Opinion
6 Div. 13.
October 28, 1920.
Appeal from Circuit Court, Cullman County; O. Kyle, Judge.
William E. James, of Cullman, for appellant.
The first and second counts sufficiently state the cause of action. 29 Cyc. 1271; 86 Ala. 515, 6 So. 47; section 5198, Code 1907. Count 3 was good. 175 Ala. 148, 57 So. 453. The counts for wanton negligence were sufficient. 185 Ala. 641, 64 So. 547. The nuisance here complained of was a private nuisance. 36 Ala. 381; 161 Ala. 389, 49 So. 849, 23 L.R.A. (N.S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750; 72 Ala. 277, 47 Am. Rep. 412; 123 Ala. 298, 26 So. 294; 202 Ala. 82, 79 So. 476, L.R.A. 1918F, 1020.
In a case of this kind the damages include damages to health as well as injury to property. 169 Ala. 623, 53 So. 996; 175 Ala. 148, 57 So. 453; 3 Ala. App. 385, 58 So. 86. The court erred in not permitting evidence of the loud cursing and hollering. 135 Ala. 498, 33 So. 544.
A. A. Griffith, of Cullman, for appellee.
Counsel for appellant has openly disregarded the rule requiring proper insistence on errors, and has therefore waived and abandoned them. 160 Ala. 636, 49 So. 343; 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252; 7 Ala. App. 314, 61 So. 484. The court was not in error in its action on the pleading. 175 Ala. 4, 57 So. 857; 162 Ala. 665, 50 So. 300. The court properly instructed the jury as to the recovery of damages. 202 Ala. 3, 79 So. 299; 161 Ala. 278, 49 So. 851.
Appellant, plaintiff in the trial court, stated his cause of action in ten counts. Appellee demurred to each count severally and separately, assigning 64 grounds of demurrer. To the amended counts there were demurrers assigning as many and more grounds. If any ground was well taken against the counts, the ruling in each case was correct. The brief for appellant states some general propositions, making no specific application to the rulings assigned for error. We have not found that the rulings in the trial court, giving shape to the complaint finally submitted to the jury, prejudiced any right of plaintiff, or offended against any law stated in the brief. Likewise in respect to the rulings on the sufficiency of the pleas; and, in any case, this court cannot be put in search of error not specifically assigned and argued in brief. Ala. S. W. Co. v. Sells, 168 Ala. 547, 52 So. 921. The ruling here, therefore, is that no error has been shown in the matter of the pleadings in this cause.
This case in every essential respect was like unto the case shown in Crawford v. Union Cotton Oil Co., 202 Ala. 3, 79 So. 299, in which it was held by this court that damages as for permanent injury to realty, alleged to have been caused by the maintenance and operation of a cotton oil mill, were not recoverable, where the injury results, not as an effect of the permanent structure, but from the operations carried on therein, which are capable of modification or abandonment. The trial court instructed the jury according to the rule of that case, and this court is not now disposed to hold differently.
Evidence as to damages suffered was properly limited to the 12 months next before the commencement of the suit. Damages claimed were so limited by the complaint.
The court is of opinion that the complaint makes no claim for damages on account of the holloing or cursing of defendant's servants, and for that reason, if no other, evidence to prove such annoyances to plaintiff was properly excluded.
Our best judgment is that the brief for appellant points out no reversible error, and that the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.