WM. W. FLOURNOY, PLAINTIFF IN ERROR,
v.
INTERSTATE ELECTRIC COMPANY, A CORPORATION, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a judgment for electrical supplies, holding that the appellant failed to properly preserve issues regarding evidence sufficiency and jury instructions for appeal.
The court held that issues not properly preserved through timely exceptions in the trial court, such as the sufficiency of evidence or specific jury charges, cannot be considered on appeal.
“There is no error assigned upon the overruling of the motion for a new trial and we are not therefore concerned with the sufficiency of the evidence nor the alleged excessiveness of the verdict, which is in proper form.”
Establishes that the court will not review the sufficiency of evidence or verdict amount because no error was assigned on the denial of a new trial.
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Join FLexlaw to unlock all legal intelligenceThe Electric Company obtained a judgment against Flournoy for electrical supplies. The building for which the supplies were intended was destroyed by …
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Cockrell, J.
The Electric Company obtained judgment upon the common counts for electrical supplies furnished the plaintiff in error for a building, which was burned before the work was completed.
There is no error assigned upon the overruling of the motion for a new trial and we are not therefore concerned with the sufficiency of the evidence nor the alleged excessiveness of the verdict, which is in proper form. The rule rendering inadmissible an extra judicial statement as to agency does not forbid a witness upon the stand testifying as to facts constituting his agency. The agency was sufficiently shown, in the absence of any evidence to the contrary, to be assumed as a fact by the court.
To avail as error, the refusal to instruct must be ex cepted to at the time, and where the supposed instruction appears only in the assignments of error, it will not be considered.
While several of the charges given are assigned for error they do not appear to have been excepted to either at the time they were given, or in the motion for a new trial, and are not properly before us.
There is one charge possibly here for consideration, which is briefly referred to in the motion for new trial, to the effect that delivery to a common carrier is delivery to the defendant. No objection is made to this as an abstract charge and under the circumstances of this case we And no objection to it here. If any qualification of the charge had been desired, it should have been requested.
We find no error and the judgment is affirmed.
Whitfield, C. J., and Shackleford, J., concur;
Taylor, Hocker and Parkhill, J. J., concur in the opinion.
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Richardson v. State, 100 Fla. 835 (Fla. 1930)…o in this manner but exceptions to such refusals must be taken and noted at the time of such refusals otherwise they cannot be considered on writ of error. Burroughs v. State, 17 Fla. 643; Lester v. State, supra; Flournoy v. Interstate Electric Co., 61 Fla. 216, 55 So. R. 843. The motion for a ne.w trial does not contain an exception to the refusal to give any certain requested instruction and only a most general exception is taken to the charges en masse as actually given. Twenty-three of the assignment…
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Rhodes v. Edw. K. Tryon Co., 132 Fla. 880 (Fla. 1938)…, text 56 and 57, where the Court quoted from Greenleaf on Evidence, Vol. 1, page 564, 3 Ed., as follows: “An agent is a competent witness to prove his own authority if it be by parol.” And again in the case of Flournoy v. Interstate Electric Co., 61 Fla. 216, 55 So. 843, this Court recognized the distinction between extra judicial declaration as to agency and the testimony of the alleged agent: [*882] “The rule rendering inadmissible an extra-judicial statement as to agency does not forbid a witness upo…