Gibson v. Rogers

• Decision Date: 12 October 1937
• Citation: 270 Ky. 159,109 S.W.2d 402
• Parties: GIBSON et al. v. ROGERS et al.
• Court: Kentucky Court of Appeals

109 S.W.2d 402

270 Ky. 159

GIBSON et al. v. ROGERS et al.

Court of Appeals of Kentucky

October 12, 1937

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by Joseph H. Gibson and others against Ralph Rogers, trading and doing business as the Louisville Crushed Stone Company, and others.On order to show cause why defendants should not be punished for contempt for violation of injunction.Rule discharged, and plaintiff appeals.

Affirmed.

Thomas W. Beale, of Louisville, for appellants.

Allen P. Dodd, Dodd & Dodd, A. C. Van Winkle, and Van Winkle &amp Skaggs, all of Louisville, for appellees.

CLAY Justice.

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 affidavits, for a rule against Gilbert Brummhoffer, the superintendent, to show cause why he should not be punished for contempt for violating the injunction.Upon the calling of the rule on May 13th, the chancellor, after permitting the plaintiffs to be cross-examined concerning the blast, discharged the rule.From the orders discharging the two rules this appeal is prosecuted.

At the outset we are met by the contention that the orders discharging the rules are not appealable.There is language to this effect, Brown v. Brown,96 Ky. 505, 29 S.W 318, 16 Ky.Law Rep. 610, but a careful review of the question leads inevitably to the conclusion that the language was inadvertently used.The case is not one of criminal contempt, but of civil contempt, consisting of the failure to do something ordered by the court for the benefit of the opposing party.Livingston County v. Crossland,229 Ky. 733, 17 S.W.2d 1018;Hall v. Hall,246 Ky. 12, 54 S.W.2d 391.It would be a rare doctrine if a party could obtain an order from a court commanding or prohibiting the doing of a thing, and could go no further if the court should fail to compel obedience to the order.For that reason we are committed in our more recent opinions to the rule that a party grieved by an order in a civil contempt proceeding may prosecute an appeal.Thus in Roper v. Roper,242 Ky. 658, 47...