Here the judge, having properly charged the jury, was asked to rule, off the cuff and in the jury's presence, on a belated oral request for an additional instruction which posed, as we have seen, a difficult issue of New York law. His refusal to honor such a request would not require us to reverse even if a refusal to give the same charge on a timely written request would. Turner Construction Co. v. Houlihan, 240 F.2d 435, 439-440 (1 Cir., 1957); see Metropolitan Life Ins. Co. v. Talbot, 205 F.2d 529, 533 (5 Cir., 1953); Seeraty v. Philadelphia Coca-Cola Bottling Co., 198 F.2d 264, 265 (3 Cir., 1952). We are thus not required to consider whether the latter condition is met, although the writer would affirm on the further ground that at the very least the requested instruction required qualification in important respects, and that failure to give a properly instructed jury even a seasonably requested additional charge is not reversible error unless such charge, in addition to being material and not repetitious, is correct and complete.
The record, however, reveals that none of the appellants made any specific request for such an instruction. That being the case, they may not now question the court's failure to so instruct. Louisville Nashville R. Co. v. Rochelle, 6 Cir., 1958, 252 F.2d 730, 738; Comins v. Scrivener, 10 Cir., 1954, 214 F.2d 810, 815, 46 A.L.R.2d 1; Witt v. Merrill, 4 Cir., 1954, 210 F.2d 132, 134; Metropolitan Life Ins. Co. v. Talbot, 5 Cir., 1953, 205 F.2d 529, 533; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir., 1952, 198 F.2d 264, 265. We have, however, considered in detail the instructions given and find them to have been understandable, adequate and correct.
" Counsel failed to advise the court in what way the charge failed correctly to state the law and, consequently, his exception presents nothing for review. Rule 51, Fed. Rules of Civ.Proc.; Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L.Ed. 645; Allen v. Nelson Dodd Produce Co., 10 Cir., 207 F.2d 296; Metropolitan Life Ins. Co. v. Talbot, 5 Cir., 205 F.2d 529. Nevertheless, we have studied the court's charge on this doctrine.
The clear intent and meaning of the rule requires that in ordinary circumstances one complaining of the refusal of the court to give a requested instruction must show that he submitted to the court the desired instruction in writing. Having failed to submit any requested instruction in writing, and having failed to except to the instructions given, no question concerning the requested instruction is open to review on appeal. Dallas Railway Terminal Co. v. Sullivan, 5 Cir., 108 F.2d 581; Home Insurance Company of New York v. Tydal Co., 5 Cir., 152 F.2d 309; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir., 198 F.2d 264; Metropolitan Life Insurance Co. v. Talbot, 5 Cir., 205 F.2d 529; Witt v. Merrill, 4 Cir., 210 F.2d 132; Cf. Baker v. Western Casualty Surety Co., 164 Kan. 376, 190 P.2d 850; Cf. Lewis v. Texas Employers' Insurance Association, Tex.Civ.App., 197 S.W.2d 187. The judgment is Affirmed.