Poultryland Inc. v. Anderson

1. The petition as amended set forth a cause of action against the defendants to enjoin them from maintaining a continuing nuisance per accidens by the operation of a plant, within a residential and business section of a municipality, for the manufacture of material for hog and chicken feed from the entrials of chickens and other fowls and animals, in processing which, odors, gases and vapors were emitted from the plant and caused great discomfort and damage to persons in their residences and places of business within the community.

(a) The petition as amended, alleging that the nuisance was a continuing one and affected injuriously the comfort and health of the petitioners in described particulars, and unless enjoined would cause irreparable damage to them and result in a multiplicity of suits, was not subject to the ground of demurrer that it showed on its face that the petitioners had an adequate remedy at law.

(b) The petition as amended did not show that the defendant corporation was an alienee of the nuisance, but showed that it was the creator thereof, and was not subject to the ground of demurrer that it was defective in not showing that a request, prior to the filing of the action, had been made to abate the nuisance.

2. Under the Code, § 38-1703, the sequestration of witnesses is mandatory in all cases upon a timely request by any party to the cause, and on the present interlocutory hearing the refusal of the trial judge to grant such request by counsel for the defendants deprived the defendants of a substantial and positive right, rendering all subsequent proceedings nugatory and requiring a new hearing on the merits.

No. 15398. APRIL 2, 1946. J. F. Anderson and others filed an equitable petition against Poultryland Inc., a corporation of this State having its office and principal place of business in Hall County, Georgia, and Jesse D. Jewell, alleging as follows: "The defendant, Jesse D. Jewell, is the owner of a certain tract or lot of land located near Athens Street, on Norwood and Mill Streets, in the City of Gainesville, Georgia. On or about August 15, 1944, the said Jewell erected or permitted the erection on said land of a plant for the manufacture of tankage or materials for hog and chicken and stock feed and fertilizer from the carcasses of animals, the entrails of chickens and other fowls and of animals, and other animal matter, and for some months past and at the present time the defendant, Poultryland Inc., through its officers, agents, employees, and servants, whose names are to the petitioners unknown, has been and is now engaged in the operation of the said plant. The said plant is located in a populous section of the said City of Gainesville and in the midst of the places of business and homes occupied by your petitioners. The said plant in its operation emits and gives out such vile, offensive, and obnoxious odors, gas, and vapors that the air which the petitioners are forced to breathe in their places of business and in their homes is so polluted by the said gas, vapors, and odors that same is unbearable and renders it almost impossible for your petitioners to stay in their homes and at their places of business in the vicinity of said plant." The petition further alleged that the stench from said gases and vapors arising from the said plant is so strong and great that the same can be and has been smelled as far as a mile and a half from the said plant and is so strong that it permeates the clothing of the petitioners and their employees while they are engaged at work at their places of business, making it necessary for them to change their clothing in order to get rid of the said odors. The stench and odors from the said gases and vapors is so sickening and overpowering that after the petitioners have inhaled the same they become nauseated and are unable to eat their food with any relish, and on some occasions they have not been able to retain the said food after they have eaten it. In an effort to rid themselves of these noxious, offensive, and unbearable gases and vapors and the odor thereof, the petitioners have been forced to close the doors and windows of their homes and places of business, but the atmosphere and air are so pervaded by the said gases and vapors and their offensive odors that such efforts on the part of the petitioners are unavailing, and the pillows, mattresses, and bed clothing in their homes, located in the vicinity of the said plant, are so contaminated by the said odors that the petitioners can not sleep on or use the same with any degree of comfort whatever. All of the petitioners occupied their places of business and their homes, which are in the vicinity of the said plant, before it was erected and began operation, and up to that time the said homes and places of business were healthy and free from the said vile, offensive, and noxious odors, and the petitioners used and occupied them free from the discomfort now caused as aforesaid by the maintenance and operation of the said plant. The operation and maintenance of the said plant as aforesaid have rendered the homes and places of business of the petitioners very unhealthy and undesirable and have deprived them of the peace, comfort, happiness, and enjoyment of their places of business and homes, and have deprived and are now depriving them of the right to live and carry on their businesses and occupations unmolested and free from the harmful, unhealthy, injurious, and unpleasant conditions created by the operation and maintenance of the said plant. The maintenance and operation of the said plant is a continuing and constant nuisance. If the said plant is allowed to continue to operate and the said nuisance is not enjoined, the petitioners will be forced to abandon their places of business and their homes in the vicinity of the said plant, and will be unable to employ hands to continue to work in such unhealthy, disagreeable, and unpleasant surroundings. The acts of the defendants in permitting the erection and carrying on, operation, and maintenance of the said plant and the permitting of the same on the property of the defendant Jewell have caused and are now causing the petitioners irreparable and constantly recurring damages, and the same will result in a multiplicity of actions if the said acts are not restrained and enjoined. The petitioners have no adequate remedy at law, and unless equity comes to their aid they will be remediless. The carcasses of animals as large as mules and horses are allowed to remain exposed at the said plant for several days at a time, thereby adding to the unpleasant, unsightly, and malodorous conditions existing there. The prayers were, that the defendants be enjoined from operating the plant and continuing the said nuisance, for process, and for such other and further relief as the petitioners may in equity and good conscience be entitled to.

