Gordy v. Armstrong , 190 Ga. 670 ( 1940 )

1. In the instant suit to enjoin operation of a "drive-in" lunch and soft-drink stand in such manner as to make of it a nuisance with respect to the plaintiff, who owned and occupied a near-by residence, the judge, considering the case on interlocutory hearing, erred, under the pleadings and the evidence, in restraining the defendant altogether from "shouting through megaphones on said parking-lot from eleven o'clock at night throughout the remainder of said night," and from "permitting or allowing on said premises by his employees or patrons after midnight any honking of horns, shouting, or other noises which may be heard in plaintiff's home;" there being no allegation in the petition that any of the noises so made were unnecessary or excessive in the proper conduct of the defendant's business.

2. It was also error to enjoin the defendant from operating a described incinerator "at any hour of the night," and from operating it "at any time so as to discharge smoke upon or against the home of plaintiff."

3. The court erred in enjoining the defendant from "allowing his patrons to park within fifty feet of plaintiff's residence from midnight on through the remainder of the night, when it is possible for said patrons to park and be served on the remaining portion of the parking lot."

(a) The court should have dealt with specific acts, so far as the pleadings and the evidence might have authorized, without reference to the portion of the defendant's lot on which his patrons should be permitted to park and be served.

(b) In view of the rulings stated above, it is unnecessary to deal with other questions presented by the assignments of error.

No. 13210. JULY 13, 1940. REHEARING DENIED JULY 24, 1940. The exceptions are to the grant of an injunction on interlocutory hearing. The case came to this court on the amended petition, the answer, and the evidence. There was no ruling on demurrer.

Miss Fanchon Armstrong filed petition against Frank Gordy, who operates in the City of Atlanta a drive-in lunch and soft-drink stand, called The Varsity. She prayed, "that said business as it is being operated by said defendant be enjoined as a nuisance, and that petitioner have such other and further relief as this court may deem proper." She alleged: The plaintiff is the owner of a tract of land situated on the north side of North Avenue in the City of Atlanta, which tract is 46 feet wide and 200 feet deep, and on which is situated a dwelling-house in which the plaintiff resides. The defendant owns or leases a tract on the north side of North Avenue which lies immediately east of the property of the plaintiff, and which has a frontage on North Avenue of some 200 feet and extends back north the entire block to the next street running parallel with North Avenue. On the east side of his lot the defendant has erected a substantial building from which sandwiches and soft drinks are served. A strip of about 175 feet on the west portion of the defendant's lot, being the portion next to the plaintiff's lot, is vacant, except that the defendant has erected thereon tents or awnings under which automobiles may be parked. Thus the defendant operates a "drive-in" sandwich and drink service to which persons occupying automobiles are invited to resort for the purpose of being served sandwiches and soft drinks.

It was further alleged: (10) It is the custom of the defendant to have men with megaphones who go to all parts of the lot yelling the numbers which they have given the respective cars, for the purpose of attracting negro waiters to come to such cars, which yelling is audible in the house of petitioner and proceeds at all hours of the night from 8 o'clock in the evening to 2 o'clock in the morning. (11) People operating automobiles come to defendant's lot in great numbers, especially from 9 o'clock in the evening until midnight. Such people engage in blowing their horns to attract waiters, and in the loud playing of automobile radios, and in drinking, carousing, and loud talking. (12) Petitioner has made no objection to the carrying on of defendant's business until midnight, although it has been impossible for petitioner and her sister to sleep, on account of such noise. Large numbers of the patrons who frequent the parking lot from 12 o'clock on until 2 or 2:30 o'clock in the morning are usually under the influence of intoxicating liquors, and drive down across the lot to the fence adjoining petitioner's home, where they engage in loud talking and in other disturbing conduct which prevents petitioner from sleeping and interferes with the peaceable and quiet enjoyment of her home. (13) Although cars frequenting defendant's lot after midnight are not as numerous as before said time, and could easily be parked on the eastern portion of the lot, which is removed from the house of petitioner and which would be nearest to the building of the defendant, nevertheless the defendant makes no attempt to prevent the few cars which come into the lot in the early hours of the morning from driving down immediately adjacent to the home of petitioner, where they engage in loud and boisterous conduct, frequently keeping petitioner and her sister awake until 3 o'clock in the morning. (14) On numerous occasions it has been necessary for petitioner to call the police of the City of Atlanta and have them come and quiet the occupants of the cars adjoining her property, who after being so quieted shortly thereafter left the premises. (15) Many of the patrons of defendant's parking lot not only park against the fence described, but engage in the pastime of throwing empty whisky bottles on the yard of petitioner, which bottles sometimes travel across the lot, landing against the fence on the west side of it, thereby making a loud noise. (16) The defendant has also erected a large incinerator in his building on the east side of his lot, in which he and his agents burn paper napkins, paper plates, pasteboard pie-plates, and bread and meat scraps, which burning is usually begun by the defendant around 1 o'clock in the morning, and the flue of his incinerator, which is about 30 feet high, with the prevailing winds, blows heavy smoke with disagreeable odors into the apartment of petitioner and upon her premises, causing her annoyance and at times making it necessary for her to leave her room in order to obtain air. The odor from such smoke is offensive and sickening. (17) The operation of the incinerator is entirely unnecessary, as garbage from the premises could be removed by the sanitary department of the City of Atlanta. (18) The operation of such incinerator as alleged, being unnecessary, constitutes a nuisance. (19) By reason of the above acts of the defendant, petitioner has been unable to rent the upstairs apartment of her home, and can not enjoy peace and quiet in the lower apartment, and frequently is unable to sleep, because of said noise, until 3 o'clock in the morning, which seriously affects her. (20) She has no adequate remedy at law. (21) The manner of the defendant's operation of his place of business "constitutes the same as a nuisance as it is operated."

