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Don Kemper Co. v. Beneficial Standard Life Insurance Co.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: April 20, 1970.

DON KEMPER COMPANY, INC., APPELLANT,
v.
BENEFICIAL STANDARD LIFE INSURANCE COMPANY

Kalodner and Van Dusen, Circuit Judges, and Fullam, District Judge.

Author: Per Curiam

Opinion OF THE COURT

This case is before this court for the second time on an appeal from the entry of a judgment on a jury verdict for defendant returned at the end of a new trial resulting from our opinion and supplemental opinion of October 25, 1968, and January 13, 1969, respectively. See Don Kemper Co. v. Beneficial Standard Life Ins. Co., 3 Cir., 404 F.2d 752 and 758.*fn1

Plaintiff contends that it is entitled to a new trial because of errors (1) in the admissions and exclusion of evidence offered by it and (2) in the charge of the trial judge. After thorough consideration of the record, we have concluded that there was no error in the admission or exclusion of evidence which makes the refusal to grant a new trial "inconsistent with substantial justice." See F.R.Civ.P. 61.*fn2

After careful review, in light of the language of the charge as a whole,*fn3 of the alleged errors concerning the inclusion, and failure to include, language from counsel's requests in the charge, which were stated at the conclusion of the charge,*fn4 we reject the contention that the trial judge committed reversible error. The trial judge advised counsel prior to the charge that the case would be submitted to the jury on the issues of apparent authority, estoppel and ratification in accordance with the principles of the Restatement of the American Law Institute. See, for example, Restatement of Agency (2d), ยงยง 8, 27, 82 and 141. Since these principles were correctly explained in the charge, the trial judge was not required to use the exact language of the plaintiff's requests for charge as long as the charge covered the applicable legal principles.*fn5 Although plaintiff contends strenuously that certain language in the charge was seriously prejudicial even though not objected to at the end of the charge, "it * * * [is] noted that at no time during the [charge] * * * did * * * counsel take exception to any remark made by the trial judge, nor did he make any formal objection to any of the matters he now contends were so prejudicial as to justify the granting of a new trial. If in fact * * * counsel felt aggrieved by the alleged prejudicial comments and conduct, he should have called the matter to the court's attention so as to give the court an opportunity to take corrective action." Faudree v. Iron City Sand & Gravel Company, supra, 315 F.2d at 651-652; cf. Biggs v. Public Service Coordinated Transport, 280 F.2d 311, 314-315 (3rd Cir. 1960).

The judgment of the District Court will be affirmed.


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