Public Service Co. of N.C., Inc. v. City of Shelby
| Decision Date | 30 June 1960 |
| Docket Number | No. 163,163 |
| Citation | 115 S.E.2d 12,252 N.C. 816 |
| Parties | PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC. v. CITY OF SHELBY. |
| Court | North Carolina Supreme Court |
Fletcher & Lake, Raleigh, for plaintiff, appellant.
A. A. Powell, Shelby, and Robinson, Jones & Hewson, Charlotte, for defendant, appellee.
The parties in their briefs discuss the ultimate issues involved in the action. But these questions have not been adjudicated by the court below and do not properly arise on this appeal. From a careful consideration of the record and the order appealed from it is determined that the sole question now before us is whether or not the court erred in dismissing and vacating the temporary restraining order.
'* * * (i)n order to justify continuing the writ until the final hearing, ordinarily it must be made to appear (1) that there is probable cause the plaintiff will be able to establish the asserted right, and (2) that there is reasonable apprehension of irreparable loss unless the temporary order of injunction remains in force, or that in the opinion of the court such injunctive relief appears to be reasonably necessary to protect the plaintiff's rights until the controversy can be determined.' Edmonds v. Hall, 236 N.C. 153, 156, 72 S.E.2d 221, 223.
When these rules are applied to the situation here presented, we find no error in the dismissal of the temporary order of injunction. We do not think that plaintiff has alleged facts that tend to show, or has otherwise shown, that there is reasonable apprehension of irreparable loss pending the determination of the action or that a temporary restraining order is reasonably necessary to protect plaintiff's rights during litigation. Besides, it ordinarily lies in the sound discretion of the court to determine whether or not a temporary injunction will be dissolved on hearing pleadings and affidavits only. It is the duty of the court to consider the inconvenience and damage to the defendant as well as the benefit that will accrue to the plaintiff in continuing the writ. Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319. The rights asserted by the plaintiff are controverted by the defendant.
43 C.J.S. Injunctions § 97, pp. 601-603.
In the main the injury, damage and impairment of rights of which plaintiff complains are such as will be completely remedied and restored by a favorable final judgment. Such damage by an unfavorable final judgment will be rendered damnum absque injuria. We refer to such damages as are occasioned by invasion of territorial franchise, fixing of discriminatory rates, possible increase of rates for rural users of plaintiff's services, further invasions by defendant and other municipal corporations, duty to serve less desirable customers while the more profitable users are served by defendant and other municipal corporations, and possible loss of attractiveness for investors of capital. These are matters more naturally to be considered on the final hearing.
The only immediate damage that will result to plaintiff by dissolution of the temporary restraining order is possible loss of profits. If profits are lost pending final termination of the action, the amount thereof will be ascertainable and recoverable and therefore such damages are not irreparable. Furthermore, it appears from the record that Fiber has made no contract with plaintiff for service, and plaintiff does not allege otherwise. It does not affirmatively appear that Fiber would use plaintiff's services even if denied the right to purchase natural gas from defendant. It might decide to make use of artificial gas, electricity or other fuel or energy. So it does not clearly appear that there would be a loss of profits to plaintiff during litigation.
We cannot say that the court below abused its discretion in dissolving the temporary restraining order. The order appealed from should be affirmed.
Plaintiff bases its action for relief on two grounds: (1) that defendant entered into a contract ...
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