Gilbert v. Fuhrman

This suit was filed in the county court at law by appellee against appellant, in which he sought to recover judgment for the sum of $280, alleged to have been stolen from his grip in his room while a guest in appellant's hotel. Appellee alleged that said loss of said money was occasioned through the negligence, carelessness, and default of appellant, in that appellant

"had no safe or place of deposit in the office of said hotel for the money or valuables of its guests, and no notice, in any way, was given plaintiff by as to depositing money or valuables of guests while plaintiff was abiding at said hotel."

Appellant denied any knowledge of the fact that appellee had any money in his grip while he was a guest in the hotel; denied a knowledge of the loss of the money; denied that he was guilty of any act of negligence; alleged that while he had no safe for keeping valuables of guests, he had always safely kept valuables of guests when requested so to do; alleged that appellee at no time advised him that he had money in his grip, and made no request of appellant for its safe deposit or keeping. The case was tried to a jury. A verdict was returned in favor of appellee, on which the court rendered judgment in his favor.

Appellant presents four assignments of error, all complaining of the court's charge. The court gave the following charge to the jury:

"The court instructs the jury that the only issues in this case for the jury to pass upon are the issues whether or not the plaintiff had in his possession $280, in good and lawful money, and whether or not he had the same stolen from the room occupied by him in defendant's hotel, after plaintiff had locked the door to his room in said hotel and was absent from the same."

The record filed in this court does not show that appellant, at any time, presented any objection or took any exception to the charge of the court. Article 1971, Revised Civil Statutes 1911, as amended by chapter 59, p. 113, Gen. Laws 33d Leg., requires the court's charge to be in writing, and by the court submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine it and present objections thereto, and provides that all objections not so made and presented shall be considered as waived. We must therefore conclude that appellant was satisfied with the charge given and the issues therein submitted, and waived any errors in said charge he now offers to present to this court. He should have presented them to the trial court at such time as the statute requires, when the supposed errors, if any, could have been corrected, and when such additional issues as the pleadings and evidence would admit could have been submitted to the jury. As said by the appellate court for the Second district in Stephenville, N. S. T. Ry. Co. v. Wheat, 173 S.W. 977: "The act is not only explicit, but it is also mandatory in its terms." It seems to us quite clear that any error in a charge, though fundamental in its nature, can be and is waived by not presenting objections to it within the time and in the manner prescribed by the statute. To hold otherwise would make the statute of no effect.

For the reasons given, we cannot consider any of the assignments of error, and the case is affirmed.