Brown v. Hojnackl

• Decision Date: 05 March 1935
• Docket Number: No. 85.,85.
• Citation: 259 N.W. 152,270 Mich. 557
• Parties: BROWN et al. v. HOJNACKL et al.
• Court: Michigan Supreme Court

270 Mich. 557

259 N.W. 152

BROWN et al.

v.HOJNACKL et al.

No. 85.

Supreme Court of Michigan.

March 5, 1935.

Suit by James Brown and others against Felix Hojnacki and others. From a decree in favor of plaintiffs, Felix Hojnacki appeals.

Affirmed.

Appeal from Circuit Court, Ingham County, in Chancery; Leland W. carr, judge.

Argued before the Entire Bench, except NELSON SHARPE, J.

Cummins & Cummins, of Lansing, for appellant.

Hayden, Hubbard & Rathbun, of Lansing (Robert T. Arvidson, of Lansing, of counsel), for appellees.

NORTH, Justice.

This is a suit in equity by which plaintiffs seek to enjoin defendants from an alleged violation of restrictions covering lots composing McPherson's Saginaw street addition in the city of Lansing, Mich. Defendants Felix Hojnacki and wife are the contract vendees and the defendant Capitol Savings & Loan Company is the owner in fee and the contract vendor of a corner lot in this addition. Plaintiffs Brown own the property adjoining on the west and plaintiffs Miers own the property adjoining on the north. The restriction sought to be enforced reads: ‘No shop, factory, store, saloon, or business house of any kind; no asylum, hospital or institution of like or kindred nature shall be maintained on any portion of said land by any grantee.’

Defendant Hojnacki is a masseur and uses the residence on the corner piece of property in which to carry on his business. He holds himself out as competent to treat persons afflicted with paralysis, nervousness, rheumatism, skin diseases, sinus trouble, and like ailments. Incident to his work, Hojnacki caused a large sign to be erected on the front of the premises by which his business was advertised. In his work he is assisted by employees. He does not reside upon the premises himself, but he has a tenant who lives in the second story. There is testimony from which it appears that as a result of Hojnacki's carrying on his business with the public generally, a large number of people from day to day visit his place of business and are treated by him. Some of these people come in public conveyances, some in wheel chairs, and some on crutches. Many of the patients are crippled and disabled persons. Some are carried in by persons accompanying them. Incident to the treatments administered, alcohol and oils, followed by hot applications, are used. This necessitates the use of towels in large quantities and these become saturated with the rubbing oils, etc. Plaintiff's witnesses testified that the odor of the oils used was very offensive, but, on the other hand, some of defendants' witnesses found it pleasing. The method of treatment necessitates the laundrying of a large number of towels which are hung on lines for drying at the rear of the premises when weater conditions permit. So far as disclosed by the testimony, none of the other property composing this addition is used for the purpose of carrying on commercial or professional business. There is a doctor's office, also a music studio and a filling station not far distant from this property,but none of these is located on the McPherson...