The defendant's answer alleged that the block on the north side of North Avenue where his place of business is located was zoned for business purposes, and that there are only two residences located thereon, the other portions thereof being occupied by various stated commercial enterprises. As to the use of megaphones, the answer alleged: "Defendant denies the allegations contained in paragraph 10 of said petition as stated. Further answering said allegations, the defendant says that he does from time to time have two of his employees use megaphones on said premises. That the manner of using said megaphones is that one of the men is stationed just outside the building on the east side of said lot with a megaphone. The defendant maintains signs on said premises, some being printed and others being neon, reading ``Don't blow your horn; turn on your lights for service.' When a patron . . turns on the automobile lights, if the defendant's waiter who is serving said car does not see the lights promptly, one of the defendant's employees with the megaphone turns his megaphone in the direction of such waiter and calls the waiter's number. In this way the defendant operates said premises with less noise than would be occasioned if the megaphones were not used and the patrons . . blew their horns to attract the waiter. The other employee who uses a megaphone walks over various parts of the lot, and requests any customers making any noise not to do so, and from time to time calls the number of waiters in the manner aforesaid. The defendant says that from many years experience in operating said eating place and another eating place in Athens, Georgia, he can state as a fact that the use of said megaphone in the manner aforesaid enables him to operate his place of business much more quietly than could be done by permitting his customers to blow the horns on their automobiles. The defendant further says that the noise made by the use of said megaphones is not excessive and can not be heard for a great distance, and that such noise as is made thereby is an ordinary and necessary noise in the conduct of such place of business." As to the blowing of horns and operation of automobile radios, the answer alleged that "occasionally some of his patrons blow horns on their automobiles, and that when they do so an employee of the defendant immediately calls the attention of such patron to the signs, requesting them not to blow their horns but to blink their lights, and such blowing of horns then ceases. Defendant further says that occasionally one of his patrons will turn on a radio in an automobile, and that an employee of the defendant immediately has such patron turn the radio off; but that when such radios are turned on before the defendant and his employee have time to stop the same, that such radios do not make an excessive noise.

"The defendant says that he does not permit drinking or carousing or loud talking on said premises; . . that while occasionally some patron may take a drink on said premises without the knowledge of the defendant or of defendant's employees, if any of the defendant's patrons should take a drink on said premises and should become boisterous or engaged in loud talking, that the defendant's employees have instructions to request such persons to leave said premises. Furthermore, the defendant says that on several occasions persons have come on said premises in an intoxicated condition, and the defendant and his employees have refused to serve such persons but have required such persons to leave said premises immediately. Furthermore, the defendant says that he will not in the future permit loud talking, loud noises, or drinking to take place on his premises. . . The defendant denies the allegations contained in paragraph 13. . . Further answering said allegations, the defendant says that as a general thing the cars frequenting his place of business after midnight are not as numerous as before that time, but occasionally quite a number of cars do come on said place of business . . after midnight. The defendant says that he encourages his patrons who come after midnight to park on the easterly side of his lot, but that it is impossible at all times to accommodate all of them on the easterly side and to require all of them to park on said side. The defendant says that the patrons who come on said lot are not loud and boisterous, and do not make sufficient noise to prevent a person of ordinary sensibilities from sleeping in the petitioner's house while such patrons are on the defendant's premises." The answer denied that the incinerator referred to in the petition was used for burning food scraps, alleging that it was operated only for the purpose of burning paper plates, napkins, and other paper which accumulated on defendant's lot; that such paper napkins and the like accumulated so rapidly that it was necessary, in the interest of cleanliness and reduction of fire hazard, that they be disposed of more than once a day, which was as often as such waste would be carried away by the city garbage trucks; that defendant obtained a permit from the City of Atlanta for the construction of the incinerator, and the plans therefor were approved by the sanitary department of the city; that defendant "does not permit smoke from his incinerator to go on or over the plaintiff's premises, and that he does not intend to permit the same to occur."

