Holman v. Athens Empire Laundry Co

• Decision Date: 04 September 1919
• Docket Number: (No. 1058.)
• Citation: 149 Ga. 345,100 S.E. 207
• Parties: HOLMAN. v. ATHENS EMPIRE LAUNDRY CO.
• Court: Georgia Supreme Court

149 Ga. 345

100 S.E. 207

HOLMAN.

v.ATHENS EMPIRE LAUNDRY CO.

(No. 1058.)

Supreme Court of Georgia.

Sept. 4, 1919.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Nuisance.]

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Nuisance Per Se.]

Error from Superior Court, Clarke County; A. J. Cobb, Judge.

Suit for damages, injunction, etc., by W. S. Holman against the Athens Empire Laundry Company. Directed verdict for defendant, motion for new trial denied, and plaintiff brings error. Reversed.

W. S. Holman is the owner of a nine-story brick building located on the corner of Clayton and Lumpkin streets in the city of Athens, known as the Holman Building. The building was completed in January, 1914. The exterior construction of the building is of tapestry brick. The ground floor of the building is occupied by a cafe and lunch room, ice cream and candy factory, cigar factory, and a gas company. The other floors are designed for office purposes. Immediately across Lumpkin street from the Holman Building, and on the corner of Clayton and Lumpkin streets, is the two-story brick building of the Athens Empire Laundry Company. This building has been occupied by a steam laundry for about 18 years. In the building is a 35 horse power steam boiler, used in the operation of the laundry. The smokestack on the west side of the laundry is about 140 feet away from the Holman building. The top of the stack, which is about 60 feet in height, is on a level with the sixth floor of the Holman building.

In July, 1917, W. S. Holman filed an equitable petition in the superior court of Clarke county, in which he alleged that until recently the laundry company had used coke for the purpose of firing its boiler; that coke did not give off any considerable quantity of smoke, and could be used for fuel without financial loss or inconvenience to the laundry company, and is obtainable in the necessary quantities in the local market. He also alleged that the laundry company, at the time of the filing of the suit, was using soft coal for fuel and emitting "a very black, dense smoke, which smoke is a nuisance to the portion of the city affected (the business section), but is especially Injurious to petitioner." He charged that the smoke entered the windows of the building and blackened the walls and casing of the building itself, to the special injury of the building, as well as to the inconvenience and discomfort of the occupants thereof. His tenants were compelled to keep the windows down on the west and north fronts of his building, during the hot weather of the summer, in order "to exclude the immense volumes of smoke blowing therein" from the stack of the laundry building. A number of the plaintiff's tenants and especially the tenant operating a millinery and hairdressing establishment, have complained and threatened to leave his building unless the smoke nuisance was abated. The defendant would continue to use soft coal, and the damage from the nuisance created thereby would be irreparable, a multiplicity of suits would result, and the intervention of a court of equity was necessary to the adequate protection of the plaintiff's rights. The prayers of the petition were for judgment for the damage sustained by the plaintiff up to the filing of the suit, for injunction restraining the defendant from operating its plant "with such coal as throws out a black, dense smoke, " for general relief, and for process.

The laundry company answered, and admitted the location of the respective buildings and of its smokestack, substantially as set out in the petition. It also admitted that at the time of the filing of the suit it was using soft coal, and that it had in the past, and for some years, used coke as a fuel; but it averred that coke could be obtained in the Athens market only from a tenant (a gas company) of the plaintiff, that recently it had been unable to obtain coke except at prohibitive prices, that no more smoke was emitted from its boiler than was absolutely necessary in the proper operation of its plant, that its plant was operated by a skilled fireman and engineer and in a proper manner, and that its use of soft coal did not work appreciable hurt or damage to the plaintiff. It denied substantial injury and damage to the plaintiff's building, denied substantial injury to the plaintiff's tenants, denied that the injury, if any, to the plaintiff's building, the plaintiff's tenants, and the property of the latter was irreparable in damages, but, on the contrary, averred that the plaintiff had an adequate and complete remedy at law.