The defendant Jewell filed a plea and answer, and also demurred on the ground that no cause of action was set forth against him, and on several special grounds.

The defendant, Poultryland Inc., filed a plea and answer, and also demurred as follows: 1. No cause of action is set forth against it. 2. It appears from the face of the petition that the defendant is an alienee of the property referred to, and it alleges no request to abate the alleged nuisance as having been made upon the defendant prior to the filing of the petition. 3. The petition shows that, if the petitioners have any right of action at all, they have a complete and adequate remedy at law. This defendant also demurred on several special grounds.

The petitioners filed an amendment to the petition and alleged the following: After the erection and construction of the plant complained of in this cause and the lease of the same by the defendant, Jesse D. Jewell, to the defendant, Poultryland Inc., the said Poultryland Inc., with the full knowledge and consent and with the help and assistance of the defendant, Jesse D. Jewell, the owner of the property on which said plant is located and of said plant, changed the character, structure, and nature of said nuisance and greatly increased the amount of noxious vapors and gases emitted by said plant, in the following manner and ways. When the plant was first erected, the defendant made an effort to dispose of the said noxious vapors and gases by turning the same into the sewer system of Pacelot Manufacturing Company, which sewer system serves the community and cotton-mill villages, known as New Holland, Georgia, and also that part of the residential section of the City of Gainesville, Georgia, occupied by colored people and known as the "Government Houses." As a part of this system of disposing of the said vapors and gases, the defendants erected a trap or vent on said building and premises for the purpose of keeping such vapors and the obnoxious odors from the same out of the said sewer system while allowing the water and other waste to go through the said sewer system. The foul and obnoxious vapors and odors and gases coming from this trap or vent were so disagreeable and destructive of the comfort of the petitioners and others living and working in the community in which the plant is located that the defendants were compelled to and did close up this trap or vent or remove the same, and allowed the said foul and noxious vapors and ill-smelling gases to flow or go into the said sewer system, with the result that they poured out through the manholes of the sewer system, causing a terrible stench to arise therefrom and causing green flies to gather in great swarms about and around the said manholes. In an effort to prevent this condition, the perforated coverings of these manholes were replaced by solid covers, and this caused these noxious vapors and gases to back up into the said sewer system and come out into the homes and bathrooms of the people served by this sewer system, making it almost impossible for them to live in their homes and causing them to demand that the defendants remedy this unbearable condition. In an effort to remedy that condition, the defendants, about one month or six weeks before the filing of this suit, stopped allowing the said noxious vapors and gases to enter the said sewer system and turned the same into the smoke stack of the said plant, from which they have been belched and poured out in greater volume than ever before to pollute the air which the petitioners are forced to breathe while they are at their places of business and in their homes. When the conditions became even more unbearable by reason of these noxious vapors and gases being poured out from the said smokestack into the homes and places of business of the petitioners, they requested and demanded that the defendants abate the said nuisance and stop the pollution of the air with the said noxious, ill-smelling, and disagreeable vapors and gases, and the defendants having failed and refused to do so, the petitioners then brought this action against them. The locality and community in which the plant is located is predominantly a residential section, in which a large number of both white and colored people live, and the maintenance and operation of the defendants' said plant in the manner in which it is operated and maintained in the community and locality is a continuing nuisance and should be enjoined in this action. The petitioners, knowing that the defendant Jewell had operated a plant in another part of the City of Gainesville, which was so offensive to the people of that community that he was compelled to cease to operate the same, inquired as to the nature of the plant which is herein complained of, and were told that it was to be a feather-drying plant from which there would be absolutely no odor, and relying upon these statements the petitioners did not object to the erection of the plant, whereas, if it had not been for these false and fraudulent representations on the part of the defendants and their servants and employees, the petitioners would have objected to the erection of the plant at that time and would have used every means within their power to prevent it from being built. The petitioners charge on information and belief that the defendant Jewell is the principal stockholder and owner of most of the stock in the defendant corporation, Poultryland Inc., and that the erection of the said plant by him and the leasing of it to the defendant corporation and its operation and maintenance by the said corporation was and is a part of a scheme on the part of both of these defendants to foist this nuisance upon the petitioners and the other people living and working in this locality, in which scheme both of the defendants have been actively engaged from the beginning and are now so engaged, and their acts in furtherance of the said scheme by the maintenance and operation of the said plant constitute a nuisance and are an invasion of the petitioners' rights for which they have no adequate remedy at law.

