Breadon v. Paugh

• Decision Date: 08 April 1932
• Docket Number: No. 31464.,31464.
• Citation: 48 S.W.2d 853
• Court: Missouri Supreme Court
• Parties: SAMUEL BREADON ET AL., Appellants, v. ALICE JOSSUP PAUGH.

48 S.W.2d 853

SAMUEL BREADON ET AL., Appellants, v. ALICE JOSSUP PAUGH.

No. 31464.

Supreme Court of Missouri.

Division Two, April 8, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude P. Pearcy, Judge.

AFFIRMED.

T.M. Pierce and Samuel H. Liberman for appellants.

(1) The use of defendant's corner lot as offices by a group of physicians, and a dentist, conducting an institute or clinic thereon, violated the restrictions. Semple v. Schwarz, 130 Mo. App. 65, 109 S.W. 633; Barnett v. Vaughn Institute, 119 N.Y. Supp. 45; Smith v. Graham, 147 N.Y. Supp. 773; Strauss v. Land Co. (Mo.), 37 S.W. (2d) 505; Pierce v. Trust Co., 311 Mo. 262, 278 S.W. 398; Koehler v. Rowland, 275 Mo. 573; Sanders v. Dixon, 114 Mo. App. 299. (2) Evidence of waiver, abandonment, laches and estoppel was inadmissible because not pleaded. Scanlon v. Kansas City (Mo.) 28 S.W. (2d) 84; Bartlett v. McCallister, 316 Mo. 129, 289 S.W. 814; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359; Turner v. Edmonston, 210 Mo. 411, 109 S.W. 33; Central Natl. Bank v. Doran, 109 Mo. 40, 18 S.W. 836.

Frank J. Quinn and Frank Coffman for respondents.

(1) This court has no jurisdiction of this appeal, because the measure of jurisdiction in cases of this kind is the combined value in money of the relief to all plaintiffs; the pleadings, evidence and record disclose that such combined value of the relief sought to all plaintiffs is far in excess of seven thousand five hundred dollars. Aufderheid v. Polar Wave Ice & Fuel Co., 4 S.W. (2d) 794, 319 Mo. 337; Rombauer v. Compton Heights Christian Church, 40 S.W. (2d) 545. (2) And it is the duty of an appellate court to determine sua sponte the question of its jurisdiction at whatever step or stage of the proceeding that question obtrudes itself. City v. Construction Co., 212 S.W. 887. (3) Restrictive covenants are not favored in law, and where there is any substantial lack of clearness the doubt will be resolved in favor of the free use of the property. Bolin v. Tyrol Inv. Co., 273 Mo. 257. (4) And for the same reason the trial court did not err in dismissing plaintiff's bill.

WHITE, P.J.

The plaintiffs sought by injunction to restrain the defendants from using the defendant's lot in violation of certain building restrictions. Judgment was for defendant dismissing the bill and the plaintiffs appealed.

The defendant was the owner of Lot 16, Euclid Place, a subdivision of City Block 2963 of the city of St. Louis. In October, 1905, the Kenlee Realty Company, a corporation, owner of the said Block 2963, platted Euclid Place imposing certain building restrictions, among them the following:

"But one building, and the stable and subsidiary buildings thereto shall be erected or placed upon each lot, and such buildings shall never be used or occupied for any purpose except that of private residence exclusively, nor shall any part or portion thereof be used or occupied as flats, nor shall any lot or portion thereof ever be used or occupied for trade or business of any kind whatsoever, or for hotel or apartments, or boarding house purposes, excepting only the corner lots, which, in addition to use for residences, may also be used for offices of licensed practitioners of medicine or dental surgery, in the active pursuit of their professions."

Defendant acquired title to the lot by a deed reciting that the conveyance was subject to those restrictions.

Lot 16 Euclid Place was situated at the southeast corner of Westminster Place and Euclid Avenue, fronting 74 feet, 9 inches on Westminster Place, with a depth of 152 feet, 6 inches southward to the alley. The lot narrows to the south until at the alley it is only about 11 feet wide.

