Goldberg v. Wunderlich

• Decision Date: 31 January 1933
• Citation: 59 S.W.2d 1018,248 Ky. 798
• Parties: GOLDBERG v. WUNDERLICH.
• Court: Kentucky Court of Appeals

59 S.W.2d 1018

248 Ky. 798

GOLDBERG v. WUNDERLICH.

Court of Appeals of Kentucky

January 31, 1933

Rehearing Denied May 30, 1933.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Charles A. Wunderlich against Morris Goldberg and others. From a judgment in favor of the plaintiff, and against the defendant named, he appeals.

Affirmed.

William Goldberg, of Louisville, for appellant.

Charles W. Morris and Oscar Leibson, both of Louisville, for appellee.

CREAL C.

Charles A. Wunderlich instituted this action in the Jefferson circuit court against Morris Goldberg, Morris Goldberg & Sons Incorporated, and the city of Louisville, seeking to recover damages sustained in a fall which he alleged was caused by the defective and unsafe condition of cellar doors in the sidewalk in front of a building owned by Morris Goldberg.

A demurrer of the city of Louisville to the petition as later amended having been sustained, and the defendant declining to further pleAD as to the city, the petition as to it was dismissed.

The separate answers of Morris Goldberg & Sons consisted of a general denial of the allegations of the petition. In ADdition to a traverse in the separate answer of Morris Goldberg, a second paragraph pleADed contributory negligence and in a third paragraph, he pleADed that the cellar doors were on a part of the premises which he hAD leased to the Edwards Shirt Shop, No. 2, Incorporated, under a written lease containing a provision exempting him from liability for any damage caused by failure to keep the leased premises in repair, and imposing upon the lessee all liability for damage caused by defective conditions of premises, including the cellar door. He alleged that the lessee was a nonresident of the state, and asked for the appointment of a warning order attorney to notify it of the nature of the action. The court sustained a motion to strike the third paragraph from the answer.

The cause, having been submitted to a jury on the issues as completed, resulted in a verdict and judgment against Morris Goldberg in the sum of $543, and he appeals.

Grounds for reversal relied on are: (1) Incompetent evidence ADmitted over appellant's objections; (2) refusal by the court to ADmit competent evidence offered by appellant; (3) refusal to give instructions offered by appellant; (4) erroneous instructions given by the court; (5) refusal to peremptorily instruct the jury to find for appellant; (6) that the verdict is excessive; (7) misconduct of a juror.

It is first argued that the court committed error in ADmitting in evidence a photograph showing the condition of the sidewalk and cellar door a few days after appellee is alleged to have sustained his injuries, and certain evidence relating to the photograph. Even if the court committed error in this particular, appellant is not in position to complain on appeal, since it is not mADe to appear in the record that objections were mADe or exceptions saved to the ADmission of this evidence. Incompetency of evidence ADmitted without objection is waived. Lee v. Lee, 226 Ky. 776, 11 S.W.2d 956; Cable Piano Co. v. Lewis, 195 Ky. 666, 243 S.W. 924.

It is next urged that the court erred in not permitting appellant to introduce in evidence photographs of the premises. The accident is alleged to have occurred on November 1, 1930, and the photographs in question were taken in the latter part of October, 1931. The only reference to the pictures is found in the evidence of Nelson Johnson, a witness for appellant. He testified he was manager of the Edwards Shirt Shop. He was shown a picture and asked if he recognized it, and replied, "That is the cellar door. I don't know which one it is." When asked if it looked like that, he answered, "Similar to that, not in that condition." In answer to other questions he testified he never saw the door in that condition. Later in the examination of the witness the following occurred:

"By Mr. Parr: I want to ask the witness further about that picture I want to introduce. I have got the photographer out there.

By Mr. Morris: It was taken over a year later.

By Mr. Parr: That does not make any difference.

By Mr. Morris: Let the court judge about that.

Objection sustained, to which defendants, by counsel excepted."

The foregoing is all that is shown in the record with reference to any picture offered in evidence by appellant. The picture is not identified, nor is there any evidence that it showed the condition of the sidewalk or cellar doors at the time it was taken or at the time the accident occurred. From the state of the record it is apparent that this contention is without merit.

Appellant offered an instruction in substance directing a finding for appellants if the jury believed from the evidence that the premises described in the petition hAD been leased by appellant to the Edwards Shirt Shop and the latter assumed control of the leased premises, and at the time the lease was mADe the cellar door was not defectively constructed or out of repair. It is most earnestly argued that the court erred in...