Griffith v. Newman, 21446

• Court: Georgia Supreme Court
• Writing for the Court: QUILLIAN
• Citation: Griffith v. Newman, 123 S.E.2d 723, 217 Ga. 533 (Ga. 1962)
• Decision Date: 04 January 1962
• Docket Number: No. 21446,21446
• Parties: , 2 A.L.R.3d 956 D. L. GRIFFITH et al. v. James W. NEWMAN, Jr., et al.

Page 723

123 S.E.2d 723

217 Ga. 533, 2 A.L.R.3d 956

D. L. GRIFFITH et al. v. James W. NEWMAN, Jr., et al.

No. 21446.

Supreme Court of Georgia.

Jan. 4, 1962.

Rehearing Denied Jan. 22, 1962.

Syllabus by the Court

1. A petition that sets forth a valid cause of action on any theory is not subject to a general demurrer.

2. Where evidence is admitted without objection, although it could have been rejected as not conforming to the allegations as laid, if sufficient to authorize the relief sought and relating to the cause of action declared on, it will be sufficient to uphold a verdict.

3. While a requested charge, legal in substance, correct in form and adapted to the issues of the case, must be given in the language of the request, if the assignment of error is that the trial judge refused to give requested instructions in charge to the jury, and 'the request was not covered by the general charge,' when it appears from the record that the requested instructions were covered by the general charge in almost the precise terms requested, the assignment of error is without merit.

4. Where a charge is correct and adjusted to the issue of the case, an exception assigning the same as error is without merit.

The plaintiffs, residents and neighbors in the City of Austell, Georgia, filed a suit on March 29, 1961, in the Cobb Superior Court against the defendants D. L. Griffith and his wife, Myrl, seeking to restrain and enjoin the construction and operation of a broiler house. Their petition alleged: that the defendants own land partially inside and partly outside the city limits of Austell, on which the defendants are constructing a broiler-house building, which will accommodate some 12,000 to 13,000 chickens; that the broiler house, which is located partly within and partly without the city in Cobb County, is to be constructed in a highly congested residential area comprised of homes ranging in value from $15,000 to $25,000; that the defendants do not have a permit from the City of Austell to construct such broiler house, and are also proceeding illegally contrary to the zoning laws of Cobb County; that, unless equity intervenes, the plaintiffs will suffer irreparable damages to their property by depreciation of value; and that the desirability of residing in the area will be so diminished by the nuisance created that the petitioners will be required to dispose of their property and remove from the vicinity; that the operation of the broiler house would create a sanitary hazard; that the stench and the attraction of insects and vermin would affect the health and welfare of the plaintiffs and their children; that there will be unnecessary noise and traffic as a result of the operation of such business.

It was further alleged: that the plaintiffs made timely request that the defendants refrain from the construction; and that the operation of a broiler house in a residential area constitutes a nuisance. The petition also showed that the dimensions of the broiler house were approximately 400 feet in length and 32 feet in width.

The defendants filed their answers and general demurrers. On April 6, 1961, the trial judge entered an order overruling the general demurrers. Thereafter, during the regular term of Cobb Superior Court, the case came on to be tried before a jury.

The plaintiffs introduced evidence showing that the broiler house would be located in a primarily residential area and within 400 to 1,000 feet of several houses, and that there were some 20 to 25 children in the immediate vicinity. Witnesses for the plaintiffs also testified that a broiler house would be a breeding place for rodents and various insect pests; that it would give off very offensive odors which would permeate the air for a distance of 1/4 to over 1/2 mile, and there would be dust which might cause allergies; that chickens are often the reservoirs of communicable diseases; that in connection with the operation of the chicken business there would be litter, and traffic and noise resulting from the hauling trucks. The witnesses testified from their knowledged of the chicken industry and gave facts upon which they predicated their conclusions.

The witnesses for the defendant testified that a properly run broiler house would have very few insects or rodents; that dust and odor could be kept to a minimum; that with modern antibiotics disease was controlled, and that there was scant possibility of infections diseases being spread.

There was conflict as to whether it would be profitable to operate a broiler business and at the same time substantially reduce or obviate the objectionable features. There was evidence by both the plaintiffs and the defendants as to the manner in which the operation of the broiler house would necessarily have to be conducted. The plaintiffs showed by the testimony of a witness who conducted extensive operations in the broiler business and by two doctors that the probability of disease, the concentration of vermin and swarms of insects, the foul, persistent, and far-reaching odors and dust particles, the noise and congestion of trucks hauling the waste products, feed, and broilers were all an inherent part of the poultry operation. The defendants did not attempt to prove that the most modern practices would entirely eliminate the objectionable features, but insists that through proper control and maintenance the most objectionable aspects would be relatively insignificant and would not constitute a nuisance.

There was no evidence presented as to the Cobb County zoning laws, but the plaintiffs' witnesses did testify that it was necessary to obtain a building permit in the City of Austell and that the defendants had attempted to comply with this requirement.

There was some conflict as to the promptness of the action taken by the plaintiffs, the plaintiffs testifying that they made complaint soon after ascertaining the purpose for which the building was to be used, while the defendants showed that the building had been under construction approximately one month (February 13 to March 8) before they had any notice of opposition to the project.

The plaintiffs introduced evidence as to the depreciation in the value of their property.

At the conclusion of the evidence the defendants filed their written requests to charge, certain portions of which were refused. The jury found for the plaintiffs, and a judgment was entered granting the permanent injunction. Within the time provided by law, the defendants filed their motion for new trial on the general grounds and later amended the motion by adding three special grounds, which assigned as error a failure to charge as requested, and two parts of the charge as given. The trial judge denied the motion for new trial.

The defendants bring to this court their bill of exceptions complaining of the order overruling their general demurrers, and of the denial of their motion for new trial.

Wm. P. Holley, Marietta, for plaintiff in error.

J. R. Cullens, Cartersville, George T. Bagby, Dallas, for defendant in error.

QUILLIAN, Justice.

1. The sufficiency of the petition to set forth a cause for injunctive relief to restrain the defendant from erecting a large broiler house near the plaintiffs' homes in a densely populated residential area, and upon the completion of the building from using the same in raising a great number of chickens must be decided according to the principles pronounced by this court in factually similar cases. A principle applied in numerous cases is that a lawful business may, by reason of its location in a residential area, cause hurt, inconvenience, and damage to those residing nearby in the vicinity and become a nuisance per accidens (a nuisance by reason of circumstances and surroundings), against which an injunction will be granted. Coker v. Birge, 9 Ga. 425, 428; Ponder v. Quitman Ginnery, 122 Ga. 29, 49 S.E. 746; Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207, 6 A.L.R. 1564; Benton v. Pittard, 197 Ga. 843, 31 S.E.2d 6, 153 A.L.R. 968; Poultryland Inc. v. Anderson, 200 Ga. 549, 556, 37 S.E.2d 785; Miller v. Coleman, 213 Ga. 125, 128, 97 S.E.2d 313. However, when the petition in a case of this...