Kinner v. Whipple

Sewell, J.: One of the questions presented by this appeal is whether the plaintiff' is precluded by the record from now raising the question that the court erred in not submitting any question of fact to the jury- The rule is that where neither party requests to have any question of fact submitted to'the jury, but each asks that a verdict be directed in his favor, they waive their right to go to the jury and consent that the court shall decide every question of fact in the case. As was said by Judge Andrews in Thompson v. Simpson (128 N. Y. 283), “ The effect of a request by each party for a direction of a verdict in his favor, clothed the court with the functions [738] of the jury, and it is well settled that in such case where the party whose request is denied, does not thereupon request to go to the jury on the facts, a verdict directed for the other party stands as would the finding of a jury.” Upon appeal the disputed facts are deemed to have been determined in favor of the party for whom the verdict is directed. (Dillon v. Cockcroft, 90 N. Y. 649 ; Kirtz v. Peck, 113 id. 222; Smith v. Weston, 159 id. 194;' Westervelt v. Phelps, 171 id. 212.) The plaintiff contends, however, that his suggestion that the question of the abandonment of the contract was a disputed fact was equivalent to a request to go to the jury upon that question. I think not. There was nothing in the suggestion or in what was said on that occasion to justify'tlie conclusion that he did not desire the court to decide every question of fact, and that he did so intend is apparent from the fact that he acquiesced in the proposed action of the' court. If the counsel for the plaintiff supposed that there was a disputed question of fact, material to- the issue between the parties, and desired that it should be-submitted to the jury, he should have withdrawn his motion for a direction of a verdict and requested the submission of that fact to the jury. The request should have been specific so that- the court could have passed directly upon it. (Frantz v. Ireland, 66 Barb. 389; Winchell v. Hicks, 18 N. Y. 565; O'Neill v. James, 43 id. 84; Flandreau v. Elsworth, 151 id. 473, 482.) I. think it would be torturing the language of plaintiff’s counsel to give it the effect claimed by him; but if it could be regarded as tantamount to a withdrawal of the request for a direction, and a request to go to the jury upon, the question of abandonment, there was no exception to a refusal. The exception was to the direction in favor of the defendants. If the counsel was dissatisfied with the conclusion or opinion of the court, that he would “ have to direct a verdict one way or the other,” he should have expressed his dissatisfaction by objecting or excepting to it. This he did not do. On the contrary, he apparently acquiesced in the conclusion and consented to a determination of the question suggested by the court. The exception to the direction of a verdict in favor of the defendants was not sufficient to notify the court of an objection [739] to his disposing of the case. It only suggested to his mind that the counsel would have the verdict directed in favor of the plaintiff. The trial justice is entitled to 'have his attention called to the precise thing wanted.or objected to, so that the court which reviews his decision may be clearly and distinctly apprised of the ruling complained of. If this is not done a court of review will not regard it. This rule is not too technical or severe. It has its foundation in a just regard to the fair administration of justice, which requires that when an error has been committed there should be an opportunity to correct it at once. It does not permit a party to lie by at the trial and take the chances of sncce'ss on the grounds stated by the court, and then, if he fails to succeed, avail himself of an objection wdiicli, if it had been stated, might have beemremoved. (Frantz v. Ireland, 66 Barb. 386; Tilden v. Aitkin, 37 App. Div. 28; Walsh v. Washington Ins. Co., 32 N. Y. 440; Chamberlain v. Pratt, 33 id. 52; Magee v. Badger, 34 id. 247; Walsh v. Kelly, 40 id. 558; Trimble v. N. Y. C. &. H. R. R.,R. Co., 162 id. 84.) “ Doubt as to the application of an exception defeats it, for a judgment should stand unless the appellant can point to a definite error raised distinctly by a specific exception.- The counsel excepting must lay his finger on the point ’ he seeks tó raise, so that neither the court nor the opposing counsel will be misled, but both may act advisedly and correct the error if on reflection, after the point is clearly presented, it is regarded asan error.” (Clark v. N. Y. C. & H. R. R. R. Co., 191 N. Y. 416.) “ When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language entirely plain, so that there can be no doubt as to the real character of the exception, or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used if he deems it proper, and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” (McGinley v. U. S. Life Ins. Co., 77 N. Y. 495.) This practice is well settled and firmly established and the tendency is to increase strictness rather than to relaxation. (Brozek v. Steinway Railway Co., 161 N, Y. 63.) If, therefore, it be assumed that there was a request to [740] submit and a refusal to do so, I am of the opinion that the court had the right to assume that the exception was taken to the direction of a verdict in favor of the defendants and not to the first proposition. As before observed, it did not bring to the mind of ■the court or of the opposing counsel that the plaintiff objected to the proposition “ to direct a verdict one way or the other.” If it had clearly and distinctly covered this proposition the point would have been understood and an opportunity would have been afforded for correction,, if the court- so desired, dr the opposing counsel wished to consent to the modification. This was not done, and I do not think it was intended. ' The exception, therefore, only presents for review the question whether there is sufficient evidence to uphold the decision in favor of the defendants, and as there .is no question in that regard it follows that the judgment should be affirmed, with costs. All concurred, except Cochrane, J., dissenting in opinion, in which Kellogg, J., concurred. ¡