Taliaferro v. Shepherd

• Decision Date: 13 June 1907
• Citation: 107 Va. 56,57 S.E. 585
• Parties: TALIAFERRO v. SHEPHERD et al.
• Court: Virginia Supreme Court

57 S.E. 585

107 Va. 56

TALIAFERRO

v.SHEPHERD et al.

Supreme Court of Appeals of Virginia.

June 13, 1907.

1. Appeal — Review — Estoppel to Allege Error.

Where defendant made no objection to the admissibility of evidence, and made no motion to exclude it, and tendered evidence to meet it, he could not complain on appeal that it was not admissible under the declaration.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1258-1280.]

2. New Trial—Newly Discovered Evidence —Diligence.

In order to entitle one to a new trial on the ground of newly discovered evidence, it must be shown that it could not have been produced by reasonable diligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 210-214.]

Error to Law and Equity Court of City of Richmond.

Action by W. T. Shepherd against the city of Richmond and others. Judgment in favor of plaintiff against defendant P. P. Taliaferro, and he brings error. Affirmed.

Meredith & Cocke, for plaintiff in error.

H. R. Pollard and George C. Gregory, for defendants in error.

WHITTLE, J. This action of trespass on the case was brought by W. T. Shepherd, the defendant in error, against the city of Richmond, W. E. Cutshaw, city engineer, and his assistant, P. P. Taliaferro, the plaintiff in error, to recover damages for the alleged wrongful act of the defendants in raising the grade line of the sidewalk and street in front of the plaintiff's dwelling by filling in earth, stone, and gravel.

The trial resulted in a verdict in favor of the city and Cutshaw, and an adverse verdict and judgment against Taliaferro, and upon his petition this writ of error was awarded.

The chief ground of complaint is that, in the absence of any averment in the pleading to that effect, the jury were instructed and based their finding upon the pretension that the grade line given by Taliaferro to the contractor charged with the construction of the dwelling was erroneous, which error it is alleged occasioned the damage sustained by the plaintiff. In other words, the gist of the charge, which practically permeates all the assignments of error, is that there has been a material departure in the evidence and instructions from the cause of action set out in the declaration.

Conceding, as an original proposition, that the procedure was amenable to that objection, it is, nevertheless, clear that Taliaferro is estopped by his conduct from relying upon that ground of exception. He made no objection to the admissibility of the evidence when offered, and submitted no motion to exclude it; but, on the contrary, accepted the issue irregularly tendered by the plaintiff, and undertook to maintain his side of it by countervailing testimony. He took chances of winning on that issue, and, having lost, upon familiar principles, his objection must be considered as waived. S. V. R. Co. v. Moose, 83 Va. 827, 3 S. E. 796; Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S. E. 869, 70 L. R. A. 999; Richmond Ry., etc., Co. v. West, 100 Va. 188, 40 S. E. 643; Portsmouth St. R. Co. v. Reed, 102 Va. 662, 47 S. E. 850; N. N. & O. P. Ry., etc., Co. v. McCormick, 106 Va. —, 56 S. E. 281. There was also an express waiver by Taliaferro of objection to the consideration by the jury of evidence tending to show that he gave the grade line in question upon verbal rather than written application, which...