Opinion
No. 262.
April 6, 1945.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Jacob N. Halper, of Washington, D.C., for appellant.
Stanley H. Kamerow, of Washington, D.C., for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
Appellant construction company sold three houses erected by it on adjoining lots facing an unimproved street in a suburban development. Its sale contracts required it to install "Street, gutter, sewer and water." Each of the three purchasers sued for damages for failure to provide a street and gutter. The cases were consolidated, trial was by jury, and the plaintiffs were awarded damages.
The defense went only to the amount of recovery. Defendant claimed that because the property abutting the street opposite plaintiffs' lots was owned by others, its obligation was limited to the cost of a street one-half the usual width and a gutter on one side only. It also submitted evidence of a lower construction cost than that testified to by plaintiffs' witness. By consent special issues were framed, directed to these disputed matters. The case was argued by counsel, and the jury were charged by the court.
At this point defendant's counsel discovered that the official plat of the subdivision, which had been put in evidence during the trial, disclosed a total frontage of plaintiffs' lots of 200 feet, whereas the evidence of cost submitted by all parties had been based on the improvement of the street for a distance of 305 feet. The latter figure was that furnished by a witness summoned by both sides, who testified that he had measured the distance required to connect the improved roadway of the street on which the properties were located with the next intersecting street. Counsel's contention was that defendant's liability was limited to the cost of street improvements in the area within the projected side lines of plaintiffs' lots; that it was not obligated to grade and pave elsewhere to connect that section with other improved streets.
The court by agreement of counsel permitted this question to be argued to the jury and, after argument, instructed them that the issue was one of fact, and that in arriving at their verdict they were to consider it with the other facts previously argued and submitted. No objection was made to this instruction.
The jury found for the plaintiffs on all of the special issues submitted, and based the amount of its verdict on a 305 foot length of street. Appellant filed a motion for new trial, which was overruled. The only error assigned on appeal is that the motion should have been granted because there was no proper basis for the amount of the verdict.
The action of a trial judge in granting or refusing a new trial may be reviewed on appeal only where there is a clear abuse of discretion. Certainly this is not such a case. The court was not only fair but indulgent to counsel in permitting him, after the case had been argued and submitted, to develop and present a new and additional theory of defense. No objection was made to the procedure adopted or to the court's instructions. The question whether the contract, providing merely "Street, gutter, sewer and water to be installed at cost of seller," called for an improved street limited to the area within the projected side lines of plaintiffs' lots, or one connected with other improved streets at either end, was properly submitted to the jury. Objection after verdict comes too late. We have held that "One cannot take his chance on a favorable verdict, reserving a right to impeach it if it happens to go the other way."
Ecker v. Potts, 72 App.D.C. 174, 112 F.2d 581; Atlantic Greyhound Lines v. Keesee, 72 App.D.C. 45, 111 F.2d 657; Franklin v. Chas. C. Schulman Co., D.C.Mun.App., 31 A.2d 871; Shlopak v. Davison, D.C.Mun.App., 34 A.2d 126.
Kintz v. Lenkin, 67 App.D.C. 116, 89 F.2d 860.
District Hauling Construction Co. v. Argerakis, D.C.Mun.App., 34 A.2d 31; Meyer v. Capital Transit Co., D.C.Mun.App., 32 A.2d 392.
Affirmed.