Naughton v. Stagg

Decision Date26 June 1877
Citation4 Mo.App. 271
PartiesDANIEL NAUGHTON, Respondent, v. HENRY STAGG, Appellant.
CourtMissouri Court of Appeals

1. Where the ground of objection to evidence is not specifically urged at the trial, the matter will not be considered by the appellate court.

2. Where it does not appear from the record that exceptions were taken at the time instructions were given or refused, they will not be reviewed on appeal.

3. The testimony of experts is not admissible upon matters of judgment within the experience of ordinary jurymen.

4. It is not error to refuse to allow a witness to testify as an expert where it is not shown that his experience or business is such as to give him a peculiar or special knowledge of the matters as to which his testimony is offered.

5. Where it is not shown that the discretion of the trial court in limiting the time of counsel in addressing the jury was abused, this action of the court will not be reviewed on appeal.

APPEAL from St. Louis Circuit Court.

Affirmed.

P. E. BLAND, for appellant: It was error, and an abuse of the discretion of the court, to limit counsel in the argument to thirty minutes.-- The State v. Linney, 52 Mo. 42; Trice v. Hannibal & St. Joseph R. Co., 35 Mo. 216; The State v. Page, 21 Mo. 257, Scott dissenting, p. 260.

A. W. SLAYBACK, for respondent: Only those errors to which the attention of the court below was called in the motion for new trial will be reviewed by an appellate court.-- Lancaster, Admr., etc., v. Washington Ins. Co., 62 Mo. 121; Vivion v. Lafayette County, 13 Mo. 453. Instructions will not be reviewed when no exceptions are taken below.-- Mattock v. Williams, 59 Mo. 105; Wash v. Allen, 50 Mo. 181; Gordon v. Gordon, 13 Mo. 215; Hirt v. Hahn, 61 Mo. 496.

BAKEWELL, J., delivered the opinion of the court.

This is a suit on a mechanic's lien. The first count in the petition is for work and material furnished on a building contract for the erection of a dwelling-house, and the second count is for extra work. For work under the contract, and changes made by agreement during the progress of the building, plaintiff demands a balance, said to be due, of $2,319.17; and under the second count, for extra work and materials, he asks judgment for $195. The answer admits the contract; denies that the lien was filed in time; denies that defendant is bound by agreement to pay any thing for the changes from the original contract; and asks to recoup $1,000 damages for the unworkmanlike manner in which the building was constructed. The answer also puts in issue the averments of the second count, and sets up counter-claims to the amount of $1,105.

The testimony was conflicting on every issue except as to the counter-claims. There was a verdict for plaintiff for $1,586.81. Plaintiff remitted $527, and judgment was rendered for the balance; and plaintiff appeals.

Several instructions were given at the instance of either side, and some instructions asked by defendant were refused; but as no exceptions were saved, during the trial, to the action of the court in giving and refusing instructions, we shall not consider them. Objections to instructions, taken for the first time on the motion for a new trial, will not be considered here. The record must show that exceptions were taken at the time the instructions were passed upon, otherwise they are not subject to review by the appellate court. 14 Mo. 367.

It appears that the work sued for was to be done according to plans and specifications furnished by one Bridwell, the architect and superintendent employed by defendant. A sum of something more than $500 is claimed by plaintiff for extra work, caused by changes in the plans. Defendant denies that any changes in the plans were made with his consent. On the trial, plaintiff was introduced as a witness on his own behalf, and in the course of his testimony said: “I would also say there was a change made in the cut above. On the front I was ordered to cut the stone out; but there was a subsequent plan made out, whereby more sills were to be put in, which threw an immense amount of work upon it. I copied the items and put them in the bill; and when I got the stone up, Mr. Bridwell gave a subsequent plan, which was nine inches wider than the original plan; so I had to make an entire change upon the whole, and not let Mr. Stagg, as he said, know any thing about it, and that ( sic) if there was any change or any difference about the windows, it would make no difference.”

Defendant's counsel objected to any evidence of changes in the work, not known to defendant, going to the jury, and asked that it be ruled out; to which the court said that the witness could state whether defendant assented to the change or not. However, no further statement on the subject was asked of, or made by, the witness at that time. The defendant's counsel objected to the action of the court in not ruling out this evidence, and the examination proceeded on other points.

We see nothing in this action of the court to warrant a reversal of the judgment. If defendant's counsel had pressed the matter, and required the witness to state whether or not Stagg knew of these changes, the court would, perhaps, on application of counsel, have ruled out this testimony. As it was, the jury were instructed, at the instance of defendant, that Bridwell had no authority to agree for Stagg to any changes in the work, and that defendant was not bound by any such agreement of Bridwell, if such an agreement was made. And if, as defenda...

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6 cases
  • Eubank v. City of Edina
    • United States
    • Missouri Supreme Court
    • April 30, 1886
    ...Wagner v. Jacoby, 26 Mo. 530; Newmark v. Ins. Co., 30 Mo. 160; Gavisk v. Railroad, 49 Mo. 274; State v. Tompkins, 71 Mo. 613; Naughton v. Stagg, 4 Mo. App. 271; Abbott's Trial Evidence, 586. Wharton's Evidence, sec. 512; Loewer v. Sedalia, 77 Mo. 431. BLACK, J. This is an action for persona......
  • State v. Musgrave
    • United States
    • West Virginia Supreme Court
    • November 10, 1897
    ...827]it is entirely immaterial what the witness own opinion may be as to his own qualifications or competency." So in Naughton v. Stagg, 4 Mo. App. 271. If error herein, it is by no means so material as to affect the case. The following question, put by the state to Dr. Few, was objected to:......
  • State v. Musgrave. (Brannon
    • United States
    • West Virginia Supreme Court
    • November 10, 1897
    ...alone, "and it is entirely immaterial what the witness' own opinion may be as to his own qualification or competency." So in Naughton v. Stagg, 4 Mo. App. 271. If error herein, it is by no means so material as to affect the case, The following question, put by the State to Dr. Few, was obje......
  • Stevens v. City of Minneapolis
    • United States
    • Minnesota Supreme Court
    • December 6, 1889
    ... ... qualification; that is a question for the court, to be ... determined upon the facts in evidence. Boardman v ... Woodman, 47 N.H. 120; Naughton v ... Stagg, 4 Mo.App. 271; Mercer v ... Vose, 8 J. & S. 218. [42 Minn. 139] When we look for ... facts tending to prove his competency, we find ... ...
  • Request a trial to view additional results

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