Gibson v. Rogers

Decision Date12 October 1937
Citation270 Ky. 159
PartiesGibson et al. v. Rogers et al.
CourtUnited States State Supreme Court — District of Kentucky

1. Appeal and Error. — Where plaintiffs filed motion for rule against defendants to show cause why they should not be punished for contempt for violating injunction, appeal from order discharging rule would lie as against contention that order discharging rule was not appealable.

2. Jury. — Neither party to a contempt proceeding is entitled to have question of contempt submitted to jury in absence of statute to that effect.

3. Contempt. — Where chancellor in contempt proceeding transferred case to common-law court for trial of question of whether defendant had violated order of court, and not for the trial of the question of contempt, verdict of the jury was not binding on the chancellor, but was merely advisory.

4. Contempt. — Chancellor in contempt proceeding, who transfers case to common-law court for trial of question of whether violation of court order has occurred, should exercise independent judgment and determine for himself whether there was a violation of his order.

5. Contempt. — Where chancellor in contempt proceeding transferred case to common-law court for trial of question whether defendant violated order of court, and jury found for defendant, and transcript of testimony heard before the jury was before chancery court when chancellor overruled motion for new trial, court would assume that chancellor exercised independent judgment and reached conclusion that there had been no violation of order.

6. Contempt. — Where chancellor in contempt proceeding submitted question of fact to jury, fact that jury's verdict was not unanimous did not affect validity of the proceeding, since the chancellor's purpose in submitting the question was merely to obtain jury's advice and assistance.

7. Nuisance. — In contempt proceeding arising out of alleged violation of injunction restraining defendants from use of explosives in stone quarry in such a way as would interfere with the comfortable enjoyment of plaintiffs' homes, permitting defendants to show result of test made with seismograph and subsequent reduction in charge of dynamite as bearing on question of vibrations was not error.

8. Injunction. — Reviewing court, in contempt proceeding involving violation of injunction granted with approval of reviewing court, would decide for itself question of violation of injunction.

9. Nuisance. — In contempt proceeding arising out of alleged violation of injunction restraining use of explosives in such manner as to interfere with neighboring homeowners, evidence held sufficient to sustain finding that defendant did not violate injunction during time in question.

Appeal from Jefferson Circuit Court.

THOMAS W. BEALE for appellants.

ALLEN P. DODD, DODD & DODD, A.C. VAN WINKLE and VAN WINKLE & SKAGGS for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

Joseph H. Gibson and others residing in the vicinity brought suit in the Jefferson circuit court, chancery branch, first division, against Ralph Rogers, doing business as the Louisville Crushed Stone Company, to enjoin the operation of his quarry, on the ground that its operation was a nuisance. The court perpetually enjoined Rogers, his agents and servants "from discharging or permitting to be discharged such blasts of dynamite or other explosives in the operation of the quarry owned by the defendant, * * * as would jar the dwelling houses or other buildings of any of the plaintiffs herein to such an extent as would interfere with the comfortable and reasonable enjoyment of their homes or houses; or to cause said houses, or any of them, to vibrate or shake; or to cause the plastering or other coverings of the walls or ceilings in any of said houses to crack or fall or be in any other way damaged; or to cause the foundations of any of said houses to crack or be damaged; or to cause the concrete sidewalks to any of these said houses to crack or be in any way damaged." On appeal the judgment was affirmed. Rogers v. Gibson, 267 Ky. 32, 101 S.W. (2d) 200. On March 27, 1937, Gibson and his coplaintiffs filed in the lower court their motion, supported by affidavits, for a rule against Ralph Rogers, Gilbert C. Brummhoffer, his superintendent, and Ora Brown, his foreman, to show cause why they should not be punished for contempt of court for violating the injunction. The rule was made returnable on March 30th. After hearing a portion of the evidence the chancellor on his own motion transferred the case to the common-law court for trial by jury of the question whether the injunction was violated. After hearing the evidence of both sides the jury, by a vote of nine to three, answered the question in the negative. In due time Gibson and his coplaintiffs filed their motion for a new trial in the common-law court, and the motion was overruled. They then filed in the chancery court the transcript of the testimony heard on the trial of the issue in the common-law court, and moved that court to set aside the verdict of the jury. The motion was overruled and the rule discharged.

On May 5, 1937, Gibson and his coplaintiffs filed in the chancery court their motion, supported by...

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