Oswell v. Brown
| Decision Date | 21 October 1919 |
| Docket Number | 1 Div. 302 |
| Citation | 17 Ala.App. 193,84 So. 305 |
| Parties | OSWELL v. BROWN. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr. Judge.
Action by L.L. Brown against R.H. Oswell for damages for the negligent destruction of property. From judgment for plaintiff, defendant appeals. Affirmed.
The case made by the pleadings is that plaintiff was a fisherman on the waters of Lizard creek, and had moored at a point on said creek three fish boxes, a fish dock, and a skiff together with about 800 pounds of fish, and that the defendant's servants or agents, acting within the line and scope of their authority, so negligently operated a towboat, the Vindicator, and the E.C. Grace, with its tow that it ran into and demolished the property of the plaintiff and permitted the fish to escape. The defense was that Lizard creek was a navigable stream, and that the property of the plaintiff as moored in said stream constituted an unlawful obstruction, or was so moored as not to be marked or indicated in any manner so as to give notice of its position.
Rickarby & Austill, of Mobile, for appellant.
Inge & Kilborn, of Mobile, for appellee.
Brown (appellee here) brought suit in the court below against appellant, Oswell, for damages to property consisting of fish boxes, docks, and skiff, and to about 800 pounds of fish contained in said fish boxes. The case was tried by a jury, and a verdict and judgment had for plaintiff.
No exceptions were reserved to the rulings of the court upon the trial of this cause, and on this appeal the several assignments of error are based upon the refusal of several special written charges requested by defendant. Among the written charges refused to defendant was the general affirmative charge, and upon the refusal of this charge this appeal must be determined, as it appears from the brief and argument of appellant this is the only assignment of error insisted upon.
Assignments of error other than that relating to the refusal of the affirmative charge to the defendant must be deemed to have been waived, as not being insisted upon; the only statement in the brief and argument of appellant's counsel in this connection being:
"We further believe that the court erred in refusing the several charges requested by the defendant and set out as errors on the record."
Under the uniform rulings of this court and of the Supreme Court this amounted to a...
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