Bennett v. Bagwell & Stewart, Inc., 20936
Decision Date | 08 September 1960 |
Docket Number | No. 20936,20936 |
Citation | 116 S.E.2d 288,216 Ga. 290 |
Parties | Hubert BENNETT et al. v. BAGWELL & STEWART, INC., et al. |
Court | Georgia Supreme Court |
Syllabus by the Court
1. On conflict of evidence as to whether the defendants were performing acts in violation of the court's injunctive decree, the verdict was authorized.
2. Questions of fact are always referable to a jury, within a proper exercise of the trial court's discretion, even in a case involving a citation for contempt; and, on a reference to a jury, the question of whether or not the defendants are continuing to perform certain prohibited acts in violation of the decree is one of fact, not of law, and is not ground for a new trial.
3. Viewed as a whole, the charge is not subject to the criticism urged in special ground 2 of the amended motion for new trial.
4. A charge to ghe jury imposing a heavier or different burden than that required by the law of the case is hurtful and requires a new trial.
The plaintiffs, Hubert Bennett, Hubert Nix, Charles T. Waite, Jr., and Herbert Castleberry, instituted an action against Bagwell & Stewart, Incorporated, and Leland Bagwell, the president and principal owner of the corporation, and Robert Gibson, the foreman of the plant, to enjoin the named defendants from so operating their rendering plant situated in Forsyth County as to create foul and obnoxious odors that could be smelled in the plaintiffs' homes. The superior court of that county granted a permanent injunction framed in the following language: 'It is thereupon considered, ordered, adjudged and decreed that the defendants, Bagwell & Stewart, Inc., Leland Bagwell and Robert Gibson, their servants, agents and employees, be and they are hereby permanently and perpetually enjoined and restrained from operating the plant known as North Georgia Rendering Plant sometimes known and referred to as North Georgia Rendering Company in Forsyth County, Georgia, and described in plaintiffs' petition in a manner so as to create foul and offensive odors that can be smelled in petitioners' homes.'
From a judgment overrulng the motion for new trial the defendants excepted and this court affirmed the judgment of the trial court in Bagwell & Stewart, Inc. v. Gennett, 214 Ga. 780, 107 S.E.2d 824. When the injunction was entered in the case, the trial judge granted a supersedeas which was dissolved on March 23, 1959. The defendants continued to operate the plant after the supersedeas was dissolved. The plaintiffs on June 18, 1959 filed the present action praying for no relief except that the defendants be adjudged in contempt for disobeying the order and punished accordingly.
On the trial the plaintiffs testified that the odors had been continually created by the operation of the plant in such a manner as to be smelled in their homes; that these odors were pungent and so offensive as to nauseate them at meal times and to interfere with their rest at night. They were corroborated by a number of witnesses who lived in the vicinity; some resided nearer and others farther from the plant than the plaintiffs. These witnesses admitted that the odors were not as frequently smelled as during the preceding year but stated that they were of the same foul description and were at times equally as pungent and nauseating.
Leland Bagwell testified that he had continued to operate the plant every day since the injunction was granted. He testified as to having spent large sums of money trying to control the odors emitted from the plant, and at one point stated that he had succeeded in so controlling the odors as to prevent them from entering the plaintiffs' homes. He modified this statement as the examination progressed and admitted that to effectively control the odors from the plant was a dream of the future that could not be presently realized. He stated that only occasionally did he believe the odors could be smelled farther than the road running by the plant which was about fifty yards distant. He also testified that the odors could not have penetrated the plaintiffs' homes, but qualified that evidence by the frank admission that the distance odors could be smelled from the plant depended upon the atmospheric conditions; that in damp weather they could be smelled farther than in dry weather. He swore that the odors of the plant were not offensive to him, probably because he had built up an immunity to them. Bagwell told of the foul odors caused by the chicken houses in the vicinity, a certain egg dump, and a burial place for animals situated on the mountain side. He gave as his opinion that these odors could on occasion be smelled in the valley where the plaintiffs' homes were located, though he did not undertake to swear that the burial ground and egg dump were actually smelled in the valley. This evidence was corroborated to an extent by the speculative opinions of other witnesses who stated that these odors could in their opinion reach the valley and be smelled in the plaintiffs' homes. Bagwell testified further as follows:
The defendants produced a number of witnesses, some of whom resided closer and others farther from the plant than the plaintiffs and these witnesses testified uniformly that the odors were not offensive to them in their homes and gave as their opinion that they could not be smelled in the plaintiffs' homes. The defendants submitted the evidence of expert witnesses who testified that the odors of the plant could not in their opinion have penetrated that plaintiffs' homes, and that the plant was operated so as to meet all reasonable standards employed by rendering plants in controlling odors.
The plaintiffs in rebuttal denied that foul odors from the dead animals on the mountain stank or could be smelled in their homes; they admitted that odors from chicken houses in the community could on occasion be smelled in their homes. The plaintiffs testified that the odors from the rendering plant were entirely different from those of the chicken houses or the other odors; that they were more pungent, foul and nauseating and could be readily distinquished from other odors. In this they were corroborated by several witnesses.
Robert Gibson, a defendant called for cross-examination, testified that he worked for and under the direction of Mr. Bagwell as plant manager and that the plant had operated continuously since the injunction under the same management and in the same type of operation.
The jury found for the defendants.
The exception is to the judgment overruling the plaintiffs' amended motion for new trial.
Wheeler, robinson, Norton & Thompson, Gainesville, for plaintiff in error.
Henry B. Troutman, William H. Schroder, T. M. Smith, Jr., Atlanta, Leon Boling, Cumming, for defendant in error.
1. The only general ground of the motion for new trial insisted on here is that the verdict was without evidence to support it. The discussion of special ground of the amended motion demonstrates that the controlling issue of the case was whether the defendant in violation of the injunction's restraint operated the plant in such a manner as to create foul and offensive odors that could be smelled in the plaintiffs' homes. The evidence adduced on the trial was in obvious conflict as to this issue, and there was sufficient evidence to support the verdict.
2. The plaintiffs in error vigorously urge as their first special ground for a new trial that the trial court erred in submitting this case to the jury as there is no constitutional right to a trial by jury on the question presented under the Constitution Art. VI, Section XVI; Code § 2-5101 ( ) and under Code s24-105 ( ).
In any event the plaintiffs in error assert that the question was not properly presented to the jury in that the jury was permitted to pass on the general question of contempt which is a question of law, rather than the narrow factual question of whether the plant still emitted offensive odors. We disagree with these contentions for the reasons and with the limitations hereafter set forth.
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