Opinion
Feb. 2, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
William J. Madden, Denver, for plaintiff in error.
Wormwood, Wolvington, Renner & Dosh, Jack Kent Anderson, Denver, for defendant in error.
DUFFORD, 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.
The parties will be referred to as they appeared in the lower court, where plaintiff in error was the plaintiff and defendant in error, the defendant.
The parties admitted in their pleadings that they had entered into a written agreement, pursuant to which the defendant undertook to transport the plaintiff's household goods from Ardmore, Oklahoma, to Denver, Colorado. The amount of damages, if any, was stipulated. The sole issue at trial was whether the items alleged to be missing were in fact delivered by the plaintiff to the defendant in Ardmore and not redelivered by the defendant to the plaintiff in Denver. Trial was to a jury, which found for the defendant, and plaintiff has appealed.
Both of the assignments of error raised by plaintiff deal with the admissibility of evidence.
Plaintiff's first contention is that the trial court erred in not admitting into evidence plaintiff's Exhibit 'C', which was an executed copy of a letter from one of the defendant's local affiliated companies. Plaintiff's counsel, when offering Exhibit 'C' into evidence, stated as follows:
'The plaintiff offers Exhibit C into evidence for the purpose, Your Honor, of showing that Mrs. Weil did report this loss at the time and Not for the purpose of any admission on the part of Lenz Moving and Storage or Allied.'
After the above statement by plaintiff's counsel, counsel for the defendant objected to the admission of Exhibit 'C' and pointed out to the court that it had been agreed that plaintiff had in effect reported her loss and that this question was no longer a contested issue in the case. The matter was then dropped without a ruling by the trial court, and plaintiff's counsel continued with his examination of the witness. Upon completion of the trial, plaintiff's counsel argued that Exhibit 'C' was admissible as an exception to the hearsay rule, in that it contained an admission by the defendant's agent which was against the interest of the defendant from the standpoint that it contained a reference to the delivery of certain of the goods which plaintiff contends were lost. It is the same argument which plaintiff asserts here.
Considering the above-quoted statement of plaintiff's counsel, his failure to request any ruling from the trial court, and the time at which his ultimate contention for the admission of this Exhibit 'C' was first asserted, we rule that the plaintiff effectively waived any right to assert the argument which is advanced here. Lenich v. Lenich, 138 Colo. 251, 331 P.2d 498.
Plaintiff also contends that the trial court erred in restricting her testimony concerning a telephone conversation, which she had with one of defendant's local agents. The record discloses that during an in-chambers conference out of the presence of the jury, plaintiff's counsel expressly agreed to the restrictions subsequently imposed by the trial court on plaintiff's testimony relating to the telephone conversation in question. In addition, the record does not show any objection made to such restrictions by the plaintiff's counsel. A litigant who consents to or acquiesces in a ruling of a trial court is estopped to claim error based upon the matters to which he has agreed. Lenich v. Lenich, Supra.
Judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.