Opinion
Richard A. Francis, Snead & Wright, Lawrence A. Wright, Jr., Denver, for plaintiffs in error.
Robert W. Baker, Denver, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Appellants brought this action against Gordon O'Dell, Richard O'Dell, and the City and County of Denver to recover damages allegedly resulting from an assault and battery. Trial was to the court, which found for the defendants. Appealing from such judgment, appellants seek reversal of only that portion of the judgment in favor of the appellee, Gordon O'Dell.
Appellants first contend that the trial court erred in excluding evidence of a guilty plea on the part of the appellee to a criminal charge of assault which arose out of the incident which is the subject matter of this litigation.
The record discloses that the trial court did admit evidence of the guilty plea. Appellants contend, however, that during closing argument the trial court made statements which left appellants' counsel with the impression that the court had decided not to consider the evidence relating to the guilty plea. The closing arguments and the remarks of the trial court were not made part of the record on appeal. Therefore, we are in no position to consider the validity of appellants' contention here. Hinshaw v. Dyer, 166 Colo. 394, 443 P.2d 992.
Appellants secondly contend that the trial court erred in concluding that one who starts a fight cannot recover for injuries sustained therein.
The record discloses that the trial court specifically found that the appellee had not used excessive force. Therefore, no prejudice resulted to the appellants from the trial court's statement that 'whoever started the fight is responsible.' Minowitz v. Failing, 109 Colo. 182, 123 P.2d 417.
Appellants lastly contend that the trial court's findings that the appellant Richard Francis struck the first blow and that the appellee had not used excessive force are contrary to the clear preponderance of the evidence.
The record discloses that there was a direct conflict in the testimony as to who started the fight and the amount of force used by the appellee. The trial judge, as the finder of fact, resolved this conflict in the testimony against the appellants. When a case is tried to the court and there is adequate evidence to support its findings, they will not be disturbed upon appellant review. Lindsay v. Marcus, 137 Colo. 336, 325 P.2d 267.
Judgment is affirmed.
COYTE and ENOCH, JJ., concur.