Donald Albert Heerman v. Jessalynn Burke

On Petition for Rehearing.

PER CURIAM.

On Petition for Rehearing, it is contended by the appellee that we overlooked the fact that the appellant did not except to the trial court’s charge in the manner required to preserve for review any alleged error in the charge as given by the trial court. Appellant’s main brief charged error in the refusal of the trial court to charge the jury on his theory of the case. Appellee, in her brief, in answer to this alleged error, argued that, “The trial court correctly submitted the issue of defendant’s negligence to the jury under proper instructions * * Nowhere in appellee’s brief is there any suggestion that appellant did not take proper exceptions to the instructions so as to enable him to raise this question. There is not a suggestion in the entire brief questioning the sufficiency of the exceptions to the instructions and, hence, this court had no occasion or opportunity to pass upon that question. As it was not raised in this court, we could not have overlooked it. Having taken issue on the merits of this question, appellee waived the procedural question as to the sufficiency of the exceptions taken. Petition for Rehearing is denied.