King v. Miller
| Decision Date | 03 June 1955 |
| Docket Number | No. 3178,3178 |
| Citation | 280 S.W.2d 331 |
| Parties | John KING, Appellant, v. M. C. MILLER et al., Appellees. |
| Court | Texas Court of Appeals |
Wagstaff, Harwell, Alvis & Pope, Roy L. Duke, Abilene, for appellant.
Scarborough, Yates, Scarborough & Black, Jack Bryant, Abilene, for appellees.
Appellees, M. C. Miller and nineteen others, instituted this suit against appellant, John King, for an injunction. Appellees alleged that they were property owners and/or residents of that part of Taylor County lying just east of the city limits of the City of Abilene, Texas, known as T. & P. Lane; that appellant, John King, operated a gin near their homes and that he burns or has burned the burrs and other refuse from said gin in such a manner that the prevailing wind carries smoke onto and into the homes of appellees. Appellees prayed for an injunction restraining appellant from burning cotton burrs and other refuse on the premises of his gin 'unless some equipment be provided to allow such burning in a manner whereby unreasonable amounts of smoke and unburned particles will not be distributed onto the property of appellees.' Appellant answered by special exception, general denial and various other defenses. The case was tried before the court with the aid of a jury. The issues submitted to the jury and the answers thereto are as follows:
'Question No. 1: Do you find from a preponderance of the evidence, if any, that the defendant in the burning of cotton burrs at his gin plant allows smoke to emit from his gin plant in such a manner that it is carried in substantial quantities onto the property of the plaintiffs? Answer yes or no. Answer: Yes.
'If you have answered the foregoing special issue Number One yes, then and in that event only, you will answer the following question:
'Question No. 2: Do you find from a preponderance of the evidence, if any, that the emission of smoke from said gin plant, if you have found that same does emit smoke, constitutes a nuisance as that term is herein defined? Answer 'It is a nuisance' or, 'It is not a nuisance.' Answer: It is a nuisance.
'If you have answered the above and foregoing question number one, yes, and in that event only, then answer the following special issue:
The court entered judgment perpetually enjoining appellant from burning cotton burrs on the premises of his gin located on T. & P. Lane in Taylor County, Texas in the manner in which the appellant is now burning cotton burrs. From this judgment appellant has appealed.
Appellant contends the trial court erred in granting the injunction because appellees failed to plead and prove that they did not have an adequate remedy at law. We do not agree with this contention. Appellees alleged that they did not have an adequate remedy at law and in our opinion, the evidence sustains such allegation. There is evidence that appellees, by instrument dated August 28, 1954, and prior to the filing of their amended petition upon which they went to trial, for a consideration of $500 paid by appellant, released the appellant from all claims for bodily injury, including damages for care and loss of services because of bodily injury, sickness or disease, including death at any time resulting therefrom sustained or alleged to have been sustained, caused or alleged to have been caused by appellant prior to and including September 7, 1953. Appellant urges that in view of the fact that appellees settled their claim for damages that it was thereby conclusively established that they could be reasonably compensated for their loss by reason of the burning of burrs on the gin property and that they consequently had an adequate remedy at law and were not entitled to an injunction. In order for a remedy at law to be adequate it must give to the plaintiff complete, final and equal relief. Ex parte Warfield, 40 Tex.Cr.R. 413, 50 S.W. 933, 24 Tex.Jur. 82; Davis v. Gillen, Tex.Civ.App., 227 S.W.2d 834 (Writ Ref.).
The act of appellant in maintaining the nuisance is a continuing one and constitutes a continuing trespass. If appellees are forced to file suit for damages this would result in a multiplicity of suits.
'Many authorities support the rule that injunction is a proper remedy to restrain repeated or continuing trespasses where the remedy at law is inadequate because of the nature of the injury, or the necessity of a multiplicity of actions to obtain redress.' 32 A.L.R. 465. See also Knox v. Askew, defendant's Special Issue No. One in City National Bank of Dallas v. Folsom, Tex.Civ.App., 247 S.W. 591.
The granting of the injunction rested largely within the discretion of the trial court and unless it is shown that the court abused its discretion, we have no power to disturb the judgment. Lamb v. Kinslow, Tex.Civ.App., 256 S.W.2d 903.
By his fourth point, appellant contends the trial court erred in refusing to submit the following requested special issues to the jury:
'No. One: Do you find from a preponderance of the evidence that the plaintiffs have suffered damages as a result of the burning of burrs at defendant's gin? Answer 'Yes' or 'No.' Answer: _____.
'No. Two: If you have answered defendant's Special Issue No. One in the affirmative, then you will answer this issue, otherwise you need not answer requested Special Issue No. Two.
We find no error in this point. Appellees were not seeking to recover damages but were asking only for an injunction. The question of whether the appellees had an adequate remedy at law was for the court and not the jury. The issues requested were immaterial and not controlling. Therefore, the court, under R.C.P. 279, was not required to give them.
By his second point appellant urges that the trial court erred in not declaring a mistrial when one of appellees mentioned insurance. While the appellee Pennell was being cross examined, by counsel for appellant, the following occurred:
Counsel for appellant immediately objected to the answer and moved the court to discharge the jury and declare a mistrial which the court refused to do but instructed the jury not to consider the question of insurance. We recognize the rule that in negligence cases under some circumstances, the mention of insurance is reversible error but appellees were not seeking any damages in this case. We fail to see how the mere mention of insurance by the witness could have resulted in injury to appellant....
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