The defendant, Jesse D. Jewell, renewed his demurrer to the petition as amended, and also demurred on additional special grounds.

The defendant, Poultryland Inc., renewed its demurrer to the petition as amended, and also demurred on additional special grounds.

The court sustained several grounds of special demurrer unless met by sufficient amendment at or before the hearing by a jury, and overruled the other special grounds, and also overruled the grounds of general demurrer of both the defendants.

Upon the interlocutory hearing counsel for the defendants moved for a segregation of the witnesses. The judge stated that, being out of his circuit and substituting for the regular judge, he had no sheriff to execute his orders and denied the motion. It was thereupon stated by counsel for the defendants that a deputy sheriff of Hall County, in which the hearing was had, was then in the courtroom, and that an officer could be secured, but the judge adhered to his ruling.

At the conclusion of the introduction of evidence, the court granted an injunction as prayed until the further order of the court, to become effective on October 25, 1945.

In the bill of exceptions brought to this court by the defendants error is assigned: (1) on the rulings on the demurrers; (2) on the order of the court refusing to segregate the witnesses; and (3) on the judgment granting an injunction, it being contended as to the latter that it is contrary to law and the evidence, and that at most the defendants should have been enjoined only from operating the business in such a manner as to make it a nuisance, and that, if the judgment as entered be not vacated, it should be modified so as to permit the defendants to operate their business in a lawful manner. 1. While the bill of exceptions assigns error on the ruling on certain special demurrers, the objections are not argued in the brief of counsel for the plaintiffs in error or insisted upon, and will, therefore, not be considered.

