80 N.W. 526 (Iowa 1899), Fenner v. Crips Bros.
|Citation:||80 N.W. 526, 109 Iowa 455|
|Opinion Judge:||LADD, J.|
|Party Name:||TERESSA FENNER v. CRIPS BROS., W. S. CRIPS, S. P. CRIPS, MITCHELL GRAMMER, Appellants|
|Attorney:||McElroy & Heindel for appellants. Steck & Smith for appellee.|
|Case Date:||October 21, 1899|
|Court:||Supreme Court of Iowa|
Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.
ACTION for damages. Verdict and judgment for the plaintiff, and defendants appeal.
[109 Iowa 456]
It is sometimes difficult, because of the obscurity in the language employed, to determine precisely what issues are presented in the petition or raised by the answer. These only should be submitted to the jury. But, as the parties by amendment may introduce new issues or make certain those intended, their interpretation of the pleadings, when clearly manifested, is uniformly adopted by the courts. Thus, permitting the introduction of evidence on an issue not specifically pleaded, without objection, obviates the necessity of its formal presentation. This is put on the ground of waiver by some courts, and of that of consent or acquiescence by others. Beach v. Wakefield, 107 Iowa 567, 76 N.W. 688; Long v. Valleau, 87 Iowa 675, 55 N.W. 31; Bowers v. Thomas, 62 Wis. 480 (22 N.W. 710); Erickson v. Fisher, 51 Minn. 300 (53 N.W. 638); Isaacson v. Railway Co., 27 Minn. 463 (8 N.W. 600). Often [109 Iowa 457] the evidence is admissible on other issues clearly stated, and then nothing may be inferred from failure to make objection to its introduction. But acquiescence in the trial of a particular issue may quite as certainly appear from requesting an instruction under which it would be submitted to the determination of the jury. When an issue is clearly recognized by a party as being involved in the trial, and he not only makes no objection thereto, but affirmatively consents or requests that it be passed upon. he cannot be heard afterwards to complain of the court's action in doing what he desired. Light v. Railway Co., 93 Iowa 83; Campbell v. Ormsby, 65 Iowa 518, 22 N.W. 656; Smith v. Railroad Co., 38 Iowa 173.
II. The petition plainly charged negligence on the part of Crips Bros. in furnishing an unsafe team and an incompetent driver, but these allegations were unsupported by the evidence, and the court instructed the jury that "the only question submitted to you is whether or not the driver of the team...
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