On the trial the plaintiff, by amendment, waived "his right to damages up to the time his suit was filed." The evidence on behalf of the plaintiff tended to show injury to the building as alleged in the petition, extreme inconvenience and discomfort to the plaintiff's tenants, and complaints and threats bythe tenants to vacate the building. Whenever the wind was blowing from the laundry in the direction of the plaintiff's building, douse volumes of black smoke from the laundry's stack were blown directly into the building. Prior to the summer of 1917, at which time the defendant abandoned the use of coke as a fuel and commenced to use soft coal, some smoke came from the laundry's stack into the plaintiff's building. This smoke was, however, of a "yellowish color, " was not particularly offensive to the plaintiff's tenants, and did not substantially damage the walls of the building. Since the defendant commenced to use soft coal as a fuel, the dense smoke from the defendant's stack was blown directly against the plaintiff's building whenever the wind was from the direction of the laundry, in such quantity as to necessitate the closing of the windows on both the west and north sides of the plaintiff's building. During the hot weather of the summer it was necessary to keep the windows of the building open. The tenants complained, not only on the ground of inconvenience and discomfort, but on the ground that the soot carried into the building and deposited upon the books, papers, furniture, and merchandise discolored and permanently injured the same. Even in winter the dense volume of smoke from the defendant's stack was blown in around the windows and openings of the building. Some of the plaintiff's tenants demanded offices on the opposite side of the building and away from the laundry. The plaintiff was compelled to make these changes in order to hold his tenants, to his financial loss. Coke, of suitable quality and in sufficient quantities, and at reasonable prices, could be had and used by the defendant. There was also some evidence to the effect that the volume of smoke thrown off by soft coal could be gradually reduced and controlled by the use of modern appliances.

The defendant's evidence was to the effect that its laundry and the plaintiff's building were located in the business section of the city; that its laundry had been in operation several years before the plaintiff erected his building in close proximity thereto; that it had used coke as a fuel as long as it could reasonably obtain it in necessary quantities and quality; that in the summer of 1917 coke could only be obtained in Athens from a tenant of the plaintiff, and then at prohibitive prices. Its evidence also tended to show that the plaintiff's building, by reason of its height, caused downward eddies in the air currents; that smoke, sand, trash, and other particles were blown against the building and carried down in the air currents and thrown into the Holman Building and into the neighboring buildings, including the laundry building, to the inconvenience and injury of the defendant; that several other smokestacks in the immediate locality emitted large volumes of black smoke, and that the smoke from these stacks was also blown against and into the plaintiff's building, and carried down into the defendant's building. The witnesses for the defendant gave evidence that the boiler was fired by competent and careful persons, and that every reasonable and practicable effort had been made and every practicable appliance had been used to reduce and control the smoke. It also appeared that soft coal was used as a fuel in the furnace of the Holman Building, and that dense black smoke was emitted from the plaintiff's stack, and that whenever the atmosphere was damp and humid the smoke was inclined to settle into the defendant's laundry. It further appeared that there was no state statute or city ordinance regulating the emission of smoke in the city of Athens.

At the conclusion of the evidence, briefly outlined above, and after argument of counsel, the court instructed the jury at some length, finally directing a verdict for the defendant. The plaintiff filed a motion for a new trial, and to the judgment overruling the motion he excepted.

W. M. Smith and John J. & R. M. Strickland, all of Athens, for plaintiff in error.

Erwin, Rucker & Nix, of Athens, for defendant in error.

GEORGE, J. (after stating the facts as above). [1] 1. As a general rule a public nuisance gives no right of action to any individual, but must be abated by process instituted in the name of the state. Civil Code, § 4454. If a public nuisance causes special damage to a private citizen, he has a right of action therefor. Civil Code, § 4455; Trust Co. of Georgia v. Ray, 125 Ga. 485, 487, 54 S. E. 145; Savannah, Florida & Western Railway Co. v. Gill, 118 Ga. 737, 45 S. E. 623; Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472, 67 S. E. 1126(3). The fact that the plaintiff waived his claim to damages alleged to have been suffered prior to the filing of the suit is of no special consequence. Tate v. Mull, 147 Ga. 195, 197, 93 S. E. 212. If the alleged nuisance be regarded as a public one, the evidence in the case is sufficient to authorize the jury to find special injury and damage to the plaintiff,...