Rhodes v. A. Moll Grocer Co.

Decision Date07 July 1936
Citation95 S.W.2d 837,231 Mo.App. 751
PartiesMARY V. RHODES, RESPONDENT, v. A. MOLL GROCER COMPANY, A CORPORATION, KURT V. MOLL AND RENE N. MOLL, APPELLANTS
CourtMissouri Court of Appeals

Motion for Rehearing Overruled July 20, 1936.

Appeal from Circuit Court of City of St. Louis.--Hon. Henry A Hamilton, Judge.

AFFIRMED.

Judgment affirmed.

Allen Moser & Marsalek and Wm. H. Allen for respondent.

(1) There is nothing before this court but the record proper, and as it is not contended that any error appears in the record proper this judgment should be affirmed. There is nothing before the Court but the record proper, for the following reasons: (a) Appellants' purported abstract of the record proper does not show that any bill of exceptions was ever filed in the case. Hampe v. Versen, 32 S.W.2d 797; Lamonte Bank v. Crawford, 13 S.W.2d 1101; Bailey v. Nichols, 70 S.W.2d 1103; Pabst Brewing Co. v Howard, 211 S.W. 720; Billings Spec. Road Dist. v. Christian County, 319 Mo. 963. (b) No bill of exceptions is identified as such in appellants' purported abstract. It is necessary that the bill be identified in the record "at each end" in order to be before the appellate court. Reno v. FitzJarrell, 163 Mo. 411; Simmons v. Schibsby, 238 S.W. 811. (c) Appellants' purported abstract hopelessly commingles matters of record proper and matters of exception. Lamonte Bank v. Crawford, 13 S.W.2d 1101. (d) It does not appear from appellants' purported abstract of the record proper a motion for a new trial, or, if one was filed, that it was overruled. Frieze v. Snyder, 235 S.W. 184. (e) Respondent, in order, if necessary, to comply with rule thirty-four of this court in this connection, filed written objections to appellants' purported abstract within ten days after the filing thereof, but appellants took no steps to attempt to remedy the defects or supply the deficiencies therein. It is now too late to make any such attempt. Lamonte Bank v. Crawford, supra. (2) The evidence adduced below, though not lawfully before this court at all, abundantly warranted the action of the trial court in entering a decree for plaintiff permanently enjoining the operation of the Moll lot and driveway adjoining plaintiff's premises as a parking lot and open-air garage. The evidence shows that Enright avenue in that neighborhood is a strictly high-class residential street; that such operation of said lot and driveway constituted an intolerable nuisance, making it impossible for plaintiff and the members of her family to live in her home with any comfort, imperiling plaintiff's health and that of the members of her family and greatly depreciated the value of her property, and that plaintiff suffered special damage therefrom over and beyond that suffered by the community in general. That, under the decisions of our courts, as well as those in other jurisdictions, plaintiff is entitled to have such nuisance enjoined cannot be doubted. George v. Goodovich, 288 Pa. 48, 135 A. 719, 50 A. L. R. 105; Mitchell v. Guaranty Corp., 283 Pa. 361, 129 A. 114; Street v. Marshall, 316 Mo. 698; Tureman v. Ketterlin, 304 Mo. 221; Sullivan v. American Mfg. Co., 33 F.2d 690; Lademan v. Lamb Const. Co. (Mo. Sup.), 297 S.W. 184; Greene v. Spinning (Mo. App.), 48 S.W.2d 52; Mason v. Deitering, 132 Mo.App. 26; Atterbury v. West, 139 Mo.App. 180; Shelton v. Lentz, 191 Mo.App. 699; Schoen v. Kansas City, 65 Mo.App. 134; Scheurich v. Empire Dist. Elec. Co. (Mo. Sup.), 188 S.W. 114.

Geo. A. McDonald for appellants.

