Bennett v. Bagwell & Stewart, Inc., 20936

Decision Date08 September 1960
Docket NumberNo. 20936,20936
Citation116 S.E.2d 288,216 Ga. 290
PartiesHubert BENNETT et al. v. BAGWELL & STEWART, INC., et al.
CourtGeorgia 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: 'I haven't smelled the plant out on the road myself since March 19th. Away back a long time ago when we really had trouble I never smelled the plant as far away as the junction of Highway 141 and 306 at Hammond's Store. Since March 19th of this year [1960] I have not smelled it as far away as Herbert Castleberry's house [2 miles from the plant]. One Sunday night since March 19th we did smell it a little bit right in there near or below Charlie Waites' one night, that is the meat cooking odor. That was the Sunday night we came over from Canton to Cumming and smelled one pig parlor, six chicken houses and the rendering plant and I think the pig parlor was the worst of those. One Sunday night since March 19th we did smell it as far away as Mr. Nix's [1 mile from the plant near Waites' home] and Charlie Waites' [1 mile from plant].'

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.

QUILLIAN, Justice.

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 (Right of trial by jury) and under Code s24-105 (Power of court to punish for contempt).

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.

If the question of the scope or meaning of the injunctive order of...

To continue reading

Request your trial
6 cases
  • BITT INTL. CO., INC. v. Fletcher
    • United States
    • Georgia Court of Appeals
    • February 3, 2003
    ...of discretion exists for the judge to deny a jury trial on the foreclosure of a crop lien. See generally Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 295(2), 116 S.E.2d 288 (1960). 2. BITT contends that the trial court erred by granting to Fletcher a lien for items furnished by Joe Flet......
  • Louisville & N. R. Co. v. Young, s. 41448
    • United States
    • Georgia Court of Appeals
    • November 5, 1965
    ...S.E. 508; Hunnicutt v. Perot, 100 Ga. 312(1), 27 S.E. 787; Thomason v. Moore, 139 Ga. 341(4), 77 S.E. 155; Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 297(4), 116 S.E.2d 288; Johnston v. Sheppard, 22 Ga.App. 206, 95 S.E. 743; Poythress v. Hagan Grocery Co., 31 Ga.App. 611(1), 121 S.E. ......
  • Peacock v. Spivey
    • United States
    • Georgia Court of Appeals
    • March 22, 2006
    ...a party should be held in civil contempt for violation of a previously issued injunction or order. See Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290, 295-296(2), 116 S.E.2d 288 (1960); Hortman v. Ga. Bd. of Dental Examiners, 214 Ga. 560, 563(1), 105 S.E.2d 732 (1958). Compare OCGA § 15-1-......
  • Louisville & N.R. Co. v. Lunsford
    • United States
    • Georgia Supreme Court
    • September 8, 1960
  • Request a trial to view additional results
6 books & journal articles
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2018 edition
    • Invalid date
    ...761 (2002)] (but see "Right to Counsel" discussion under Case Citations below). D. No right to jury [Bennett v. Bagwell & Stewart, Inc.,216 Ga. 290, 116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 G......
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2017 edition
    • Invalid date
    ...761 (2002)] (but see "Right to Counsel" discussion under Case Citations below). D. No right to jury [Bennett v. Bagwell & Stewart, Inc.,216 Ga. 290, 116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 G......
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2016 edition
    • Invalid date
    ...761 (2002)] (but see "Right to Counsel" discussion under Case Citations below). D. No right to jury [Bennett v. Bagwell & Stewart, Inc.,216 Ga. 290, 116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 G......
  • 9 Contempt
    • United States
    • State Bar of Georgia Georgia Benchbook 2015 edition
    • Invalid date
    ...761 (2002)] (but see "Right to Counsel" discussion under Case Citations below). D. No right to jury [Bennett v. Bagwell & Stewart, Inc.,216 Ga. 290, 116 SE2d 288 (1980)]. E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 G......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT