Boutelle v. Dean

• Decision Date: 28 November 1888
• Citation: 148 Mass. 89,18 N.E. 681
• Parties: BOUTELLE v. DEAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 89

18 N.E. 681

BOUTELLE v. DEAN.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1888

COUNSEL

S.M. Thomas, for plaintiff.

J. Brown, for defendant.

OPINION

MORTON, C.J.

No exceptions were properly saved at the trial. The plaintiff's counsel, before the closing argument, handed to the court a paper containing many requests for rulings, but the attention of the defendant's counsel was not called to them either by the court or the plaintiff's counsel. The presiding justice said to the plaintiff's counsel: "I will charge the jury, and if I do not cover your requests, you can call my attention to the rulings to which you wish to except." The plaintiff's counsel assented to this, and after the charge he took no exceptions, and made no suggestion that he was not satisfied with it. He thus waived any exceptions to the charge. If it did not cover his requests, it was his duty to call the attention of the court to such parts of it as he excepted to. It is not material whether he stated to the judge, when he handed to him the requests, that he wished to except if they were not granted. The course pursued by the presiding justice was reasonable and proper, designed and calculated to promote the orderly and fair administration of justice, and to secure the rights of both parties. By his assent to it, the plaintiff's counsel waived any exceptions to the charge, although he may have previously said that he wished to except if his requests were not granted. It was his duty, in fairness to the court and to the other side, to point out the particulars in which he was dissatisfied with the charge, thus giving the court an opportunity to correct any unintentional error, and enabling the other party to know what exceptions were taken, and perhaps by concession to save some doubtful question of law which has no important bearing in the case. Ela v. Cockshott, 119 Mass. 416; Leyland v. Pingree, 134 Mass. 367; McMahon v. O'Connor, 137 Mass. 216; Bonino v. Caledonio, 144 Mass. 299, 11 N.E. 98. Exceptions dismissed.