Moss v. Burke & Trotti

• Decision Date: 26 May 1941
• Docket Number: 30789.
• Citation: 198 La. 76,3 So.2d 281
• Court: Louisiana Supreme Court
• Parties: MOSS v. BURKE & TROTTI, Inc.

3 So.2d 281

198 La. 76

MOSS v. BURKE & TROTTI, Inc.

No. 30789.

Supreme Court of Louisiana

May 26, 1941

Rehearing Denied June 30, 1941.

J. A. Williams and C. V. Pattison, both of Lake Charles, for plaintiff and appellant.

McCoy & King, of Lake Charles, for defendant and appellee.

FOURNET Justice.

This is a suit by a property owner to enjoin the defendant from conducting an undertaking and embalming establishment across the street from his property, on the ground that the same is a nuisance and, as such, should be abated. The plaintiff also seeks to recover damages in the sum of $8,525.48 for loss of rents and depreciation in the value of his property.

The defense is that defendant's establishment is not only located in a district that has been zoned for business purposes, but that the business of undertaking and embalming not being a nuisance per se, defendant cannot be enjoined from operating the same, particularly since it has at all times been conducted in a proper manner, with the use of the most modern and efficient methods known to the trade. The defendant further pleaded the prescription of one year against all claims for damages.

The case was tried on the issues as thus made up and the plaintiff's demands were rejected. From this judgment he prosecutes this appeal.

After the case was lodged here on appeal, the defendant and appellee filed a plea of abatement, alleging therein that on March 20, 1933, plaintiff and appellant disposed of all of his right, title, and interest in the property alleged to be affected by defendant's business, and attaching thereto a certified copy of the sheriff's deed in the foreclosure proceedings by which he was divested of the property.

The late lamented Jerry Cline, who was the presiding judge on the trial of this case, has, in his written reasons for judgment accurately stated the facts and, in disposing of the issues involved, given a complete and thorough analysis of the pertinent authorities and their application to the case at bar. We, therefore, quote with approval his opinion in full:

'The law issues in this case involve broadly the rights and obligations toward each other of adjacent property owners, in the use to which they may put their property. The factual issues involve specifically the questions, first whether the undertaking parlors of the defendant company are improperly located in a district set apart by law or by custom as residential, and second, whether irrespective of the residential character of the neighborhood, the undertaking business there carried on is or has been conducted in such a manner as to create an abatable nuisance. An additional issue is raised by a plea that any remedy under the first fact issue is barred by prescription.

'The plaintiff is owner, by purchase in June, 1923, of two brick bungalow residence properties, fronting north on Iris Street between Hodges and Cole Streets. The defendant company is owner, by acquirement in December, 1925, of property known as No. 428 Kirby Street, and since approximately that date, has been conducting there an undertaking and embalming business. This property extends north and south through the block, so that the south front abuts on Iris Street, directly opposite the plaintiff's bungalow property. The grounds are spacious, and the funeral home building somewhat pretentious. From the Kirby Street front, the property retains the appearance of a residence equal in taste, comfort, and value, to the better class of homes in the city. The Iris Street front bears the usual appearance of the rear portion of residential property. Two buildings, used as garages and storage rooms for undertaking goods occupy the southeast and southwest corners, while between them an open space of fifty or sixty feet is used for passage way for trucks, ambulances and hearses, and presents a view from the bunglaows of the rear door of the main building, through which bodies are received, for embaliming in the first room entered.

'The complaint of the plaintiff is that the establishment of a funeral home and embalming business in a section alleged to be residential, and in close proximity to his property has depreciated its value; that the frequent coming and going of ambulances and hearses, with dead bodies, and their removal into the funeral home in full view of those occupying the front rooms and galleries of his bungalows, together with the odors and sounds connected with such melancholy scenes, destroy or largely decrease their desirability as homes, and thus affect their rental value.

'Reminders of mortality are seldom pleasant to mortals; and to those not inured by habit and experience, scenes of death are tragical. Associated closely and often with the ordinary scenes of the home, they may well be destructive of the peace and comfort belonging of right to every family.

'On the other hand, the decent care and disposal of our bodies after death must be attended to; and persons and places must be dedicated to this purpose. The service, the equipment and the location of the property used in such an essential business, must conform to the community ideals of decorum and of respect to the dead.

'Doubtless it would be difficult, if not impossible, to state a rule by which this conflict between the interests of the individual home owner and the community necessity of care for the dead may be wholly harmonized. The nearest approach is to say that the rule of reason should prevail; which means that each case must depend upon its own peculiar circumstances as to whether the use of certain property in a certain locality for the business of undertaking and embalming is reasonable or unreasonable. 29 Cyc. 1156.

'Some courts have held that the introduction of such business in a strictly residential section may be prevented; and it is said that judicial notice will be taken that the business will inevitably depreciate the value of residential property. Osborn v. City of Shreveport, 143 La. 932 [79 So. 542, 3 A.L.R. 955]; Blackburn v. Bishop [Tex.Civ.App.] 299 S.W. 264; Higgins v. Bloch , 104 So. 429.

'On the other hand, it is held by many authorities that the business of an undertaker is not per se a nuisance, and that injury following therefrom must be physical rather than imaginative--there must be real discomfort or annoyance through the medium of the senses. Accordingly, the finding that residential property will be depreciated in value by the mere presence of such business, is not in itself sufficient to support a judgment for abatement. Dean v. Powell [Undertaking Co., 55 Cal.App. 545], 203 P. [1015], 1017, and citations; Dillon v. Moran , 211 N.W. [67], 68; [L.D.] Pearson [& Son] v. Bonnie , 272 S.W. 375 .

'A number of Louisiana cases in which the location and operation of cemeteries were at issue, were decided upon the principle that a lawful business, lawfully located, is...