Leffen v. Hurlbut-Glover Mortuary, Inc.

• Decision Date: 13 April 1953
• Docket Number: No. 42851,No. 1,HURLBUT-GLOVER,42851,1
• Parties: LEFFEN et al. v.MORTUARY, Inc
• Court: Missouri Supreme Court

Page 609

257 S.W.2d 609

363 Mo. 1137

LEFFEN et al. v. HURLBUT-GLOVER MORTUARY, Inc.

No. 42851.

Supreme Court of Missouri, Division No. 1.

April 13, 1953 Motion for Rehearing or to Transfer to Court en Banc May 11, 1953.

Watson, Richart & Titus, Ray E. Watson, F. H. Richart, Rex B. Titus, Joplin, for appellants.

Max H. Glover, Webb City, William O. Russell, Burden & Shortridge, Joplin, for respondent.

LOZIER, Commissioner.

This is an action to restrain the operation and maintenance of a funeral home in the City of Joplin. The theory of plaintiffs-appellants (herein called plaintiffs), home-owning residents of the particular district or area, was that defendant's maintenance and operation of the funeral home constituted a nuisance. Plaintiffs did not ask for damages. Plaintiffs have appealed from an order denying the injunction and dismissing their petition.

There are no estoppel or laches issues. Restrictive covenants are not involved. See 14 Am.Jur., Covenants, Conditions and Restrictions, Sec. 261, p. 637; Anno. 165 A.L.R. 1131; Scallet v. Stock, 363 Mo. ----, 253 S.W.2d 143. As submitted, both below and upon this appeal, the case does not involve municipal zoning. See 58 Am.Jur., Zoning, Secs. 3 and 116, pp. 941 and 1006; 39 Am.Jur., Nuisances, Sec. 46, p. 328; Scallet v. Stock, supra.

Defendant purchased and remodeled (under a permit issued under the city's building code) one of Joplin's fine old homes and began to operate the funeral home on or about February 1, 1948. By trial time (December 7, 1948), 135 funerals had been conducted there. The record shows that defendant was operating its funeral home in a proper manner and by the most modern and approved methods. Plaintiffs' evidence was that the value (for residence purposes) of each of their respective properties had been depreciated in excess of $7,500. Defendant's evidence was that such values (for business or commercial purposes) had been increased.

Plaintiffs pleaded and submitted their case primarily upon the theory that the 'neighborhood' was 'purely and strictly, a residential neighborhood'; that the maintenance and operation of the funeral home constituted a nuisance because of the 'constant reminders of death' to plaintiffs and members of their families, affecting 'enjoyment of their homes, repose, peace and happiness,' and causing 'depression of mind and mental anguish.' The record contains sufficient substantial evidence that the maintenance and operation of the funeral home, in a proper manner, did have such 'depressive effects.'

'The greater weight of recent authority is to the effect that the establishment and operation of an undertaking business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death, appreciably impairing their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance.' 87 A.L.R. 1061, 1062. See also 66 C.J.S., Nuisances, Sec. 72, page 819; 54 Am.Jur., Undertakers and Embalmers, Sec. 7, p. 512. And see cases discussed in Jack v. Torrant, 136 Conn. 414, 71 A.2d 705 (majority rule); Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726 (minority rule). This court has followed the majority rule. Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 43 A.L.R. 1155; Streett v. Marshall, 316 Mo. 698, 291 S.W. 494; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119. And see Seallet v. Stock, 363 Mo. ----, 253 S.W.2d 143.

The trial court's sole finding was 'that the area at and surrounding' the street intersection at which the funeral home is located, 'being the neighborhood described in plaintiffs' petition, is not strictly and exclusively a residential district.' The principal questions here are: What constituted the 'district' in which the funeral home is located and what was the character of that district?

The facts material to the determination of these issues are not controverted. The two principal north-south business streets in 'downtown' Joplin are Main and Joplin Streets. Fourth and Main is 'the main intersection in Joplin.' U. S. Highways 66 and 71 are routed over Main. Joplin Street is one block west of Main. The city hall is on Joplin. The nine north-south streets west of Joplin are, in this order: Wall, Pearl, Byers, Moffet, Sergeant, Jackson, Connor Gray and Picher. The instantly involved east-west streets crossing Main and Joplin are, in this order, north to south: Second, Third, Fourth, Fifth, Sixth and Seventh. Fourth and Seventh are the only 'through trafficways' between the city's east and west corporate limits, and, are 'the principal streets running through that part of town.'

