Ford v. United Gas Corporation
Decision Date | 11 June 1958 |
Docket Number | No. 16877.,16877. |
Citation | 254 F.2d 817 |
Parties | Howard C. FORD and Lorraine H. Ford, Appellants, v. UNITED GAS CORPORATION, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Aaron L. Ford, Jackson, Miss., for appellants.
James McClure, Sr., Sardis, Miss., William H. Maynard, Clarksdale, Miss., McClure & McClure, Sardis, Miss., Maynard, FitzGerald & Maynard, Clarksdale, Miss., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.
Asserting diversity jurisdiction and alleging that a fire had occurred in their store building as a result of defendant's negligent installation therein of a gas burning appliance, plaintiffs brought this suit to recover as damages, $59,808.32 and interest thereon.
The defendant, admitting diversity jurisdiction and that it made the contract for installation attached to the complaint, denied that it was negligent or in any way liable for the fire or the damages caused thereby.
The cause was set for trial on May 8, 1957, a day of the regular May term, and on May 6, alleging that named insurance companies had paid plaintiffs $30,000, the full amount of insurance carried on their stock of merchandise under contracts subrogating them pro tanto to plaintiffs' claim for damages and that they were real parties at interest, defendant moved to make them parties. On May 8, the district judge, of the opinion that the motion should be allowed, entered an order that the named companies be made parties, and the cause proceeded to trial as scheduled on the pleadings of, and the issues joined between, plaintiffs and defendant.
The evidence all in and defendant's motion for a directed verdict, on the ground that the evidence was insufficient to take the case to the jury, denied, the cause was submitted to the jury on a general charge. At its conclusion, in response to the inquiry of the court whether plaintiffs had any objections, exceptions, or requests, their counsel stated, "We have no request for additional charges and no exceptions except to the part of the charges dealing with the recovery of interest".
Here upon a record devoid of timely objection or exception, except in the single instance of Mrs. Andrews' testimony, where the matter objected to could not possibly have resulted in prejudice, plaintiffs, under eight numbered specifications, present four grounds for reversal. One of these is the entry of the order making the insurance companies plaintiffs. A second is receiving Mrs. Andrews' testimony that she had issued a fire insurance policy in favor of plaintiffs. A third and fourth are that the charge of the judge was erroneous.
We think it quite clear that no reversible error is assigned or shown. A litigant may not, speculating on a verdict without making objection, keep silent while matters are transpiring in the trial court and then put the trial judge in error by assigning error in the appellate court in respect of them, except, of course, in a case, which this is not, of plainly prejudicial error. In Maryland Casualty Co. v. Reid, 76 F.2d 30, 33, this court thus stated the principles controlling here:
The record will be searched in vain for any objection or exception of plaintiffs, stating their grounds therefor, to the orders or actions of the court in respect of the insurance companies. In addition, none of the matters of which appellants attempt to complain here constituted reversible error.
It will be noted that the specifications pertaining to the first ground of error, the order of the court bringing the insurance companies in...
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...indispensable party.4 Accordingly ancillary jurisdiction was exercised over a defendant joined as a necessary party in Ford v. United Gas Corp., 254 F.2d 817 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958), and in Jacobs v. United States, 367 F.Supp. 1275 (D.Ariz. 1......
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Princemont Construction Corp. v. Smith
...error in the appellate court with respect of them, except, of course, in a case * * * of plainly prejudicial error." Ford v. United Gas Corp., 254 F.2d 817, 818 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958). Compare Parker v. United States, No. 22,159 (D.C.Cir. Ap......