SILVER LAKE ESTATES CORPORATION
v.
J. C. MERRILL, AS CO-PARTNER OF A. J. SMYTHE, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF SMYTHE & COMPANY, J. C. MERRILL, INDIVIDUALLY, AND SILVER SPRINGS FRUIT COMPANY
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Silver Lake Estates Corporation sought review of a judgment favoring defendant J. C. Merrill on a writ of error, claiming the trial court erred in its jury instructions regarding partnership liability, particularly the liability of secret partners. The Florida Supreme Court affirmed the judgment, holding that the plaintiff failed to preserve the issue for appeal through proper exception and specific charge requests.
The court held that because plaintiff failed to take a proper exception to the jury charge and failed to request a specific charge on secret partner liability, the issue was not properly preserved for appellate review. The court further held that substantial evidence in the record supported the jury's verdict, and therefore the judgment was affirmed.
“Error can not be assigned upon the judge's failure to charge upon any question of law unless the party desiring it shall have requested the desired instruction.”
Establishes the foundational rule that parties must request specific jury charges to preserve the issue for appeal
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Join FLexlaw to unlock all legal intelligenceSilver Lake Estates Corporation sued J. C. Merrill as an alleged member of a co-partnership (Smythe & Company) and Silver Springs Fruit Company for pa…
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Writ of error in this case brings for review judgment in favor of defendant who was alleged to have been a member of a co-partnership.
It is contended on brief that the trial court erred when *468instructing the jury generally on partnership in that he gave a charge which omitted any reference to the liability of a secret partner when the pleadings in the case raised the issue of a partnership and there was some evidence to sustain the position that one of the defendants, J. C. Merrill, was' a secret partner and liable for partnership debts.
It is next contended that a certain charge given by the court was insufficient because plaintiff requested the court to give a general charge on partnership.
It is next contended that the verdict of the jury was contrary to the evidence.
There was no exception reserved to the charge of the court. Neither does the record show the request for any proper charge which was not given. In fact, the record does' not show any charge which was requested by the plaintiff in error. The only reference to charges contained in the motion for new trial is ground Three (3) which reads as follows:
“Because the charge of the court to the jury concerning the liability of a secret partner was erroneous.”
■ This statement of a ground in motion for new trial is too vague and indefinite to point out any infirmity or error in a charge which had been given by the court and as to which no exception had been taken.
In this state of the record there is nothing presented for us to review. Daly v. State, 67 Fla. 1, 64 So. 358; Bogue v. McDonald, 14 Fla. 66; Dupont v. Baker, 14 Fla. 272; Williams v. State, 32 Fla. 251, 13 So. 429; Thalheim v. State, 38 Fla. 169, 20 Sou. 938; McRainey v. Langston, 92 Fla. 903, 110 So. 536; Melbourne v. State, 51 Fla. 69, 40 Sou. 189.
“Error can not be assigned upon the judge’s failure to charge upon any question of law unless the party desiring *469it shall have requested the desired instruction.” Carter v. Bennett, 4 Fla. 283; Cato v. State, 9 Fla. 163; Reed v. State, 16 Fla. 564; Lungren v. Brownlie, 22 Fla. 491; Blount v. State, 30 Fla. 287, 11 So. 547; Carr v. State, 45 Fla. 11, 34 So. 892; Lindsey v. State, 53 Fla. 56, 43 So. 87; Dugh v. State, 55 Fla. 150, 45 So. 1023; Key West v. Baldwin, 69 Fla. 136, 67 So. 808; Herndon v. State, 73 Fla. 451, 74 So. 511; Cross v. State, 73 Fla. 530, 74 So. 593; Hobbs v. State, 77 Fla. 228, 81 So. 444; Witt v. State, 80 Fla. 38, 85 So. 249; Cason v. State, 86 Fla. 276, 97 So. 720; Stanley v. State, 93 Fla. 372, 112 So. 73; Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333.”
“In order to enable an appellate court to review the ruling of the trial court in giving or refusing charges an exception duly taken to such ruling must be made to appear of record (Stewart v. Mills, 18 Fla. 57; Parnell v. State, 47 Fla. 90, 36 So. 165; Savannah, etc., Ry. Co. v. Brink, 44 Fla. 713, 33 So. 245; Potsdamer v. State, 17 Fla. 895) by a bill of exceptions. Mathis v. State, 70 Fla. 194, 69 So. 697; Clark v. State, 59 Fla. 9, 52 So. 518; Freeman v. State, 50 Fla, 38, 39 So. 785.”
The evidence was conflicting, but there is substantial evidence, as disclosed by the record, to sustain the verdict. For the reasons stated, the judgment must be affirmed.
It is so ordered.
Affirmed.
Whitfield, C. J., and Brown and Davis, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fred Howland, Inc. v. Morris, 143 Fla. 189 (Fla. 1940)…jury on any point must ask the court to give the desired instruction, and otherwise will not be permitted to assign the court’s omission to so instruct as error. Adelhelm v. Dougherty, 129 Fla. 680, 176 So. 775; Silver Lake Estates Corp. v. Merrill, 120 Fla. 467, 163 So. 7; Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333; City of Key West v. Baldwin, 69 Fla. 136, 67 So. 808. The record before us shows nothing more than a general exception by defendant to the charge given by the trial judge…
Authorities Cited (31 total)
- Thalheim v. State, 38 Fla. 169 (Fla. 1896)
- Pleas Lindsey v. State, 53 Fla. 56 (Fla. 1907)
- The City of Key W. v. Baldwin, 69 Fla. 136 (Fla. 1915)
- Stanley v. State, 93 Fla. 372 (Fla. 1927)
- Gottschalk Potsdamer v. State, 17 Fla. 895 (Fla. 1880)
- Herndon v. State, 73 Fla. 451 (Fla. 1917)
- Daly v. State, 67 Fla. 1 (Fla. 1914)
- Farish Carter v. Archibald T. Bennett, 4 Fla. 283 (Fla. 1852)
- Huararcher B. Blount v. State, 30 Fla. 287 (Fla. 1892)
- Carr v. State, 45 Fla. 11 (Fla. 1903)