Leyland v. Pingree, 134 Mass. 367

Leyland v. Pingree

134 Mass. 367 | Mass. | 1883

Mostos, C. J.

There is no dispute in this case that the facts are as stated in the certificate of the presiding justice of the Superior Court. At the trial, the defendant asked the court to rule that, upon the evidence, tho plaintiff could not maintain his action. This ruling was refused, and an exception duly saved. One of the defendant’s counsel, while the other was making his closing argument to the jury, handed to the presiding justice several written requests for rulings; they were not *370shown to the plaintiff’s counsel, who had no knowledge of them until after the verdict. The judge, in charging the jury, gave instructions upon the subject matters embraced in the requests, but differing in language and in substance from the requests. The certificate states that “no exceptions were taken to the instructions given, or to the omission to give others; nor were any questions or exceptions saved in relation to the defendant’s written requests for rulings previous to the charge to the jury, or alleged before the jury were sent out, nor until after the rendition of the verdict.” The 37th rule of the Superior Court is binding upon a presiding judge, and he cannot properly allow any exceptions unless they are in some way alleged and saved in accordance with its requirements.

The form in which exceptions are saved is of no consequence. If expressly saved, of course they must be allowed. It very often happens in trials, that counsel and the judge understand that the purpose of the counsel is to save exceptions, although not alleged in express language. Whatever form may be used, if the counsel and the judge both understand that exceptions are saved, the judge may and should allow such exceptions under the rule. But, in the case before us, the presiding judge certifies that the exceptions sought to be proved were not alleged and saved at any time before the verdict of the jury. This imports that the judge did not understand, from what took place at the trial, that the defendant’s counsel saved any exceptions except the one he has allowed. This certificate, not being controlled, is conclusive, unless the defendant can maintain the proposition that what took place at the trial was, as matter of law, a du_ saving and alleging of his exceptions.

The defendant contends that the mere handing to the judge, of a written request for instructions necessarily implies that, if it is not granted, an exception is saved. We are not able to see why this act carries such an implication, any more than why the act of objecting to evidence implies an exception if it is admitted. It is the experience of every day in the trial of cases, that evidence is objected to, and admitted against the objection, but no exception is taken; in such case no exception is implied, and a judge cannot allow one, unless it is distinctly alleged. The objection furnishes ground for an exception. It *371is not in itself an exception. We think it is the same with written requests for instructions.

The object of the 37th rule is to require a party, if he objects to the charge and wishes to except to any part of it, either because it is not according to his requests or for any other reason, to allege his exceptions before the jury are sent out, either before or after the charge. This is a right of the judge. It often happens that a judge intends to give, in his own language, the substance of instructions requested, either in full, or with some modifications which are clearly right. If the parties take no exception, he has the right to assume that they are satisfied with the charge, on the other hand, if a party alleges an exception to it, it will often furnish an opportunity to correct any inadvertent expression or unintentional error. The opposite party has the right to have any exceptions so alleged that he may know what exceptions are taken. He can often, by concession, save some question of law, difficult and doubtful, but which has no practical importance in the case as it stands.

In the case before us, the defendant did, before the charge, allege one exception, which the presiding justice has allowed. We are of opinion that, if he intended to except to the charge because it did not conform to his requests for instructions, it was his duty in some form to allege exceptions, either before or after the charge; and that, not having done so, he cannot rely upon the exceptions which by this petition he seeks to prove.

The result is, that the petition must be dismissed, and the case must be heard upon the exceptions allowed by the presiding justice of the Superior Court. Petition dismissed.