(1) Mary V. Rhodes signed the petition as the owner of the property. Testimony as well as public record showed one C. W. McCready was the owner and property was so conveyed to him by Mary V. Rhodes, plaintiff (now respondent), on the 1st day of February, 1932, or ten (10) months before this action was brought, and no injunction should be granted until the title in question had been decided. Saunders v. Dixon, 114 Mo.App. 229, covering the party at interest; Echelkamp v Schroeder, 45 Mo.App. 505, covering the question of title. (2) The nuisance features of the allegations in the petition were not sustained by the evidence, even if all the other elements were present, that would give plaintiff (now respondent) the right to bring an action to restrain a nuisance either private or public. Brier v. State Exchange Bank, 225 Mo. 673, 125 S.W. 469; Putnam v. Coats, 283 S.W. 717, 220 Mo.App. 218; McKenzie v. Mathews, 59 Mo. 99; State ex rel. Kanamore v. Wood, 56 S.W. 474, 155 Mo. 425, L.R.A. 596; State ex rel. Bromschwig v. Hartman, 300 S.W. 221, ___ Mo.App. ___; Aufdenheide v. Polar Wave, 319 Mo. 339; 46 C. J., p. 665, Par.; Glaessner v. A. B. Brg. Assn., 100 Mo. 508; Baker v. McDaniel, 178 Mo. 447; St. Louis M. S. & E. R. Co., 214 Mo. 593; Caskey v. Edwards, 128 Mo.App. 237; Warren v. Cavanaugh, 33 Mo.App. 102; Attebury v. West, 139 Mo.App. 180; 60 Mo.App. 156; Warren v. Herman, 87 Mo.App. 125; Ver Steeg v. Wabash R. R., 250 Mo. 61, 156 S.W. 689; Green v. Spinning, 48 S.W.2d 51; Symonds v. Novelty Cemetary Assn. of Knox Co., 21 S.W.2d 889. (3) The odor from gas fumes, oil, etc., allegation of plaintiff's petition was not proven in fact, or that the property as a house had been destroyed or materially altered so as to render it unfit for habitation, etc., or that the appellants did not have the right to use their property to its fullest extent. Bradbury Marble Co. v. Laclede Gas L. Co., 128 Mo.App. 96; Patton v. Ry. Co., 253 Mo. 660; Zugg v. Arnold, 75 Mo.App. 68. (4) The fact that there is dust, dirt, etc., next door to a residence is not a nuisance per se. Gibson v. Donk, 7 Mo.App. 75. (5) The fact that plaintiff (now respondent) slept on her rights in bringing an injunction proceedings after the lot had been used for a period of two years, and after the bringing of the action signing two stipulations waiving the very things the action was based on, precludes her from being entitled to judgment. There are no cases in Missouri on signing a stipulation of this character, but it is covered in 32 C. J., p. 71, par. 55 (2), cites Higbee v. Camend, etc., R. Co., 20 N.J.Eq. 435; Reid v. Gifford, 6 Johns Ch. (N. Y.) 19; Primm v. White, 142 S.W. 802. (6) There was noting proven that money was charged for parking, or that a shelter was erected on the lot to house the cars; to make a parking lot within the meaning of the law a bailment for hire or leasing must be established. 42 C. J., p. 1304, cites Suits v. Elec. Park Amusement Co., 213 Mo.App. 275, 249 S.W. 656; Lord v. Oklahoma State Fair Assn., 95 Okla. 294. Respondents failed to give notice to appellant five days before filing of motion to dismiss. The court held in the case of State ex rel. O'Malley v. Musick, 145 S.W. 1184, 165 Mo.App. 214, that to fail in that respect is fatal. The courts have held repeatedly that assignment of error and points of authority are considered clear and concise statements, and if they are segregated and the authorities shown in proper order then the requirements of sec. 1060, Revised Statutes 1929, have been complied with. The following cases have held the foregoing: Wills v. Sullivan, 211 Mo.App. 318, 242 S.W. 180; Savings Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; Wallace v. Libby, 231 Mo. 341, reference to appellant's brief will bear out the contention that a clear and concise statement has been made. Morgan v. Wheeler, 241 Mo. 376, 145 S.W. 462; Ray County Savings Bank v. Hutton, 224 Mo. 42. In the case of Ulrich v. Young, 34 S.W.2d 1008, the court held "Bill of exceptions cannot be considered part of the record without showing in abstract bill was presented to trial judge and signed." Harbe v. Walsh, 38 S.W.2d 523, 225 Mo.App. 770, it was held "Recital in appellant's abstract of record that bill of exceptions was duly filed, held sufficient to dispense with necessity of abstracting record entry showing bill was filed. This case cites Simmons v. Schibsky et al., 238 S.W. 811-12; State ex rel. L. & P. Co. v. Trimble, 291 Mo. 532, 237 S.W. 1021; Billings Special Rd. Dist. v. Christian County, 319 Mo. 963, 5 S.W.2d 378.

HOSTETTER, P. J. McCullen, J., concurs. Becker, J., concurs in result.

OPINION

HOSTETTER, P. J.

--This is a suit in equity which was instituted in the Circuit Court of the City of St. Louis on December 23, 1932, by plaintiff, Mary V. Rhodes, who owns a residence property, being Lot 31 in Clemens Place of City Block 4548, known and numbered as 5658 Enright Avenue, in the City of St. Louis.

Enright Avenue is an east and west street and plaintiff's residence is located in the north half of the block and fronts north on Enright Avenue, as do all the other houses situated in the north half of the same block. Delmar Avenue, also an east and west street, parallels Enright Avenue immediately on the south. An alley runs east and west through the center of said block in which plaintiff's residence is located.

One of the defendants, A. Moll Grocer Company, is a Missouri corporation, having its principal office and place of business at 5659 Delmar Boulevard in the City of St. Louis, where it is engaged in the selling of groceries and meats. It fronts south on Delmar in the south half of the same block in which plaintiff's residence is located; other houses in the south half of the same block likewise front south on Delmar, so that the south half of the block is composed of business houses and the north half is composed of residences, the alley separating the residential portion from the business portion of the block.

Plaintiff by her petition, sought to enjoin and restrain the defendant corporation and the two individuals, Kurt V. Moll and Rene N. Moll, from using and operating Lot No. 30 in Clemens Place of City Block 4548, known and numbered as 5664 Enright Avenue in St. Louis,...

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