Summary
refusing to substitute the reviewing court's judgment for the trial court's where the trial court's findings were supported by some parts of the evidence and conflicted by others
Summary of this case from Farm Credit of S. Colo. v. MasonOpinion
Rehearing Denied Feb. 23, 1972.
Page 251
Carol Van Pelt, Lakewood, for plaintiff-appellee.
Hubert A. McGreevy, Arvada, for defendant-appellant.
SMITH, Judge.
This is an assault and battery case which was tried to the court without a jury. The court entered judgment for damages, exemplary damages and a body judgment against defendant. Defendant has appealed arguing seven grounds for reversal, summarized as follows:
(1) That the evidence did not support the court's findings;
(2) That the trial court abused its discretion in refusing to allow summation after trial or oral argument upon the motion for new trial;
(3) That the court abused its discretion in refusing to grant a new trial on the basis of newly discovered evidence; and
(4) That the court erred in awarding exemplary damages and body execution.
This court has carefully examined the record and transcript and finds each of the grounds alleged for reversal to be without merit. The judgment of the trial court is therefore affirmed.
Although the evidence was in conflict, there was sufficient evidence before the trial judge as trier of fact to support his findings. This court perceives no error in either the findings or conclusions and will not substitute its judgment for that of the trial judge. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
The matter of whether to permit summation at the conclusion of a trial to the court rests in the sound discretion of the trial judge and his decision will not be disturbed in the absence of a clear and manifest showing of an abuse of that discretion. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450. The instant record is devoid of such a showing. The question of permitting oral argument on a motion for new trial is also discretionary, C.R.C.P. 59(f). No abuse of discretion appears in the record.
Pursuant to C.R.C.P. 59(a) (4), defendant moved for a new trial based upon the anticipated testimony of two newly discovered witnesses and supported this motion with affidavits summarizing what their testimony would show. These affidavits were examined by the court which concluded, without permitting argument, that no different result would obtain upon a new trial even if these witnesses testified. The fact of newly discovered evidence in and of itself is not a basis for a new trial since new evidence must be of such a nature as would be likely to change the result upon retrial. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808. Here, the trial court determined that the new evidence would not change the result of the trial. Our examination of these affidavits leads us to the same conclusion.
We find in the record evidence to support the court's findings of malice, as well as a reckless and willful disregard of the rights or safety of others, sufficient to justify exemplary damages and body execution. 1965 Perm.Supp., C.R.S.1963, 77--9--3; C.R.S.1963, 41--2--2. The trial judge may not have strictly adhered to the admonition of the Honorable Edward J. Devitt, Chief Judge of the U.S. District Court for the State of Minnesota when he said:
'We must constantly keep in mind the marked displeasure we felt as practicing lawyers for the judge who would not hear us out. It may well be a waste of time for us to listen to extensive arguments on a point of law upon which we already made up our mind. But, we owe it to the lawyer to let him make his point. It may well be that he can change our mind--at least he is entitled to try.' Devitt, Ten Commandments for the New Judge, Appendix 1, The State Trial Judge's Book, 265.
However, the record as a whole discloses no reversible error or clear abuse of discretion.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.