Brown v. Kentfield

California Supreme Court Jul 1, 1875 No. No. 3863Published

Before: Crockett

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Holding. The court held that any error in overruling a demurrer to a special defense was immaterial because the facts were admissible under general denials, and that a general exception to a jury charge is insufficient for appellate review. Furthermore, the court declined to review refused instructions in the absence of evidence, as error must be affirmatively shown.

Issues

Whether the overruling of a demurrer to a special defense constituted reversible error when the facts were admissible under general denials.
Whether a general exception to a jury charge as a whole is sufficient for appellate review.
Whether refused instructions can be reviewed on appeal in the absence of the evidence presented at trial.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“If the court erred in overruling the demurrer to the special defense set up in the answer, the error was immaterial, inasmuch as all the matters set forth therein were admissible in evidence, if at all, under the denials of the answer.”

“We have repeatedly held that a general exception of this kind to the charge or instructions given, will not be noticed here.”

“Error will not be presumed, but must be shown affirmatively.”

Synopsis

Ebbob which is Immatebial .— If the answer contains a special defense which consists of an averment of facts which, if admissible in evidence, can be proved under the denials contained in the answer, an order of the Court overruling a demurrer to the special defense, if erroneously made, constitutes an immaterial error.

Exception to Chaege of Coubt.—A general exception to the charge of the Court to the jury which does not specify when it was taken, nor any particular portion of the charge, but goes to the charge as a whole, will not be noticed by the Supreme Court.

Bill of Exceptions.— The question not decided whether a statement signed by the judge at the bottom of his charge to the jury, that “ the foregoing instructions were given by the court, to which the plaintiff excepted,” is a bill of exceptions.

Obstbtjcting a Navigable Stbeam.—In an action to abate, as a nuisance, a boom across a navigable river, made to intercept saw-logs floated down in time of high water, and for damages, it is incumbent on the plaintiff to prove that the obstruction was unreasonable.

Befüsal of Instbhctions to Juey.—If none of the evidence is found in the record, the court will not grant a new trial on the ground that certain instructions to the jury were refused, for the court may have refused to give them because there was an entire lack of evidence on which to base them.

By the Court, Crockett, J.: 1. If the court erred in overruling the demurrer to the special defense set up in the answer, the error was immaterial, inasmuch as all the matters set forth therein were admissible in evidence, if at all, under the denials of the answer. The pleadings admit that Elk River was a navigable stream; and the gravamen of the action is that the defendants improperly and unreasonably obstructed it, and thereby flowed back the water over the plaintiffs land, whereby he suffered a special damage. Under the denials of the answer, it was incumbent on the plaintiff to prove that the obstruction was improper and unreasonable, and that he suffered a special damage thereby. It was, of course, competent for the defendants to rebut proof of that character, by showing that the obstruction was not unreasonable, and that it resulted from a proper and lawful exercise by the defendants of their right to float saw-logs down the stream. The special defense was merely a statement of facts relied upon by the defendants as showing that the obstruction was not unreasonable; and if these facts constitute a valid defense, they could have been proved under the denials of the answer, and need not have been specially averred. The error, therefore, if it be one, was immaterial.

2. There was no exception which we can notice, by the plaintiff, to the general charge of the court to the jury, or to the instructions given on the request of the defendants. At the close of the charge and over the signature of the judge, is a statement in these words: “The foregoing instructions were given by the court, to which the plaintiff excepted,” and there is a similar memorandum at the foot of the instructions given on the request of the defendants. If this can be deemed a bill of exceptions for any purpose, [132]the exception was too general. It does not state that the exception was taken when the ruling was made, nor even before the verdict; nor does it specify that the exception was to each or any particular portion of the charge; but went to the charge as a whole. We have repeatedly held that a general exception of this kind to the charge or instructions given, will not be noticed here. (Payne and Dewey v. Treadwell, 16 Cal. 220; Hicks v. Coleman, 25 Id. 146; McCreery v. Everding, 44 Id. 249.)

3. Certain instructions requested by the plaintiff were refused; and though no formal exception to this ruling appears in the record, we think the omission is supplied by the stipulation of counsel. But none of the evidence is before us; and in its absence we cannot say but that the instructions were properly refused because of an entire lack of evidence on which to base them. Error will not be presumed, but must be shown affirmatively.

Brown v. Kentfield

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