Opinion
July 1, 1927.
APPEAL AND ERROR: Harmless Error — Improper Evidence Excluded 1 by Proper Submission. In an action for damages resulting solely from the "inconvenience and discomfort in the occupancy and enjoyment of property" because of a nuisance, evidence tending to show that the nuisance was unsanitary, and might be injurious to health, becomes harmless when the court submits the issues strictly in accordance with the pleadings.
TRIAL: Reception of Evidence — Waiver of Incompetency. Error may 2 not be predicated on the reception of irrelevant and incompetent testimony relative to the condition of a nuisance at a place remote from the place in controversy when the complainant fails to avail himself of a later indicated willingness on the part of the court to strike such testimony.
LIMITATION OF ACTIONS: Injury to Relative Rights — Nuisance. An 3 action for damages consequent on a nuisance is not an action for injury to "relative rights," and is not, therefore, barred in two years.
TRIAL: Instructions — Failure to Except. Failure to except in 4 the trial court to instructions precludes review on appeal. (See Book of Anno., Vol. 1, Sec. 11495, Anno. 4 et seq.) Headnote 1: 4 C.J. p. 995. Headnote 2: 3 C.J. p. 824. Headnote 3: 29 Cyc. p. 1261. Headnote 4: 3 C.J. p. 919; 38 Cyc. p. 1808.
Appeal from Madison District Court. — J.H. APPLEGATE, Judge.
Action to recover damages for nuisance. Verdict and judgment for plaintiff. Defendant appeals. — Affirmed.
S.A. Hays and J.E. Tidrick, for appellant.
Leo C. Percival and Phil R. Wilkinson, for appellee.
I. Appellee is the owner of, and resides upon, a lot in the northwest corner of a block in the city of Winterset. The residence fronts north on Filmore Street, and adjoins Third Street on the west. Appellant, sometime prior to the commencement of this action, constructed a storm sewer on Third Street, which discharges into an open ditch on Filmore Street at the northwest corner of appellee's lot. The storm sewer is constructed of 24-inch tile. A large number of cesspools and septic tanks are discharged into the storm sewer, and it is claimed by appellee that the contents thereof are discharged into the open ditch on Filmore Street in front of her residence, causing offensive odors, which, particularly in the heated season, destroy the comfort and convenience of her home. This action is against the city, to recover damages therefor.
The petition is in three counts, but one of which was submitted to the jury.
The evidence quite fully sustains the allegations of the petition. Numerous witnesses testified to the character of the discharge from the sewer into the open ditch, and to the presence of offensive and disagreeable odors therefrom. 1. APPEAL AND The court permitted one or more witnesses to ERROR: testify that the conditions described were harmless unsanitary, and might be injurious to the health error: of those residing in the vicinity. Another improper witness was permitted to describe the condition evidence of the ditch at a point remote from appellee's excluded by residence. Appellant complains of the admission proper of this testimony. The petition did not allege submission. that the health of appellee had been injured or impaired. The testimony on this point was received as bearing upon the nature and character of the nuisance complained of. Whether properly received or not, its admission was without prejudice, as the court in its instructions specifically and clearly limited the recovery of damages to the inconvenience and discomfort in the occupancy and enjoyment of the property.
The testimony relative to the condition of the ditch at a point remote from appellee's property should and would 2. TRIAL: have been stricken, had the attention of the reception of court been called thereto in the further evidence: progress of the trial. The court so waiver of indicated, but reserved a ruling until appellee incompe- was given an opportunity to offer further tency. testimony establishing a connection. If appellant desired a ruling on the objections interposed to this testimony, and on the motion to strike, made at the time, a later request should have been made therefor. Gaar, Scott Co. v. Nichols, 115 Iowa 223; Bean v. Bickley, 187 Iowa 689; Hornish v. McConnell, 191 Iowa 308. The error, if any, was waived.
II. The court instructed the jury that appellee was entitled to recover all damages that had arisen within five years immediately preceding the commencement of the action. The giving of this instruction is assigned as error. It is the 3. LIMITATION contention of appellant that the damages OF ACTIONS: complained of are to relative rights, and that, injury to under Subdivision 3, Section 11007, Code of relative 1924, a right of action therefor would be barred rights: in two years. This contention cannot be nuisance. sustained, for two reasons: one, that no exceptions were taken to the instruction, which, because of such failure, became the law of the case; and the other, that the injuries complained of, for which recovery was permitted, are not to relative rights. O'Banion v. DeGarmo, 121 Iowa 139. We need not attempt a comprehensive definition of relative rights, but they include such as may arise out of the relationship of husband and wife, master and servant, guardian and ward, and similar relationships.
Counsel for appellant urge that it was the duty of the court to correctly instruct the jury, and that a failure to do so constitutes reversible error. The court did instruct the jury fully as to the statute of limitations. The 4. TRIAL: error, therefore, if any, was in the instruction instruc- given, and not in a failure to instruct upon a tions: material point or upon some other theory. The failure to failure of appellant to except to the except. instruction given is fatal to its right to have the same reviewed on appeal. Powers v. Iowa Glue Co., 183 Iowa 1082; Fontana v. Fort Dodge, D.M. S.R. Co., 180 Iowa 1183. No other rulings of the court are complained of.
The judgment below is affirmed. — Affirmed.
EVANS, C.J., and FAVILLE, VERMILION, and KINDIG, JJ., concur.