Harris v. Sutton

• Citation: 148 S.E. 403,168 Ga. 565
• Decision Date: 22 May 1929
• Docket Number: 6926.
• Parties: HARRIS et al. v. SUTTON et al.
• Court: Georgia Supreme Court

148 S.E. 403

168 Ga. 565

HARRIS et al. v. SUTTON et al.

No. 6926.

Supreme Court of Georgia

May 22, 1929

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by Aleck Sutton and others against Annie Harris and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Geo. L Bell, Jr., of Atlanta, for plaintiffs in error.

Jas. L Key and Jas. L. Mayson, both of Atlanta, for defendants in error.

BECK P.J.

This was a suit for injunction to restrain the establishment and maintenance and operation of an undertaking establishment in a residential section, where there is also located a large public school. Upon the hearing evidence was introduced by both the plaintiffs and the defendants. At the conclusion of the evidence the judge granted an interlocutory injunction and the defendants excepted. Under the pleadings and the evidence this case falls within the ruling in Morrison v. Slappey, 153 Ga. 724, 113 S.E. 82, where the grant of an interlocutory injunction under similar facts, upon exceptions taken thereto, was affirmed by this court.

Judgment affirmed. All the Justices concur.

RUSSELL C.J. (concurring specially).

I am of the opinion that a mortuary or undertaking establishment cannot properly be held to be a nuisance per se, if conducted in a proper manner under such rules as prevent its affecting either the health or convenience of the neighborhood. This court has not held to the contrary of the opinion just expressed, and in Morrison v. Slappey, supra, we expressly declined to rule that an undertaking establishment in a residential section is a nuisance per se. Consequently I am of the opinion that the evidence in this case touching the question as to whether there was substantial injury to the petitioners within the meaning of section 4457 of the Code of 1910, defining nuisance, would of itself perhaps not have authorized the grant of an injunction. Alleged nuisances should not be enjoined merely to gratify fastidious taste. However, in view of the testimony of the superintendent of the public schools of Atlanta as to the deleterious effect of the presence of an undertaking establishment upon the particular nearby school, and in view of the importance of public education to the citizens of the entire commonwealth it seems to me that the trial judge properly granted the injunction prayed for. Where the consequences of a nuisance are irreparable in damages, and...