DECIDED SEPTEMBER 15, 1942.
Petition for injunction. Before Judge Jackson. Jasper superior court. April 25, 1942.
W. H. Key and M. F. Adams, for plaintiff.
S. H. Baynes, for defendant.
Dissolution, on conflicting evidence, of restraining order, and denial of interlocutory injunction against use of calcium arsenate on cotton growing on land adjoining the plaintiff's orchard, and so destroying or injuring his peach trees, reversed as an erroneous construction, in the judge's order, of the law respecting his discretionary power.
No. 14231. SEPTEMBER 15, 1942.
The plaintiff as the owner of a peach orchard, partly adjoining two tracts of the defendant planted in cotton, sued to enjoin him from dusting this cotton on the adjacent land with calcium arsenate, on the ground that such dusting had defoliated and destroyed or injured a large number of peach trees of the value of $15,000, and if continued would cause further damage; and that the defendant was insolvent. The petition also prayed for a judgment of past damages. It was alleged that the trees had been injured because of the application of the calcium arsenate in a "careless and negligent manner . . and because of its having been applied in such quantities and at such height above the cotton plants as that the natural movements of breezes, winds, and drift, carried large amounts into . . said orchard." The answer denied all essential allegations of the petition. At the interlocutory hearing no demurrer was before the judge. The sworn pleadings and additional evidence on both sides were conflicting as to whether any appreciable damage had been or would be done; as to what injurious effects had resulted or would result from the use of calcium arsenate; and as to whether the defendant's method of its application by a one-man hand duster had injured or would avoid injury to the peach trees. In dissolving a restraining order and refusing an interlocutory injunction, the judge found that: "The evidence in this case being very conflicting, the court is of the opinion that the evidence is equally strong on each side, and that the burden rests upon the plaintiff to prove his case by a preponderance of evidence; and that not being done, the court hereby dissolves" the restraining order, and denies the injunction, on the condition that the defendant "is not to spray his cotton when the wind is blowing strong enough to carry the poisonous dust in such appreciable quantities as will materially damage the peach orchard of the plaintiff." While the plaintiff by brief concedes that "the evidence may not be such as to demand a [finding] in favor of the plaintiff," it is contended that the judge should have granted the injunction, because the case was one "of such gravity as to justify restraining the defendant until final trial;" that the judge, "under a wrong conception of his duty," did not exercise his discretion, because of a "belief that in a case of conflicting evidence he must refuse relief," that he "did not exercise any discretion at all;" and that "the case should be sent back in order that he may determine, not whether the evidence is conflicting, but whether a case is made which entitles plaintiff to have further damage stopped until a jury can settle the issues of fact."
1. In dealing with interlocutory injunctions the Code declares: "The granting and continuing of injunctions shall always rest in the sound discretion of the judge, according to the circumstances of each case. The power shall be prudently and cautiously exercised, and except in clear cases should not be resorted to." § 55-108. If the chancellor in refusing an injunction bases his refusal on the fact that the evidence was in conflict, and it appears that the evidence was in fact in conflict, or if the chancellor, in a case where the evidence was in fact in conflict, enters a mere general judgment granting or refusing an injunction, this court will not in either case reverse the judgment, entered in the exercise of such discretion. Polite v. Williams, 147 Ga. 820 ( 95 S.E. 674); Bennett v. Dickey, 159 Ga. 267 ( 125 S.E. 455); Thompson v. Mutual Investment Corporation, 188 Ga. 476 ( 4 S.E.2d 44); Byrd v. Wells, 191 Ga. 265 (2), 267 ( 11 S.E.2d 887); Jones v. Lanier Development Co., 188 Ga. 141, 145 ( 2 S.E.2d 923).
2. Where, however, an injunction is granted or refused on an erroneous interpretation of the law, the rule giving effect to the chancellor's discretion on issues of fact, so that an affirmance would be required where the evidence as to the facts is conflicting, will not be given application. Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 118 Ga. 255 ( 45 S.E. 267); Hill v. Wadley Southern Ry. Co., 128 Ga. 705 (7) ( 57 S.E. 795); Stribbling v. Ga. Ry. Power Co., 139 Ga. 676 (3), 687 ( 78 S.E. 42); Marion County v. McCorkle, 187 Ga. 312 (2) ( 200 S.E. 285).
3. If the evidence for the complainant and that for the defendant "be in practical equipoise, the injunction should be granted or refused according to the peculiar circumstances of the particular case. There should be a balance of conveniences, and a consideration whether greater harm might result from refusing than from granting the relief prayed for." Everett v. Tabor, 119 Ga. 128, 130 ( 46 S.E. 72).
4. Applying the foregoing rules to the facts of the instant case, while it appears that the judge exercised his discretion in determining the weight of the evidence by adjudicating, that, "the evidence in this case being very conflicting, the court is of the opinion that the evidence is equally strong on each side," he further held "that the burden rests upon the plaintiff to prove his case by a preponderance of evidence; and that not being done, the court hereby dissolves" the restraining order and denies the injunction on certain conditions stated in the order. It thus appears that the judge has in effect erroneously held that in a case where the evidence was equally balanced he was without power, as a matter of law, to exercise his discretion in the grant or refusal of the injunction. This being true, his judgment refusing an injunction, not as a matter of discretion but as a matter of law, must be reversed, and the case remanded in order that he may, under such a state of facts, exercise his discretion in determining whether the injunction shall or shall not be granted.
5. "This court sits to review rulings of the trial courts, and it will not pass upon questions on which no ruling has ever been made by the trial judge." Bourquin v. Bourquin, 110 Ga. 440, 442 ( 35 S.E. 710); Haynes v. Thrift Credit Union, 192 Ga. 229 (3), 233 ( 14 S.E.2d 871); Blount v. Metropolitan Life Insurance Co., 190 Ga. 301, 304 ( 9 S.E.2d 65). The order of the trial judge specifically showing that the case was determined solely on the erroneous construction of law with respect to the discretionary powers of the judge in a case where the evidence was equally balanced, this court will not pass upon other questions of law which have not been adjudicated in the trial court. See, in this connection, McKenzie v. Emanuel Farm Co., 160 Ga. 848 (2) ( 129 S.E. 89); Harrison v. Fulton County Board of Health, 185 Ga. 624, 625 ( 195 S.E. 864).
Judgment reversed. All the Justices concur.