cumulative. Error in limitation of cross-examination of a witness may be disregarded where it appears from the record that the limitation did not affect the substantial rights of a party. See Dowell, Inc. v. Jowers, 5 Cir., 182 F.2d 576.
Plaintiff's other argument concerns the admission into evidence of plaintiff Elva Moore's deposition. The deposition was offered by defendant and the plaintiff's only objection was that it should not be admitted 'in toto' because it contained material inadmissible under the rules of evidence. In overruling this objection the trial judge said:
'If that is the basis of your objection, Mr. Strahle, the Court will overrule your objection, since this is a trial to the Court, and the Court feels it can disregard any hearsay and immaterial and irrelevant matters and irrelevant questions.'
Where trial is to a court, it may be presumed on appeal that all incompetent evidence was disregarded by the trial judge. See Vanadium Corporation of America v. Wesco Stores Co., 135 Colo. 77, 308 P.2d 1011. Here the trial judge specifically stated that he would disregard any inadmissible evidence in the deposition. It is not contended that the court did in fact consider the inadmissible evidence, if any, contained in the deposition. Under these circumstances, plaintiffs have no basis to claim error in the admission of the entire deposition.
Judgment affirmed.
DUFFORD and PIERCE, JJ., concur.