Moon v. Clark , 192 Ga. 47 ( 1941 )

The evidence showing that no conspiracy existed as alleged, and failing to demand a finding that special injury had been suffered by the petitioner as a result of the business methods of the defendants, the judgment denying an interlocutory injunction was authorized.

No. 13671. APRIL 16, 1941. The petition of Charles C. Moon against Grady Clark, Spur Distributing Company, Time Service Stations Inc., and Southern Oil Stores Inc., alleges, that petitioner is engaged in the retail sale of gasoline, oil, and similar business generally conducted by a filling-station; that each of the defendants owns and operates a number of filling stations throughout Fulton and DeKalb Counties, at which they conduct business similar to that conducted by the petitioner; that petitioner and all of the defendants sell what is known as Ethyl gasoline, which has a standard insignia required to appear on every pump from which it is dispensed; that the defendants have entered into an unlawful combination and conspiracy and have agreed to act as a unit in the sale of gasoline, and particularly Ethyl gasoline, and are giving away with each sale dishes, pans, pots, aluminumware, silverware, coupons, and profit-sharing certificates, and issuing books which contain a sealed number on which is placed a stamp with each purchase of gasoline, and the distributor breaks the seal when the book has been filled with stamps and gives the customer the consideration expressed under the seal either in cash or merchandise, varying from one quart of oil to ten dollars in cash; that the defendants advertise the selling and giving away of cigarettes at less than cost, in connection with the sale of Ethyl gasoline, as a means of inducing the public to trade with them; that the business conduct of defendants is causing the plaintiff to lose customers, and is intended to drive him and others similarly situated out of business, so that defendants can fix the price of gasoline to suit themselves; that each of the defendants has a sign at his filling-station, representing that these articles are free and are given with the purchase of gasoline; that when the cost of such free articles is deducted from the profits made from the sale of gasoline, the defendants are selling gasoline at less than it actually costs them; that by the methods employed the defendants obtained the greater part of their business; that defendants by carrying on such unlawful combination and giving prizes debauched the morals of the public, and so much of their business as maintains, operates, carries on and conducts "said lottery" is a public nuisance and directly injures petitioner in his business and other filling-station operators in like circumstances; that petitioner's damages resulting from the conduct of defendants are incapable of computation; that if defendants are not enjoined he will suffer irreparable injury; and that he has no adequate remedy at law. The prayer is that each of the defendants be enjoined from continuing to carry on the unfair trade practices and all of the acts complained of in the petition.

The defendants answered, denying in general the material allegations of the petition. At interlocutory hearing the plaintiff introduced a number of affidavits of filling-station operators, the substance of which was that they had lost customers and experienced a decrease in their business since defendants had been operating in the territory. Affidavits were introduced, showing that customers of defendants had received stamps, coupons, a book with a sealed number thereon, and merchandise as gifts or premiums from various ones of the defendants in connection with the purchase of gasoline. The petitioner made affidavit that he had lost customers as a result of the business methods of the defendants, which customers had gone to the defendants. The defendants introduced affidavits showing their respective methods of operation. No one of them employed the same method as the others; and it was shown that there had never been any agreement or understanding between any of them as to the business methods they would employ, and that each of the defendants was a keen competitor of the others, none having information about the others' business, more than the average citizen gained by observation in passing their places of business. The evidence showed that none of them gave away cigarettes, and that in the instances where cigarettes were available to the public they were made available by concession and sold by other parties by means of a machine at a price greater than the prevailing market price. Spur Distributing Company produced evidence showing that the average cost of Ethyl gasoline was 14.71 cents per gallon, including freight and taxes, that the average cost of the premiums it gave with purchases was 89 cents per gallon, that the net profit it received on the sale of Ethyl gasoline after taking into consideration the cost of the premiums given away by it was 5.3 cents per gallon, and that for every purchase of gasoline Spur offered merchandise as a premium which the customer was required to select and receive at the time of the purchase. Grady Clark made affidavit in behalf of the defendants, showing that his method was known as "Clark's Customer Dividend Plan," whereby he gives with each gallon of gasoline or quart of oil purchased a stamp of the cash value of 25 cents, which is affixed by the customer to a book also furnished by Clark; that the customer is entitled to various articles of merchandise for stated numbers of such stamps; that in the event the customer does not desire such merchandise, as an alternative when he has accumulated 200 stamps he may present the book to the filling-station attendant and have the seal thereon broken and receive the premium printed under the seal, which varies from five quarts of oil to ten dollars in cash. Southern Oil Stores Inc. introduced an affidavit showing that it used United Profit-Sharing Coupons as an advertising medium, rather than newspaper advertisement, and that its coupons are redeemable in cash or merchandise. The other defendant showed that it gave articles of merchandise free with purchases of gasoline. The plaintiff excepted to the denial of an injunction. There is no evidence to support the allegations of combination and conspiracy. The remaining complaint is based upon the alleged public nuisance resulting in private injury to the plaintiff. "Generally, a public nuisance gives no right of action to any individual. If a public nuisance shall cause special damage to an individual, in which the public do not participate, such special damage shall give a right of action." Code, § 72-103. A public nuisance is one which damages all persons who come within the sphere of its operation. It may vary in its effect upon individuals. Gullatt v. State, ex rel.Collins, 169 Ga. 538 (3) (150 S.E. 825). In order for an individual to abate a public nuisance it is necessary that he show special damages. Ison v. Manley, 76 Ga. 804;Savannah, Florida Western Railway Co. v. Gill, 118 Ga. 737 (45 S.E. 623); Sammons v. Sturgis, 145 Ga. 663 (89 S.E. 774). A court of equity will not enjoin the mere violation of a criminal law. Dean v. State, 151 Ga. 371 (106 S.E. 792, 40 A.L.R. 1132); Warren Co. v. Dickson, 185 Ga. 481, 485 (195 S.E. 568). The grant of an interlocutory injunction rests in the sound discretion of the judge. Code, § 55-108. Before the Supreme Court will interfere, an abuse of discretion in granting or refusing an injunction must be manifest. Moses v.Flewellen, 42 Ga. 386; Voyles v. Carr, 173 Ga. 627 (160 S.E. 801); Holland Pecan Co. v. Brown, 177 Ga. 525 (170 S.E. 357); Vickers v. Gainesville, 177 Ga. 793 (171 S.E. 299); Reagin v. Harrison, 181 Ga. 742 (184 S.E. 321). If the evidence is in conflict, such judgment will not be reversed. Bowman v.Darby. 181 Ga. 103 (181 S.E. 584); Frederick v.McCleskey, 182 Ga. 468 (185 S.E. 722); Dickson v. WarrenCo., 183 Ga. 746 (189 S.E. 839); Jeanes v. WilliamPrescott Turpentine Co., 185 Ga. 91 (194 S.E. 746).

There was evidence to the effect that the business of petitioner had decreased considerably since defendants began the methods of operating complained of, that customers of petitioner had left him and gone to one of the defendants, and that prospective customers had inquired of petitioner if he gave premiums with purchases. Without deciding whether this evidence would have authorized a finding that petitioner was suffering injury not common to the public as a result of business methods of defendants, it is sufficient to say it did not demand such a finding; hence no abuse of discretion is shown. Since by this ruling the judge was authorized to find that petitioner was not injured as the law requires before a public nuisance will be enjoined on the petition of an individual, it becomes unnecessary to decide, and we do not decide, the question as to whether the business methods practiced by defendants constitute a public nuisance. The judgment complained of was authorized by the evidence.

Judgment affirmed. All the Justices concur.