2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 90 - Witnesses
Part 1 - General Provisions
§ 13-90-116. Examination of Party to Record by Adverse Party

A party to the record of any civil action or proceeding, or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent, or managing agents of any corporation which is a party to the record in such action or proceeding may be examined upon the trial thereof, or upon deposition, or both, as if under cross-examination at the instance of the adverse party and for that purpose may be compelled in the same manner and subject to the same rules for examination as any other witness to testify, but the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony.

History. Source: L. 1899: P. 178, § 1. R.S. 08: § 7284. C.L. § 6570. L. 33: P. 899, § 1. CSA: C. 177, § 16. CRS 53: § 153-1-16. C.R.S. 1963: § 154-1-16. History. Source: L. 1899: P. 178, § 1. R.S. 08: § 7284. C.L. § 6570. L. 33: P. 899, § 1. CSA: C. 177, § 16. CRS 53: § 153-1-16. C.R.S. 1963: § 154-1-16.

Analysis

• I. GENERAL CONSIDERATION.
• II. THE EXAMINATION.
  • A. In General.
  • B. Scope.

Law reviews. For article, “Cross Examination Under the Statute”, see 9 Dicta 198 (1932). For article, “Depositions of Parties on Oral Interrogatories, Within the State of Colorado”, see 10 Dicta 256 (1933).

This section is remedial. It grants a right not given under the common law, but does not abridge any right granted thereunder. Purse v. Purcell, 43 Colo. 50 , 95 P. 291 (1908); Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933).

It gives adverse party a statutory right. The right given by this section is a statutory right of far greater value to the adversary than the right to examine a party as his own witness. Reiter v. Pollard, 75 Colo. 203 , 225 P. 222 (1924).

It does not take from either party any legal right they had before to use the admissions of parties in interest made in opposition to principles for which they were then contending. Grand Lodge A. O. U. W. v. Taylor, 24 Colo. App. 106, 131 P. 783 (1913).

It does not limit the right of a party to cross-examine his adversary who offers himself as a witness in his own behalf. Purse v. Purcell, 43 Colo. 50 , 95 P. 291 (1908).

It does not provide for such cross-examination other than upon a trial, and must be so limited. Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933).

The word “trial” as used in this section is to be construed as it is commonly understood as applied to a civil action or proceeding, for the reason that the statute confines it to this. Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933).

“Trial” is defined as the examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue. Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933); Jones v. Cutting, 92 Colo. 123 , 18 P.2d 454 (1933).

This section does not contain any reference whatsoever to the taking of a deposition before a notary. Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933); Jones v. Cutting, 92 Colo. 123 , 18 P.2d 454 (1933).

It therefore does not authorize a cross examination before a notary public. Taylor v. Briggs Land Inv. Co., 92 Colo. 119 , 18 P.2d 452 (1933).

It is inapplicable if witness proves not to be adverse. If a party called as an adverse witness appears to the trial court not to be adverse, he should not be held to come within this section and the matter should be left largely to the discretion of the court. W. Inv. & Land Co. v. First Nat'l Bank, 64 Colo. 37 , 172 P. 6 (1918).

“Managing agent” is not limited to one general manager. Certainly the president of a corporation which was the general underwriting agent for an insurance company, and as such had charge of that branch of the company's business in four states, would be a “managing agent” within the meaning of this section. Otherwise, the term must be limited to one general manager and we think it clear that the general assembly never intended any such limitation. London Guarantee & Accident Co. v. Officer, 78 Colo. 441 , 242 P. 989 (1925).

Error in calling local agent is cured by the subsequent calling of such agent by other party. Where the local agent of a defendant corporation was called as a witness under this section, authorizing the calling of a managing agent of a party corporation and examining him as on cross-examination, such error, if any, in calling such agent, is cured where he is afterwards called by the corporation and the same facts brought out on cross-examination. Diamond Rubber Co. v. Harryman, 41 Colo. 415 , 92 P. 922 (1907).

Where witness is not in any of the listed categories, this section does not apply. Where a witness is neither a director, officer, superintendent, or managing agent of Safeway Stores, Inc., as those words are used in C.R.C.P. 43 or this section, nor is there any showing that the witness is an “unwilling or hostile witness” to the end that under C.R.C.P. 43 he could be interrogated by leading questions, there is no error in refusing to permit plaintiff s to cross-examine the witness as a part of their case in chief. Dale v. Safeway Stores, Inc., 152 Colo. 581 , 383 P.2d 795 (1963).

Under this section the competency established at one trial obtains at subsequent trials of the same cause. Finch v. McCrimmon, 100 Colo. 315 , 67 P.2d 623 (1937).

