Frye v. Ferguson

Kellam, J. In the circuit court for Fall River county, upon trial before a jury, judgment was rendered in favor of respondents against appellant, who appeals from the same. Error is assigned as follows: “(1) The court erred in admitting the evidence of William H. Woodward as to the value of legal services sued for, the said evidence being incompetent. (2) The court erred in failing to reduce his instructions to writing, and in failing to send said instructions, so reduced to writing, to the jury on their retirement. (3) The court erred in failing to instruct the jury that the burden of proof rested upon the plaintiff. (4) The court erred in refusing to grant a new trial on newly-discovered evidence, as set forth in the affidavits in support of a motion for a new trial herein. (5) The verdict is not sustained by the evidence, and is against the clear preponderence of the evidence.” [394] Woodward, who testified, with others, as to the value of plaintiffs’ services as attorneys, to recover for which this action was brought, said that he was a practicing attorney in Lincoln, Neb., was county attorney, and had practiced his profession for 20 years; that he was acquainted with the value of such professional services as confessedly constituted the ground, of respondents’ claim or cause of action, and then testified as to their value. His evidence was objected to on the ground of his incompetency, it not being shown that he had any knowledge of the value of such legal services in South Dakota, or Fall River county. We think the witness was competent. There was no attempt to show that such services were worth less or more in South Dakota than in Nebraska, or that, for any reason, their value should be estimated upon a different basis or by a different rule. If, as was shown on his cross-examination, he had never practiced in Fall River county or in the state of South Dakota, but based his estimate upon his knowledge of the value of such services in Lincoln, Neb., this might affect the weight which the jury would give to his testimony, but it did not render him an incompetent witness, there being nothing, as before stated, to indicate to the court that different conditions existed in the two places, not very distant from each other, that would affect the value of such services. See, Enos v. Insurance Co. (S. D.) 57 N. W. 924; Gleckler v. Slavens (S. D.) 59 N. W. 323; Johnson v. Gilmore (S. D.) 60 N. W. 1070. The second error assigned is that “the court erred in failing to reduce his instructions to writing, and in failing to send such instructions, so reduced to writing, to the jury on their retirement.” The abstract shows that the instructions were given orally, and as given were taken down by the official stenographer, and that no objection was made by either party then or subsequently. Under such circumstances the trial court had a right to understand that both parties were satisfied with this method, and waived a strict 'pursuance of the. statute, if this [395] was not. Under precisely such conditions the territorial supreme court, in Stamm v. Coates, 4 Dak. 69, 22 N. W. 593, said: “We are clearly of the opinion that the defendant, by sitting by and allowing the court to instruct orally without objection, waived any right to except to this method ^of giving instructions, and consequently to the failure to give the charge to the jury in writing, to be by them taken in their retirement.” We are entirely satisfied with this conclusion. It is fully sustained in Head v. Langworthy, 15 Iowa, 236, in which the court said: “If a party shall sit by, with a knowledge that the statute is not being complied with, and fail to object or except to this method of charging, we do not think that he can afterwards be heard to complain of the same.” Thompson so states the law in his work on Trials (section 2378). It is next assigned as error that the court failed to instruct the jury that the burden of proof rested upon the plaintiff. There is no record here showing error in this respect. No request was made for such an instruction, and if the court inadvertantly omitted it the defendant should, either by request for such instruction, or exception to the charge on account of .such omission, have called the attention of the court to it. The failure of the judge to charge upon any material point usually results from inadvertence, and the law. casts upon the parties the duty of calling the judge’s attention to the matter. If he then refuse to give a proper requested instruction, such refusal is ground of error; but a party cannot in a court óf error; avail himself of an omission which he made no effort to have supplied at the time. Haynes, New Trials & App. § 120; 2 Am. & Eng. Enc. Law, p. 258, where a large number of cases are cited in support. ' . The fourth assignment of error is refusing a new trial on the ground of newly discovered evidence. The application on this ground was addressed to the sound discretion of the trial court, and the action of that court will not be disturbed, except for an abuse of such discretion; the presumption being that the [396] discretion was properly exercised. Grant v. Grant, (S. D.) 60 N. W. 743; Hobler v. Cole, 49 Cal. 250. Upon reading tbe affidavits for and against the motion, we are quite satisfied that we should not be justified in saying that the discretion of the trial court, was improvidently exercised. The affidavits leave it a doubtful question whether the evidence claimed to be newly discovered was not in fact known to defendant at the time of the trial, and that he declined to call the witnesses named, on account of his relation to and distrust of them. At all events, the question is not close’ enough to require an analysis of the affidavits by us. We are clear that the case is not one calling for a review of this question by this court. The remaining assignment is that the verdict is not sustained "by the evidence. This alleged error was not made a ground upon which a new trial was asked, nor does there anywhere in the record appear any specification of the particulars in which the evidence is so claimed to be insufficient, as required by sections 5090, 5094, Comp. Laws. Upon such a record, such assignment is not available to appellant. We find no error in the record, and the judgment is affirmed. All the judges concur.