Opinion
21446.
SUBMITTED NOVEMBER 13, 1961.
DECIDED JANUARY 4, 1962. REHEARING DENIED JANUARY 22, 1962.
Injunction. Cobb Superior Court. Before Judge Henderson.
William P. Holley, for plaintiffs in error.
J. R. Cullens, George T. Bagby, contra.
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 issues of the case, an exception assigning the same as error is without merit.
SUBMITTED NOVEMBER 13, 1961 — DECIDED JANUARY 4, 1962 — REHEARING DENIED JANUARY 22, 1962.
The plaintiffs, residents and neighbors in the City of Austell, Georgia, filed a suit on March 29, 1961, in Cobb Superior Court against 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 knowledge 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 infectious 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 insist 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.
1. The sufficiency of the petition to set forth a cause for injunctive relief to restrain the defendants 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 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 ( 54 AD 347); 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 ALR 1564); Benton v. Pittard, 197 Ga. 843 ( 31 S.E.2d 6, 153 ALR 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 kind undertakes to allege a cause to enjoin a business before it is begun, more than a mere apprehension of injury to the plaintiffs or damage to their property must be made to appear. "A court of equity will only exercise the power to restrain the erection of a building and the maintenance therein after construction of a lawful business, on the ground that the operation of such business will constitute a nuisance, where it is made to appear with reasonable certainty that such operation necessarily constitutes a nuisance, the consequences of which will be irreparable in damages. Code § 72-204." Powell v. Garmany, 208 Ga. 550, 551 (1) ( 67 S.E.2d 781); Elder v. City of Winder, 201 Ga. 511 (1) ( 40 S.E.2d 659); Bacon v. Walker, 77 Ga. 336; Barton v. Rogers, 166 Ga. 802 ( 144 S.E. 248); Thomoson v. Sammon, 174 Ga. 751 ( 164 S.E. 45).
This is accomplished where the petition, not by way of mere conclusions but averments of fact, shows with reasonable certainty that the business will actually work hurt, inconvenience, and damage to the plaintiffs and will constitute a nuisance per accidens. Carroll v. Lovett, 213 Ga. 854, 855 ( 102 S.E.2d 704).
In the case sub judice, as in the case of Powell v. Garmany, 208 Ga. 550, supra, and similar cases to which reference has been made, the petition alleged the nature of the proposed business against which injunction is prayed, its proximity to the petitioners' homes, its location in a residential area, that it will attract flies and rats to the vicinity, pollute the air, create an unsanitary and unhealthy condition, increase the hazard of traffic and devaluate the plaintiffs' property. But like the petitions in the cases cited, it fails to show the manner in which the business necessarily must be conducted in order to accomplish its purpose, and facts from which it appears with reasonable certainty that the operation of the business, in this instance the broiler house for use in the raising of large numbers of chickens, in whatever manner carried on, will work hurt, inconvenience and damage as set out in the petition.
The petition in the present case gave the size of the broiler house and its capacity to accommodate chickens, and comes near but does not quite span the chasm between showing an anticipated injury and one that was reasonably certain to be imposed upon the plaintiffs. It falls just short of alleging that the erection of the broiler house and its proposed use is a nuisance per accidens against which an injunction should be granted.
The petition, however, contained an allegation that the defendants have not secured a permit from Cobb County to construct a commercial chicken house or broiler house in accordance with the Cobb County zoning laws. That averment was sufficient as against a general demurrer to allege that the broiler house was being erected contrary to the zoning laws of Cobb County (Ga. L. 1943, pp. 902-908, as amended by Ga. L. 1949, pp. 1499-1505, Ga. L. 1953, Jan.-Feb. Sess., pp. 2788-2790 and Ga. L. 1953, Nov.-Dec. Sess., pp. 3016-3019); ( Reed v. White, 207 Ga. 623, 63 S.E.2d 597; Wicks v. Community Loan c. Corp., 189 Ga. 620, 7 S.E.2d 385; U.S. Fidelity c. Co. v. Corbett, 35 Ga. App. 606, 134 S.E. 336; Bales v. Wright, 59 Ga. App. 191, 200 S.E. 192; Ragland v. Simpson, 96 Ga. App. 405, 100 S.E.2d 135), which is a public law of the State and need not be set out in the pleadings. Gainesville Midland Ry. v. Vandiver, 141 Ga. 350 ( 80 S.E. 997); Donaldson v. Great A. P. Tea Co., 186 Ga. 870, 874 ( 199 S.E. 213, 128 ALR 456); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 ( 58 S.E.2d 559).
Though the plaintiffs did not allege that they lived in the same zoning district of the county, the petition showed the close proximity of the broiler house to their homes and, under the holding of Enzor v. Askew, 191 Ga. 576 (1) ( 13 S.E.2d 374), sufficiently set forth their right to complain of the violation of the zoning law. It was not, in this factual situation, necessary to allege that special damage would accrue to the plaintiffs. Snow v. Johnston, 197 Ga. 146 (2) ( 28 S.E.2d 270); Graham v. Phinizy, 204 Ga. 638 (2) ( 51 S.E.2d 451); White v. Griggs, 210 Ga. 364, 366 ( 80 S.E.2d 163).
2. The defendants (plaintiffs in error here) insist upon the general grounds that the verdict is without evidence to support it. No proof was offered to support the allegation that the broiler house was being constructed contrary to the Cobb County zoning laws. Thus, the allegation that rendered the petition not subject to general demurrer was never proved. However, evidence was admitted without objection that supported the plaintiffs' contention that the broiler house could not be used to raise chickens in the normal and usual manner so as to be profitable to the defendants without creating obnoxious odors certain to permeate the plaintiffs' homes, cause them to be plagued by rats and flies, endanger the health of their families, and result in their property depreciating. This evidence was disputed by the defendants, but not refuted to the extent of demanding a verdict in their favor. It did no more than make an issue of fact for the jury. Had the petition been subject to general demurrer and the demurrer erroneously overruled, all subsequent proceedings would have been nugatory and the petition could not have been thereafter amended. The plaintiffs' evidence that made out a case for them was subject to the objection that it was not authorized by the pleadings; but since no objection was offered, the familiar rule well stated in Mathis v. Holcomb, 215 Ga. 488, 490 ( 111 S.E.2d 50), must be applied. "Where evidence is admitted without objection, although it could have been rejected as not conforming to the allegations as laid, if it relates to the cause of action declared on it will be sufficient to uphold a verdict. In such cases our courts have repeatedly held that a party waives his objections to the pleadings by allowing such evidence to go to the jury without objection; the reason for this just rule in such a case evidently being that, had objection been made, the party tendering such evidence might have amended his pleadings so as to conform thereto. One of the principal functions of amendments is to conserve this right." (Headnote 2).
There was sufficient evidence to support the verdict, and the trial judge did not err in overruling the general grounds of the motion for new trial.
3. Ground 1 of the amended motion for new trial complains that the trial judge erred in refusing to give in charge to the jury a requested instruction. While this court holds that a requested charge must be given in the language in which the request is submitted ( Randall v. State, 210 Ga. 435 (1), 80 S.E.2d 695; Vaughan v. Vaughan, 212 Ga. 485 (1), 93 S.E.2d 743), the assignment of error here is that "the request was not covered by the general charge." An examination of the general charge disclosed that the request was covered by the instructions given the jury and in substantially the language requested.
4. Grounds 2 and 3 of the amended motion for new trial complain of charges given the jury that were correct and precisely adjusted to the issues in the case. The grounds are without merit.
Judgment affirmed. All the Justices concur.