Ballard v. Waites

Decision Date15 September 1942
Docket Number14231.
Citation21 S.E.2d 848,194 Ga. 427
PartiesBALLARD v. WAITES.
CourtGeorgia Supreme Court

The plaintiff as the owner of a peach orchard, partly adjoining two tracts of the defendant planted in cotton, sued to enjoin him from dusting this cotton on the adjacent land with calcium arsenate on the ground that such dusting had defoliated and destroyed or injured a large number of peach trees of the value of $15,000, and if continued would cause further damage; and that the defendant was insolvent. The petition also prayed a judgment for past damages. It was alleged that the trees had been injured because of the application of the calcium arsenate, in a 'careless and negligent manner * * * and because of its having been applied in such quantities and at such height above the cotton plants as that the natural movements of breezes, winds, and drift carried large amounts into * * * said orchard.' The answer denied all essential allegations of the petition. At the interlocutory hearing no demurrer was before the judge. The sworn pleadings and additional evidence on both sides were conflicting as to whether any appreciable damage had been or would be done; as to what injurious effects had resulted or would result from the use of calcium arsenate and as to whether the defendant's method of its application by a one-man hand duster had injured or would avoid injury to the peach trees. In dissolving a restraining order and refusing an interlocutory injunction, the judge found that: 'The evidence in this case being very conflicting, the court is of the opinion that the evidence is equally strong on each side, and that the burden rests upon the plaintiff to prove his case by a preponderance of evidence; and that not being done, the court hereby dissolves' the restraining order, and denies the injunction, on the condition that the defendant 'is not to spray his cotton when the wind is blowing strong enough to carry the poisonous dust in such appreciable quantities as will materially damage the peach orchard of the plaintiff.' While the plaintiff by brief concedes that 'the evidence may not be such as to demand a [finding] in favor of the plaintiff,' it is contended that the judge should have granted the injunction, because the case was one 'of such gravity as to justify restraining the defendant until final trial'; that the judge 'under a wrong conception of his duty,' did not exercise his discretion because of a 'belief that in a case of conflicting evidence he must refuse relief'; that he 'did not exercise any discretion at all'; and that 'the case should be sent back in order that he may determine, not whether the evidence is conflicting, but whether a case is made which entitled plaintiff to have further damage stopped until a jury can settle the issues of fact.'

W. H. Key, of Monticello, and M. F. Adams, of Eatonton, for plaintiff in error.

S. H. Baynes, of Monticello, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. In dealing with interlocutory injunctions the Code declares 'The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case. The power shall be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.' § 55-108. If the chancellor in refusing an injunction bases his refusal on the fact that the evidence was in conflict, and it appears that the evidence was in fact in conflict, or if the chancellor, in a case where the evidence was in fact in conflict, enters a mere general judgment granting or refusing an injunction, this court will not in either case reverse the judgment, entered in the exercise of such discretion. Polite v. Williams, 147 Ga. 820, 95 S.E. 674; Bennett v. Dickey & Martin, 159 Ga. 267, 125 S.E. 455; Thompson v. Mutual Investment Corporation, 188 Ga. 476, 477, 4 S.E.2d 44; Byrd v. Wells, 191 Ga. 265(5), 267, 11 S.E. 887; Jones v. Lanier Development Co., 188 Ga. 141, 145, 2 S.E.2d...

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30 cases
  • Southern Bell Tel. & Tel. Co. v. Georgia Public Service Commission
    • United States
    • Georgia Supreme Court
    • 15 Julio 1948
    ...it will be set aside on that ground, and, in an appropriate case, the case remanded for further consideration. See Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848; Washington National Insurance Co. v. Mayor and of Savannah, 196 Ga. 126, 26 S.E.2d 359; Colclough v. Bank of Penfield et al., 150......
  • American Liberty Ins. Co. v. Sanders
    • United States
    • Georgia Court of Appeals
    • 16 Mayo 1969
    ...Hill v. Wadley Southern Ry. Co., 128 Ga. 705(7), 57 S.E. 795; Marion County v. McCorkle, 187 Ga. 312(2), 200 S.E. 285; Ballard v. Waites, 194 Ga. 427, 429, 21 S.E.2d 848; Spires v. Wright, 147 Ga. 633(2), 95 S.E. 232; Giles v. Rawlings, 148 Ga. 575(2), 97 S.E. 521; High Shoals Mfg. Co. v. P......
  • Loomis v. State
    • United States
    • Georgia Court of Appeals
    • 3 Diciembre 1948
    ... ... McCorkle, 187 Ga. 312, 313, 314(2), 200 S.E. 285; ... Hill v. Wadley Southern R. Co., 128 Ga. 705(7), 57 ... S.E. 795; Ballard v. Waites, 194 Ga. 427, 429(2), 21 ... S.E.2d 848; Stribbling v. Georgia Ry. & Power Co., 139 Ga ... 676(3), 78 S.E. 42; Spires v. Wright, 147 ... ...
  • Loomis v. State, 32046.
    • United States
    • Georgia Court of Appeals
    • 3 Diciembre 1948
    ...v. McCorkle, 187 Ga. 312, 313, 314(2), 200 S.E. 285; Hill v. Wadley Southern R. Co., 128 Ga. 705 (7), 57 S.E. 795; Ballard v. Waites, 194 Ga. 427, 429(2), 21 S.E.2d 848; Stribbling v. Georgia Ry. & Power Co., 139 Ga. 676 (3), 78 S.E. 42; Spires v. Wright, 147 Ga. 633(2), 95 S.E. 232; Fears ......
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1 books & journal articles
  • Variations on a Theme: Georgia's Evolving Test for Interlocutory Injunctive Relief
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 28-1, August 2022
    • Invalid date
    ...[26] Id. at 130, 46 S.E.2d at 73. [27] See, e.g., Steenhuis v. Todd's Constr. Co., 227 Ga. 836, 183 S.E.2d 354 (1971); Ballard v. Waites, 194 Ga. 427, 21 S.E.2d 848 (1942); Jones v. Lanier Dev. Co., 188 Ga. 141, 2 S.E.2d 943 (1939). [28] See, e.g., Bernocchi v. Forcucci, 279 Ga. 460, 461, 6......

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