Gerber v. Aetna Indemnity Co.

Morris, J.

The only errors suggested on this appeal are in the giving and refusing to give instructions; and we are met at the outset by a motion to affirm the judgment upon the ground that the record shows no proper or sufficient exceptions taken to the errors assigned. The trial was had on October 19, 1909. No exceptions appear to have been taken to the instruction now complained of, nor to the refusal to give the one offered. On October 28, however, appellant filed its exceptions with the clerk. So far as the record goes, this appears to be all that was done in this connection. Under the rule announced in Coffey v. Seattle Electric Co., 59 Wash. 686, 109 Pac. 202, this was not a proper or sufficient exception, and the motion to affirm is well taken.

Appellant contends that it brings itself within the rule announced in the Coffey case by taking a proper exception to the court during the trial. It appears that, during the giving of the instructions, counsel for respondent interrupted the court and called its attention to what he deemed was an improper statement of the law, and asked the court to then and there correct it. The court thereupon dismissed the jury and heard from counsel as to their respective contentions in this regard. After some argument, the court seemed inclined in respondent’s favor. Counsel for appellant thereupon, among other things, said to the court:

“I submit the matter to your honor’s consideration, and I think that should you make the other qualification of the instruction, it will be error. All three of these cases refer to another condition, to the first branch of the contract.”

Further argument was then heard by the court, and counsel again stated:

“I do not want to take advantage of the record, but I am satisfied that that would be error, because it refers to an entirely different condition ...”

We cannot hold, when during the argument upon a legal contention counsel indicates to the court his contention that the court is about to make an erroneous ruling, that such expression of counsel’s view will operate as, and take the place of, an exception to the ruling,- Exceptions, and the manner of taking the same, are controlled by statute, and to be beneficial the statutory requirement must be followed.

The judgment is affirmed.

Rudkin, C. J., Dunbak, Ckow, and Chadwick, JJ., concur.