City of Atlanta v. Blackman Health Resort, Inc.
| Decision Date | 20 May 1922 |
| Docket Number | 2805. |
| Parties | CITY OF ATLANTA ET AL. v. BLACKMAN HEALTH RESORT, INC. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court erred in refusing to permit Dr. Blackman, a witness for the plaintiff, to answer a question propounded to him on cross-examination by counsel for the defendants, seeking to elicit the fact that the plaintiff had not filed, with its last application for a permit to erect its building for a health resort, any statement showing what class of persons were to be admitted to this institution, as required by section 1430 of the City Code of Atlanta, which section is applicable, under the issues in this case.
The court erred in failing to charge the jury that, under the issues made by the pleadings in this case, plaintiff was not entitled to a mandamus unless plaintiff showed that it had complied with the ordinances of the city of Atlanta set out in sections 729 and 1430 of the City Code.
The court erred in failing to instruct the jury that, if it appeared from the evidence that the plaintiff had failed to file with his application a statement of the class of persons he intended to treat in the proposed institution, as required by section 1430 of the Code of Atlanta, the plaintiff would not be entitled to demand a permit for the erection of said institution.
The court, whether requested or not, should give the jury appropriate instructions on every substantial issue in the case presented by the pleadings and evidence.
To entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced.
The sixth, eighth, and ninth grounds of the motion for new trial do not set forth the facts under which the rulings complained of were made; and this court is unable therefore to say whether any error was committed by the court in the rulings therein complained of.
The court is not shown to have erred in refusing to permit counsel for defendants to read to the jury certain letters and petition, which had been previously admitted in evidence the court ruling that these documents ought to have been read when introduced, and that they could be read to the jury in the argument, and it not appearing that they were not so read, nor that counsel was deprived of the right to fully argue the case by having to read these papers while arguing the case to the jury.
The court did not err in charging the jury that, if the city council refused to permit the plaintiff to build its sanitarium because the members of the city council did not individually want a building of that sort in their own immediate neighborhood, and, for this reason alone, would not grant a permit, such reason was not a good reason in law to refuse the permit and that the action of council, based on such reason alone, was arbitrary.
The court did not err in charging the jury that the city council had no right to refuse the permit for the erection of the plaintiff's building, unless the erection would prove in some way injurious to the public health, public safety, or public morals, or public convenience or public comfort, under the previous decision of this court in this case.
The court erred in giving to the jury an instruction not involved under the pleadings or evidence.
The judgment of the mayor and city council of Atlanta refusing to grant the plaintiff a permit to erect this building upon its previous application therefor, after a full hearing, was binding and conclusive upon the plaintiff, unless appealed from, or directly brought before the court for review; and for this reason the writ of mandamus should have been refused.
Additional Syllabus by Editorial Staff.
Where general words followed particular and specific words in an ordinance, the former must be confined to things of the same kind.
The decision of the Supreme Court when a mandamus proceeding to compel the granting of a building permit was before it, on demurrer, as to grounds which would justify refusal of the permit, was the law of the case on a subsequent appeal from a judgment for the petitioner.
Where an instruction on an issue not involved under the pleadings or evidence might mislead the jury or prejudice them against the losing party, a new trial will be granted.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Mandamus by the Blackman Health Resort, Incorporated, against the City of Atlanta and others. Judgment for petitioner, and defendants bring error. Reversed.
See also, 151 Ga. 507, 107 S.E. 525, 17 A.L.R. 516.
For the allegations of the plaintiff's petition for mandamus, see Blackman Health Resort v. Atlanta, 151 Ga. 507, 107 S.E. 525, 17 A.L.R. 516, when this case was here on demurrer. In their answer the defendants denied that the petitioner was incorporated for the purpose of building a tourist and health resort, but for the purpose of building and operating a sanitarium for the treatment of diseases and the care of sick persons. In its three former applications for a permit the plaintiff used the word "Sanitarium" to designate one of the purposes for which its building was to be used. This word was written in the last application, but stricken therefrom as an afterthought. Dr. Blackman, at the time of filing the application, informed the building inspector that patients were to be received in the building for treatment. Said application did not state what classes of persons were to be received therein, or what diseases were to be treated.
The defendants denied that the petition for mandamus set forth fully the objections urged against the grant of this permit but alleged that among these objections was one which set up that the applicant had not complied with section 1430 of the Code of the city of Atlanta, which requires applications to state what classes of persons are to be treated in same. The defendants in their answer further alleged that another objection to the grant of such permit was urged before the city council, and that was that said application was considered most carefully and at great length by the mayor and general council on several occasions. It was heard in detail by the mayor on one occasion. It was heard for several hours on two occasions before the committee on hospitals, to which it was referred. It was argued three times in the general council. Every opportunity was given to the applicant and to the objectors to present their reasons for and against this permit. They allege that this permit was refused upon the merits and in the exercise of their sound judgment and discretion, and that the matter became res judicata when the plaintiff's last and fourth application was heard.
The defendants' counsel admitted that the plaintiff, with his application for a permit, filed with the building inspector the plans and specifications of the proposed building, which were approved by the latter. The plaintiff introduced voluminous evidence tending to show that his health resort would produuce none of the evil consequences set out in the objections urged by neighboring property owners, but would benefit property in the vicinity. The defendants introduced evidence tending to show that this health resort would produce the objectionable consequences alleged in the various objections to the grant of this permit. It was shown by the uncontradicted evidence that the plaintiff had made three previous applications for this permit, and that the plaintiff was fully heard before the mayor and general council on the second and third of these applications, both sides appearing by counsel, introducing evidence, and being fully heard, and that on each of these occasions the city council decided against the applicant.
A verdict was rendered in favor of the plaintiff. The defendants moved for a new trial, which was overruled, and error is assigned on this ruling.
James L. Mayson, W. A. Fuller, and J. M. Wood, all of Atlanta, for plaintiffs in error.
Colquitt & Conyers, of Atlanta, for defendant in error.
HINES, J. (after stating the facts as above).
1. We deal first with the fourth, tenth, eleventh, and twelfth grounds of the amendment to the defendants' motion for new trial. In the fourth ground it is alleged that the court erred in refusing to permit Dr. Blackman, witness for the plaintiff, to answer a question propounded to him on cross-examination by counsel for the defendants seeking to elicit the fact that the plaintiff had not filed, with its last application for a permit to erect its building for a health resort, any statement showing what class of persons were to be admitted to this institution. The tenth ground complains that the court erred in charging the jury that the ordinance or law involved in this case was section 729 of the City Code of Atlanta, the court reading this section to the jury. The error assigned is that, under the issues in the case, section 1430 of the City Code of Atlanta was involved, and that the court should have so instructed the jury. The eleventh ground asserts that the court erred in failing to charge the jury that, under the issues made by the pleadings in this case, the plaintiff was not entitled to a mandamus unless plaintiff showed that it had complied with the ordinances of the city of Atlanta set out in these sections of the City Code.
In the twelfth ground it is alleged that the court erred in failing to charge the jury that, if it appeared from the evidence that plaintiff had failed to file with his application a statement of the class of persons he intended to treat in the proposed institution, he would not be entitled to demand a permit for the erection of said institution. This involves the question whether section 1430 applies to applications for permits to build...
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