The petition and the answer were positively verified. An interlocutory hearing was held on November 13, 1939, at which the petition, answer, and affidavits were introduced in evidence. The defendant introduced certain photographs, and a copy of an ordinance of the City of Atlanta, zoning the north side of North Avenue between Williams and Spring Streets for business purposes for a depth of 100 feet. The judge took the case under advisement, and on November 22 thereafter the plaintiff filed an amendment striking prayer 2 and substituting therefor the following: "(2-a) That the defendant, his agents and employees be enjoined from shouting through megaphones on said parking lot from eleven o'clock at night throughout the remainder of said night. (2-b) That defendant's patrons be enjoined from parking within fifty (50) feet of house of plaintiff after midnight, unless the remaining parking space on said lot is occupied by cars of patrons. (2-c) That the defendant, his agents and employees, be enjoined from operating the incinerator of the defendant at any hour of the night. (2-d) That the defendant, his agents and employees be enjoined from operating the incinerator at any time so as to discharge smoke upon or against the home of plaintiff. (2-e) That the defendant be enjoined from permitting or allowing on said premises by his employees or patrons after midnight any honking of horns, shouting, or other noises which may be heard in plaintiff's home. (2-f) And for such other and further relief as to this honorable court may seem proper." On November 30 the judge entered an order that the "defendant be and he is enjoined as prayed in the amendment to the petition, filed Nov. 22." On December 2 the defendant filed a motion that the above order be "vacated, set aside, and modified, and that petitioner's prayers be denied." On the hearing of this motion on December 8, the judge ordered "that the judgment heretofore rendered on Nov. 30, 1939, be and the same is hereby modified in the following particulars: The restraining order is denied as to paragraphs 2-b of the prayers of the petition, and it is ordered that in lieu thereof that defendant is enjoined from allowing his patrons to park within fifty (50) feet of plaintiff's residence from midnight on through the remainder of the night, when it is possible for said patrons to park and be served on the remaining portion of the parking lot. The motion to modify and vacate said orders in all other respects is denied." The defendant excepted to the orders of November 30 and December 8. Two of the assignments of error on the order first passed were (1) that this order amounts to a permanent injunction granted at an interlocutory hearing, and (9) said order is erroneous, because it was entered after plaintiff's amendment of November 22, 1939, was filed, and said court acted on said amendment without having a further hearing on the case. The bill of exceptions was certified on December 13, 1939, and filed in the office of the clerk of the trial court on the following day.

On December 19, 1939, plaintiff's attorneys filed a petition or motion, alleging "That the judgment of the court granting the prayers of the plaintiff might be construed as the granting of a permanent injunction; and plaintiff therefore prays that the court modify said judgment by adding thereto the following: ``until the issues in said case shall be passed upon by a jury,' so that order shall read as follows: ``Ordered, after hearing evidence and argument in the above matter, that the defendant be and he is enjoined as prayed in the amendment to the petition, filed November 22, 1939, until the issues in said case shall be passed upon by a jury.'" On the same day the judge "ordered, after hearing evidence in the above matter, that defendant be and he is enjoined as prayed in the amendment to the petition filed November 22, 1939, except that the restraining order as prayed for in paragraph 2-b of the petition is denied, and that this restraining order continue of force until the issues in said case shall be passed upon by a jury." This motion and the order thereon were not specified in the bill of exceptions, but were included in the record as certified by the clerk. 1. Since the orders complained of granted injunction "as prayed" in the plaintiff's amendment, except that the second order departed to some extent from prayer 2-b, the language of the amendment must be looked to for the purpose of ascertaining the terms of the injunction as finally granted, except as here indicated in reference to the second order. It was error to enjoin the defendant altogether from "shouting through megaphones on said parking lot from eleven o'clock at night throughout the remainder of said night" (see prayer 2-a), and from "permitting or allowing on said premises by his employees or patrons after midnight any honking of horns, shouting, or other noises which may be heard in plaintiff's home" (prayer 2-e). There is no contention that the defendant's business is unlawful or constitutes a nuisance per se. In its conduct or operation it was necessary to employ some means by which orders of patrons seated in cars could be taken. The defendant testified that the use of megaphones as described in his answer reduced the noise from automobile horns, and one of his witnesses, the chief of police of the City of Atlanta, testified: "While I have had some complaints from Miss Armstrong [the plaintiff] in regard to the noise at this place, I wish to state that in my opinion this place is operated with less noise than any other place of a similar nature in the City of Atlanta. I find on my visits there that every precaution is being taken to eliminate noise and discourage horn-blowing. This precaution includes signs and also word of mouth by the waiters requesting patrons to not blow their horns but to flash their lights." Numerous other witnesses for the defendant gave testimony that they never heard any loud, excessive, or unusual noises at his place of business. It did not appear from any allegation of the plaintiff that the defendant's business could be conducted with absolutely no "honking of horns, shouting, or other noises which may be heard in plaintiff's home," or that any of these noises were unreasonable or unnecessary in the conduct of such business. Only two buildings facing south in the same block with the defendant's stand and parking lot were used for residential purposes. So far as appears, the plaintiff's residence was wholly within the zoned area, and the evidence showed without dispute that the immediate vicinity on the north side of North Avenue was devoted mainly to business enterprises.