The amended petition upon which the case was tried alleged that the defendant had erected on that lot an "office building" intended and designed to be used for business purposes. The use is then described. The defendant's husband, Dr. Paugh, was an internist with an office in the building and she had permitted the building to be used by a surgeon, a specialist in eye diseases, a specialist treating the ear, nose and throat, a specialist treating genito-urinary diseases, a specialist in pediatrics, and a dentist, and that such use was in contravention of the restrictions set out above.

The suit was filed in October, 1928; the original files were offered in evidence. They do not appear in the abstract of the record, but it does appear from the colloquy in court on the objection to the introduction of the files that the original petition sought to restrain the erection of the building complained of; that a temporary restraining order was not granted at the time and the request for it was finally withdrawn.

The amended petition filed in May, 1929, sought only to restrain the use of the building. The prayer for relief was:

"That the defendant and each and every person acting under her and in her behalf be restrained from using the said lot or building thereon as an office building or from carrying on any trade or business or for any purpose other than a private residence exclusively and for such other relief as to the court may seem proper in the premises."

The building which the petition designated as an office building was a one-story structure having the appearance of a bungalow. The front on Westminster Place was used for residence. It was not occupied by Mrs. Paugh nor her husband, but by Mr. and Mrs. Baker, Mrs. Baker being laboratory technician for Dr. Paugh. The south part of the building was devoted to offices with the entrance on Euclid Avenue. It was separated from the residence part by a wall, and there was no access from the office part to the residence part. A sign was at the Euclid Avenue entrance, "Pre-Diagnostic Institute" with the names of some doctors and a dentist on it. The building was described by Dr. James H. Ready, who had one of the offices; he said there were six rooms, exclusive of the secretarial room, one room being used by the ear, nose and throat man, one by the dentist and one by the physio-therapy man, one room for X-rays and two consultation rooms. The structure was one story. Two or three witnesses, doctors, testified for the plaintiff to the effect that a Pre-Diagnostic Institute had formerly been Pre-Diagnostic Clinic; that the word "pre-diagnostic" was a term unknown to the profession. That a diagnostic institute was a clinic, and a clinic was a group of men combining together for the practice of medicine.

One witness. Mr. Kavanaugh, examined the building as it was being constructed. He explained the situation of the rooms; one reception room, a hall running straight through, and there were "six little offices, little bitty places; could not be used for anything except maybe a patient or two and a doctor."

The plaintiff introduced photographs of the building, the Westminster front and the Euclid Avenue entrance, and the photographs of handsome residences in the neighborhood. Plaintiff also introduced an announcement sent out by Dr. Paugh, as follows:

                                 "Announcement
                "After February 17, 1929, we will be located in our
                              own new building at
                            444 North Euclid Avenue
                       "Two blocks south of Delmar Blvd
                "P.G. Paugh, M.D.................................. Internist
                "Sam F. Wennerman. M.D.............................. Surgeon
                "Geo. L. Tonelli, M.D.................. Ear, Nose and Throat
                "L.M. Ochs, M.D. ....................................... Eye
                "J.H. Ready, M.D. .................. Genito-Urinary Diseases
                "Wm. S. Holycross, D.D.S. ........................ Dentistry
                "Telephone: Delmar 4870."
                

This showed the intended use of the building. Of the six names on this announcement, Dr. Ready testified that his office was on Shaw Avenue and not in this building. That he goes to the building to help Dr. Paugh, and that he has examined his own patients in the building, making X-ray examinations, and that he has no financial arrangements with Dr. Paugh; that he helps out Dr. Paugh and Dr. Paugh helps him; that he is not a specialist; that the announcement was sent out, however, without any objection on his part.

Dr. Sam Wennerman testified that he had his office in this building and engaged in the general practice of medicine and surgery; that he had no patients of his own, but helps Dr. Paugh treat patients on the premises and receives from Dr. Paugh a weekly salary.

Dr. Tonelli testified that his office is in the building; that he has some patients of his own whom he treats on the premises; that he has a financial arrangement with Dr. Paugh whereby he is compensated on a percentage basis; that he does not assist Dr. Paugh in internal medicine.

Dr. Holycross testified that he was a dentist and had his office in the building; that he does not purport to act as an assistant to an internist nor to a surgeon; that some of the patients employed the witness directly, and that the witness in lieu of paying rent to Dr. Paugh rendered certain services.

Dr. Ochs testified that he had no special office in the...