"A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." Code, § 72-101. "Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals." Section 72-102. In numerous decisions of this court a nuisance per se has been defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. See Washington Seminary Inc. v. Bass, 192 Ga. 808, 816 (16 S.E.2d 565), and citations. Nothing that is lawful in its erection can be a nuisance per se. Bacon v. Walker, 77 Ga. 336 (a). See also Long v. Elberton, 109 Ga. 28 (34 S.E. 333, 46 L.R.A. 428, 77 Am. St. Rep. 363). The mere erection of the plant here described is not without more a nuisance per se, and the allegations of the petition do not show it to be such. But is a nuisance per accidens alleged? "Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings." 46 C. J. 649, § 5. InSimpson v. Dupont Powder Co., 143 Ga. 465, 467 (85 S.E. 344, L.R.A. (1915E, 430), the following from Windfall Mfg. Co.v. Patterson, 148 Ind. 414 (47 N.E. 2, 37 L.R.A. 381, 62 Am. St. Rep. 532), is quoted with approval: "But a business lawful in itself can not be a nuisance per se, although, because of surrounding places or circumstances, or because of the manner in which it is conducted, it may become a nuisance. . . Others [certain businesses or structures], as slaughter-houses and certain foul-smelling factories, are so offensive to the senses that they must be removed from the limits of cities and towns, and even from the neighborhood of family residences. Yet there must be some proper place where every lawful business may be carried on without danger of interference on the part of those who in some slight degree may be annoyed or endangered by the nearness of the objectionable occupation." "A rendering plant is not a nuisance per se, but it may be so conducted or operated as to constitute a nuisance. It has been held [Rhoades v. Cook,122 Iowa 336, 98 N.W. 122] that such plant is prima facie a nuisance." 46 C. J. 722, § 258. After stating in Benton v.Pittard, 197 Ga. 843 (31 S.E.2d 6, 153 A.L.R. 968), that "A thing that is lawful and proper in one locality may be a nuisance in another. In other words, a nuisance may consist merely of the right thing in the wrong place, regardless of other circumstances," this court quoted from the early case of Coker v. Birge, 9 Ga. 425, 428 (54 Am. D. 347), as follows: "If one do an act, of itself lawful, which, being done in a particular place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on him to find some other place to do that act where it will not be injurious or offensive. . . To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable." In Ponder v. Quitman Ginnery,122 Ga. 29 (3) (49 S.E. 746), it was ruled: "The employment by the owner of a ginning plant of machinery which separates dust and sand from cotton and expels the particles of dust and sand into the air in large volumes, causing the same to be blown into the dwelling-house of an adjacent proprietor, to his great discomfort and injury, is an invasion of his property rights, for which an action for damages will lie." In Holman v. Athens Empire Laundry Co., 149 Ga. 345 (100 S.E. 207, 6 A.L.R. 1564), the petitioner sought to enjoin the defendant from operating its plant with soft coal which threw out a black, dense smoke. The defendant's evidence showed that its laundry and the petitioner's building were located in the business section of the city, and the laundry had been in operation several years before the petitioner erected his building in close proximity thereto. In reversing the direction of a verdict for the defendant this court, on page 350 of the opinion, said: "Theoretically, every person has the natural right to have the air diffused over his premises in its natural state, free from all artificial impurities. Wood on Law of Nuisances (3d ed.), § 495. 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 andnature of the community. Wood on Law of Nuisances (3d ed.), § 496, and cases cited; Joyce on Law of Nuisances, § 136, and cases cited. [Italics ours.] 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. . . The right to use one's property as he pleases implies a like right in every other person; and it is qualified by the doctrine that the use in the first instance must be a reasonable one. . . In Crump v. Lambert, L. R. 3 Eq., 409, 412, Lord Romilly, M. R., said: `With respect to the question of law, I consider it to be established by numerous decisions that smoke, unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property.' To constitute smoke a nuisance, according to the authorities, it must be such as to produce a visible, tangible, and appreciable injury to property, or such as to render it specially uncomfortable or inconvenient, or to materially interfere with the ordinary comfort of human existence. . . With respect to dwelling-houses, the rule is stated in Wood on Nuisances (3d ed.), § 505, as follows: `The rule is that the comfortable enjoyment of the premises must be sensibly diminished, either by actual, tangible injury to the property itself, or by the promotion of such physical discomfort, as detracts sensibly from the ordinary enjoyment of life.'"

