Frost v. Grizzly Bluff Creamery Co.

McFarland, J. This is an action to recover damages for a nuisance. The jury returned a verdict in the sum of four hundred dollars, for which amount judgment was rendered for plaintiff. Defendant (a corporation) appeals from the judgment, and brings up the judgment-roll, and a bill of exceptions which merely shows the instructions given and refused, and the exceptions thereto. Nothing else appears. A reversal is asked solely upon alleged errors in giving and refusing instructions.

In such a case a judgment will rarely be reversed. All intendments are in favor of sustaining it. If the averments in the complaint in the case at bar are true, and we must assume them to be true, the nuisance was [527]a very aggravated one, and the amount of damages allowed was exceedingly small. There was no demurrer to the complaint. Its averments were denied without any point taken as to their legal sufficiency; no objection appears to any evidence offered by respondent. It does not appear what evidence was or was not introduced; and we cannot tell upon what theory the case was tried. Under these circumstances the alleged error of the court below in refusing certain instructions asked by appellant cannot be considered as a ground for reversal. (Nelson v. Lemmon, 10 Cal. 49; White v. Abernathy, 3 Cal. 426; Carpenter v. Ewing, 76 Cal. 487, and cases there cited.) The same may be said of instructions given, unless they “ would have been erroneous under any conceivable state of facts.” (Carpenter v. Ewing, 76 Cal. 487.)

Moreover, the main alleged errors relied upon by appellant occur in the instructions given by the court of its owh motion; and to these there are no sufficient exceptions. The exceptions are in these words: “We except to the instructions the court gave for the plaintiff, to such as he refused to give for defendant, to such as he modified, and such as the court gave of its own motion.” It would not be contended that all of the instructions given by the court of its own motion are erroneous; and the parts thereof considered erroneous should have been specifically pointed out, in the absence of a stipulation by respective counsel waiving all but a general exception. (Hicks v. Coleman, 25 Cal. 122; 85 Am. Dec. 103; Sill v. Reese, 47 Cal. 348; Robinson v. Western Pacific R. R. Co., 48 Cal. 425; Rogers v. Mahoney, 62 Cal. 613.) In the latter case, the court refers to the other authorities, and thus states the rule: “ The whole charge cannot be excepted to generally. The exceptions should be sufficiently specific to call the attention of the court to the alleged error.”