In the recent case of Asphalt Products Co. v. Beard,189 Ga. 610, 612 (7 S.E.2d 172), it was said: "The operation of an asphalt-manufacturing and cement-mixing plant is not a nuisance per se. Nor does it become a nuisance per accidens, if it is conducted in a manufacturing section of a city, merely because it is operated by coal or some fuel discharging obnoxious smoke and cinders, or releases dust, or is accompanied by loud, rattling noises during the day and night, and is within 200 feet of a residence, where it is not shown that such operation is unusual in a business of this character, or unnecessary and avoidable." While in the present case the plaintiff did complain of yelling and shouting through megaphones, she did not allege that any noises so made were unusual or unnecessary, and this weakness in her petition could not be cured by evidence. In the second part of the order to which we have just referred the court went so far as to enjoin any noise whatever after midnight which might be heard in the plaintiff's home, without other qualification. Even the slightest noise was enjoined, if only it might be heard in the plaintiff's home. In the circumstances this would virtually prohibit the defendant from carrying on his business at all after midnight; whereas it has been held by this court, that, "In the absence of statute or ordinance prohibiting it, the business of conducting a sandwich or barbecue stand can be operated at all hours of the night, if the same is carried on in a proper manner." Pig'n Whistle Sandwich Shops Inc. v.Keith, 167 Ga. 735 (2) (146 S.E. 455).

2. It was also error to enjoin the defendant from "operating the incinerator . . at any hour of the night" (prayer 2-c), and from its operation "at any time so as to discharge smoke upon or against the home of plaintiff" (prayer 2-d). "Theoretically, every person has the natural right to have the air diffused over his premises in its natural state, free from all artificial impurities. . . If this rule were literally applied, its application would seriously disturb business, commerce, and society itself. Hence, by air in its natural state and free from artificial impurities is meant pure air consistent with the locality and nature of the community. . . The use of fuel in the home, the place of business, and the manufacturing establishment is necessary. In proportion as the population thickens, the impurities thrown into the air are increased. The pollution of the air, actually necessary to the reasonable enjoyment of life and indispensable to the progress of society, is not actionable; but the right (and such it must be conceded) must not be exercised in an unreasonable manner so as to inflict injury upon another unnecessarily." Holman v. Athens Empire Laundry Co.,149 Ga. 345, 350 (100 S.E. 207). In the instant case, if the plaintiff was entitled to any injunction whatever in reference to smoke, the court should have enjoined only such specific acts as may have been shown by the evidence to result in unnecessary pollution of the atmosphere, either as to volume or odor, considering the locality and its general character with respect to business or residential use. According to this standard, the plaintiff was not entitled to injunction to restrain the defendant from operating the incinerator at any hour during the nighttime, or from operating it at any time so as to dischargeany smoke whatever upon the home of the plaintiff.

3. For similar reasons, the court erred in enjoining the defendant from "allowing his patrons to park within fifty (50) feet of plaintiff's residence from midnight on through the remainder of the night, when it is possible for said patrons to park and be served on the remaining portion of the parking lot" (see prayer 2-b, and order of December 8). The defendant had the right to operate his business at any and all hours of the night, provided the same was conducted in a proper manner; and this right was not limited to any portion of his lot as distinguished from a different portion. The issue was, not where patrons should be permitted to park, but whether in any portion of the lot there was such conduct or noise as unnecessarily and unreasonably interfered with the quiet and comfort of the plaintiff's home. So the judge should have dealt with specific acts, so far as the pleadings and the evidence might have authorized, without reference to the portion of the lot on which patrons should be permitted to park and be served.

In view of the rulings stated above, it is unnecessary to deal with other questions presented by the assignments of error. In connection with all of the foregoing, see Georgia Railroad c. Co. v.Maddox, 116 Ga. 64, 81 (42 S.E. 315); Savannah c. RailwayCo. v. Parish, 117 Ga. 893 (45 S.E. 280); Hunnicutt v.Eaton, 184 Ga. 485 (191 S.E. 919); Warren Co. v.Dickson, 185 Ga. 481 (195 S.E. 568); Poole v. Arnold,187 Ga. 734 (2 S.E.2d 83); Wilson v. Evans Hotel Co.,188 Ga. 498 (4 S.E.2d 155).

Judgment reversed. All the Justices concur.