The allegations of the petition bring the case within the principles of law announced in the above-quoted decision andAsphalt Products Co. v. Beard, 189 Ga. 610 (7 S.E.2d 172), and Delta Air Corp. v. Kersey, 193 Ga. 862 (20 S.E.2d 245, 140 A.L.R. 1352). It is alleged substantially as follows: The plant is located in a populous section of the City of Gainesville, Georgia, and in the midst of the places of business and homes occupied by the petitioners. In its operation the plant emits and gives out such vile, offensive, and obnoxious odors, gas, and vapors that the air which the petitioners are forced to breathe in their places of business and their homes is so polluted as to be unbearable and renders it almost impossible for them to stay in their homes and at their places of business in the vicinity of the plant. The stench arising from the plant is so strong and great that it can be smelled as far as a mile and a half from the plant, and it permeates the clothing of the petitioners and their employees while they are engaged at their work at their places of business, making it necessary for them to change their clothing in order to get rid of the said odors. After the petitioners have inhaled the same, they become nauseated and are unable to eat their food with any relish, and on some occasions they have not been able to retain the said food after they have eaten it. "There is in principle no distinction between any of the cases, whether it be smoke, smell, noise, or gas." Holman v. Athens Empire Laundry Co., supra. The petition as amended set forth a cause of action against Poultryland Inc. because of a continuing nuisance per accidens, and also against Jesse D. Jewell, it being alleged that in changing the character, structure, and nature of the nuisance, increasing the amount of noxious vapors and gases emitted by the said plant, Poultryland Inc. did so with the full knowledge and consent of the defendant Jewell and with his help and assistance. The amendment charges in substance that both defendants conspired to maintain the alleged nuisance, constituting them joint tort-feasors. The court did not err in overruling the general demurrers on the ground that no cause of action was set forth.

But it is contended in one ground of the general demurrer of Poultryland Inc. that the petition shows on its face that the petitioners have an adequate remedy at law, and it is argued that, since the plant is alleged to be in the City of Gainesville, the petitioners should be relegated to the remedy provided in the Code, § 72-401, for the abatement of a nuisance by city authorities. In Broomhead v. Grant, 83 Ga. 451 (10 S.E. 116), cited and relied on by the plaintiffs in error, it was ruled: "To abate a nuisance, public or private, the remedy provided in the Code, §§ 4094-9 [including a section which is now § 72-401], should be resorted to, unless the special facts makethat remedy inadequate." (Italics ours.) In State ex rel.Boykin v. Ball Investment Co., 191 Ga. 382, 388 (12 S.E.2d 574), it was said: "We take no issue with the proposition, that, although a nuisance exists in a city under the government of a mayor or common council, a court of equity will in a proper case take jurisdiction of a suit to enjoin its continuance, notwithstanding the provisions of the Code, § 72-401, when the nuisance is a continuing one." In Hornsby v. Smith, 191 Ga. 491 (13 S.E.2d 20, 133 A.L.R. 684), it was said: "If the alleged conduct of the defendant constitutes a continuing nuisance as defined in the Code, § 72-101, the plaintiff is entitled to equitable relief." See also Giles v. Rawlings,148 Ga. 575 (97 S.E. 521); Hunnicutt v. Eaton, 184 Ga. 485,487 (191 S.E. 919). In Spencer v. Tumlin, 155 Ga. 341,342 (116 S.E. 600), this court, after referring to the provision of the Code for abating a nuisance in cities and toBroomhead v. Grant, supra, pointed out that a continuing nuisance makes a proper case for equitable relief, and further said: "Besides, plaintiffs allege that this nuisance will cause sickness. Under these special facts, we do not think that the remedy provided under § 5331 [now 72-401] furnishes an ample and complete remedy for the plaintiffs." In Waller v. Lanier,198 Ga. 64 (30 S.E.2d 925), also relied on by the plaintiffs in error, a solicitor-general brought an action to abate as a public nuisance a place where slot machines were maintained in violation of the law against lotteries. While this court there ruled that the remedy under the Code, § 72-401, was adequate, it was recognized in the opinion in that case that special circumstances might require the intervention of equity. Here it is alleged that: `The maintenance and operation of said plant is a continuing and constant nuisance," and that "the acts of the defendants in permitting the erection and carrying on, operation and maintenance of the said plant and the permitting of the same on the property of the defendant have caused and are causing the petitioners irreparable and constantly recurring damages, and the same will result in a multiplicity of actions if the said acts are not restrained and enjoined." It was also alleged that the odors, gases, and vapors emitted from the plant are so obnoxious as to injuriously affect their health and comfort, causing many to become nauseated and to vomit, and requiring relief which can be adequately afforded only by a court of equity. It follows from the above that the contention that the petition as amended shows on its face that the petitioners have an adequate remedy at law is without merit.