Defendant's funeral home is at the northwest corner of Fifth and Sergeant. Plaintiffs are the respective owners of, and reside in homes on, thirteen tracts. One of the plaintiffs owns another residence which he rents for residence purposes. Most of the plaintiffs have lived in their present homes for many years. Several of the homes are fine old residences, originally among Joplin's best. Three of the homes are in the same block as the funeral home, two directly west across the north-south alley. One is at the southwest corner of Fifth and Jackson. One is at the southwest corner of Fifth and Sergeant, directly south of and across the street from the funeral home. Two are at the northeast and northwest corners of Fourth and Sergeant. Three (constituting the entire west front footage of the block) are on the east side of Sergeant between Fourth and Fifth, the south two directly east of and across the street from the funeral home. The other four tracts are on the east side of Sergeant between Fifth and Sixth.

Plaintiffs' Exhibit 14 shows the area within a circle, the center of which is the middle of the funeral home tract and the diameter of which is one-quarter mile. In the circle are 88 residences (including 2 duplexes plaintiffs' 14 residences, and the residences of two dentists and a doctor whose offices are in their homes), 2 vacant lots and 10 apartment buildings or residences converted to 2 or more apartments, including the residence immediately north of the funeral home. Two of the apartment buildings contain 50 and 35-40 units, respectively. In the circle are a two-doctor medical clinic, a coffee shop, the General Hospital, a cleaning shop, a church, two dentists' homes (and offices therein), a doctor's home (and office therein), a music studio (in a residence in the same block as the funeral home), and the Y. W. C. A.

Plaintiffs' Exhibit 15 is the area bounded by the south line of Third, the west line of Byers, the north line of Seventh and the east line of Connor, 16 square blocks. This area includes the area in the Exhibit 14 circle. The Fifth and Sergeant intersection is almost the exact center of this area. (The two blocks south of Fifth are longer, north and south, than the two north of Fifth.) Exhibit 15 does not show the improvements on the south side of Seventh. On the north side of Seventh between Byers and Connor are 6 residences, 2 apartment buildings, 2 filling stations, a fruit stand, a grocery store, a large market with parking lot, an antique shop and a cleaning shop. In addition to these items on the north side of Seventh, there are in the Exhibit 15 area 141 residences (including 3 duplexes, plaintiffs' 14 residences and the residences of the two dentists and the doctor whose offices are in their homes), 4 vacant lots and 20 apartment buildings. Exhibit 15 also shows these items (additional to items shown on Exhibit 14): A church, an insurance agency, a pastry shop, a foods cold storage plant, a large cafe and a beauty shop.

Defendant's Exhibit E. shows the area between the south line of Second, the west side of Wall, an east-west line south of the south line of Seventh and the east side of Picher. This area, 5 blocks wide northsouth and 8 blocks long east-west, contains 40 square blocks. A railroad right of way crosses the area between the Fifth-Picher and the Seventh-Connor intersections. Exhibit E shows Exhibits 14 and 15 areas and four adjoining areas. On the north, northeast and northwest, is the area between Wall and Picher, 8 square blocks. In this northerly area 39 residences, 44 apartment buildings (or houses in which rooms are rented), a laundry, a dry cleaning establishment, a store, an office and the Red Cross Buildings. The additional area on the south includes some of the improvements on the south side of Seventh, viz.: Four apartment buildings, 3 filling stations, a cleaning shop, two churches, a tourist home, two garages, a liquor store, a title company and a market. Each of the additional areas on the east and the west is two blocks wide. In the additional westerly area (Third-Connor-Seventh-Picher) are 19 residences, 4 apartment buildings, a duplex, a dairy, a storage lot, a parking lot, a telephone warehouse building with storage lot, a storage building, a roofing company, a coal yard, a delivery service and a school. In the additional easterly area (Third-Wall-Seventh-Byers) are: Fourteen residences, 1 duplex, 2 vacant lots, 75 'apartments' or 'rooms' or 'apartments and rooms,' filling stations, Junior College and cafeteria in separate building, markets, hotels, cafes, automobile sales rooms, parking lots, doctors' offices, 5 churches, Elks Club, stores and shops, used car lots, an undertaking establishment, the Scottish Rite Building, the Y. M. C. A., auto repair shops, refrigerator repair shops, a coffee shop, and auto parts shops. There are only three private homes on the west side of Wall between Second and Seventh; the rest of that side (and presumably the other side) of the street is entirely commercial. Between Wall and Byers, the south side of Fourth and both sides of Fifth are clearly commercial. Sixth and Seventh between Wall and Byers are almost exclusively commercial.

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