If a disqualified witness is called, the disqualification is waived. One who calls a disqualified witness, even for cross-examination, under this section waives the disqualification and makes him a witness for all purposes. Allen v. Shires, 47 Colo. 433 , 107 P. 1070 (1910).

The purpose for which he is called makes no difference in the application of the principle. Allen v. Shires, 47 Colo. 433 , 107 P. 1070 (1910).

If witness has already been examined by adverse party it is not error to refuse to permit him called again. The refusal of the trial court to permit plaintiff to call as a witness the engineer of defendant company, as the company's representative for the purpose of cross-examining him, even if proper to do so under this section, was not prejudicial error where he was actually called as a witness for both parties and subjected to a most rigid and prolonged examination, and cross-examination by counsel for plaintiff. Hottel v. Poudre Valley Reservoir Co., 41 Colo. 370 , 92 P. 918 (1907).

The party called for such examination shall not be concluded thereby, but may rebut it by counter testimony. Cordingly v. Kennedy, 239 F. 645 (8th Cir. 1917).

There is no error in the refusal of the trial court to bring in new parties so that they may be cross-examined under this section, when it appears that such parties have no interest in the issues between the major parties. Tolland Co. v. First State Bank, 95 Colo. 321 , 35 P.2d 867 (1934).

A defendant who has suffered a default, may, under this section, be called and examined by plaintiff. W. Inv. & Land Co. v. First Nat'l Bank, 64 Colo. 37 , 172 P. 6 (1918).

Witness' own counsel cannot examine beyond scope of examination by adversary. While this section does not permit defendant's examination by his own counsel to proceed beyond the scope of his examination as conducted by his adversary, nor permit leading questions to be propounded to him by his counsel, it does not by its terms, nor by a proper construction, deny his right to at once give further testimony within the limit indicated. Merritt v. Hummer, 21 Colo. App. 568, 122 P. 816 (1912).

It is error to refuse examination within proper limits. Where plaintiff's counsel called the defendant as a witness and examined him under this section and at the conclusion of defendant's examination by plaintiff's counsel, his own counsel asked and was denied the privilege of examining him at that time, the trial court holding that this section gave the defendant no right to testify further until plaintiff had closed his case, and he, the defendant, had been regularly called to the stand in his own defense, this was error. Buckhorn Plaster Co. v. Consolidated Plaster Co., 47 Colo. 516 , 108 P. 27 (1910); Merritt v. Hummer, 21 Colo. App. 568, 122 P. 816 (1912).

A party is bound by the adverse testimony of his own witness, and favorable evidence elicited by leading questions or distinctly cross-examining methods should be stricken on motion. In the case under consideration the evidence was fully developed by the adverse party's examination of the same witness, hence should stand. London Guarantee & Accident Co. v. Officer, 78 Colo. 441 , 242 P. 989 (1925).

Plaintiff bound by testimony of witnesses not called for cross-examination. In an action against a corporation, some of the witnesses for plaintiff -- officials and employees of defendant -- not being called for cross-examination under this section, plaintiff was bound by their testimony. Rio Grande Fuel Co. v. Colo. Cent. Power Co., 99 Colo. 395 , 63 P.2d 470 (1936).

A witness called under this section is competent “for all purposes” within meaning of § 13-90-102 . A witness called by an administrator under the provisions of this section which permits the interrogation of an adverse party as on cross-examination, removes the bar of § 13-90-102 and makes the witness a competent witness “for all purposes”. Warren v. Adams, 19 Colo. 515 , 36 P. 604 (1894); Zackheim v. Zackheim, 75 Colo. 161 , 225 P. 268 (1924); Finch v. McCrimmon, 100 Colo. 315 , 67 P.2d 623 (1937).

A party to the record may be examined by his adversary as if under cross-examination, and the fact that a defendant called the plaintiff as his own witness did not cure the error committed in denying him the right to call him for cross-examination. Reiter v. Pollard, 75 Colo. 203 , 225 P. 222 (1924).

An intervener need not be given right to examine as to wholly irrelevant matter. There was no error in refusing an intervener an opportunity to cross-examine the president of plaintiff corporation under this section, where such cross-examination would have been directed to matters wholly irrelevant to the issues. Howry v. Sigel-Campion Livestock Comm'n Co., 80 Colo. 143 , 249 P. 658 (1926).

Refusal to permit defendant to cross-examine complainant about his homosexual relationship with witness was not reversible error, inasmuch as testimony elicited during such cross examination would only have discredited and impeached complainant by impugning his moral character. People v. Couch, 179 Colo. 324 , 500 P.2d 967 (1972).