Nor is there any merit in the ground of demurrer of Poultryland Inc. that it appears from the petition as amended that it is an alienee, and that no request, filed before the bringing of the action, has been made upon it to abate the nuisance, as required by the Code, § 72-105. There is no allegation that, before leasing the plant to Poultryland Inc. the defendant Jewell ever operated it. He merely "erected or permitted the erection," etc. The actual operation of the plant is charged to Poultryland Inc. in the language, "for some months past and at the present time the defendant, Poultryland Inc., through its officers, agents, employees, and servants, whose names are to your petitioners unknown, has been and is now engaged in the operation of said plant. . . That said plant in its operation emits and gives out such vile, offensive, and obnoxious odors, gas, and vapors," etc. Hence, Poultryland Inc. is shown to be the creator of the alleged nuisance. Even if it could be said to be an alienee, a theory to which we do not subscribe, the amendment to the petition shows a compliance with the statute, it being alleged that, when the conditions became even more unbearable by reason of the noxious vapors and gases being poured out from the smokestack of the plant into the homes and places of business of the petitioners, they requested and demanded that the defendants abate the said nuisance and stop the pollution of the air with the said noxious, ill-smelling, and disagreeable vapors and gases; and the defendants having failed and refused to do so, the petitioners then brought this action. But the amendment alleges facts which dispense with the necessity of showing notice, for it is alleged that, after the erection and completion of the plant and the lease of it by Jewell to Poultryland Inc., the latter, with the help and assistance of Jewell, "changed the character, structure, and nature of the said nuisance and greatly increased the amount of noxious vapors and gases emitted by the said plant, in the following manner and ways." Then the amendment sets out in detail the various steps taken by Poultryland Inc. to dispose of the harmful vapors and gases and the consequential increased pollution of the air and greater discomfort to the petitioners in their places of business and in their homes. It was also alleged that the locality and community in which the plant is located is predominantly a residential section, in which a large number of both white and colored people live, and the maintenance and operation of the defendants' said plant in the manner in which it is operated and maintained in the community and locality is a continuing nuisance and should be enjoined in this action. Hence, we have allegations showing changes made by Poultryland Inc. itself in the character or structure of the alleged nuisance, in which case notice to abate is not essential to the maintenance of an action against it even as an alienee originally. Middlebrooks v. Mayne,96 Ga. 449 (23 S.E. 398); Seaboard c. R. Co. v. Ambrose,122 Ga. 47, 48 (49 S.E. 815); Georgia Power Co. v. Moore,47 Ga. App. 411, 412 (170 S.E. 520).

2. Error is assigned on the refusal of the trial judge to exclude, upon request, the witnesses from the courtroom, it being contended that it was mandatory upon the judge to accede to such request under the Code, § 38-1703, which provides: "In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude the witness." The practice of separating witnesses or, as generally called, "putting under the rule," is of ancient origin and salutary in the proper administration of justice, the object being, of course, to prevent one witness from being taught by another as to the testimony he should give. Whatever may have been the rule at common law, and despite interpretations placed thereon in any early decision of this court, the rule as fixed by the Code of 1863 (§ 3787) and continued in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case, and where it appears that in making the exception to the rule the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom. The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, and, hence, the rule is applicable and mandatory in an interlocutory hearing for injunction. Here counsel for the defendants invoked the rule at the beginning of the hearing and before the introduction of any evidence, and the refusal of the trial judge to accede to such timely request was a denial of a substantial and positive right of the defendants. It is no answer to the violation of the mandatory rule to say that the record does not show any harm to have resulted to the defendants because of this error, since it has been held in numerous cases that, whenever the rights of a party are withheld or violated, the presumption of law is that he has been injured unless the contrary plainly appears. Tedder v.Stiles, 16 Ga. 2 (6); Battle v. Royster Guano Co.,155 Ga. 322 (3) (118 S.E. 343); Atlanta Coach Co. v. Cobb,178 Ga. 544 (1, 2) (174 S.E. 131); Coleman v. Newsome,179 Ga. 47 (174 S.E. 923); Stanley v. Warner Bros. PicturesInc., 64 Ga. App. 228, 231 (12 S.E.2d 441). The error in depriving the defendants of such a substantial right rendered all subsequent proceedings nugatory and requires that a new hearing be had.

Judgment reversed. All the Justices concur.