Crutcher v. Taystee Bread Co.

• Decision Date: 04 October 1943
• Docket Number: 38271
• Citation: Crutcher v. Taystee Bread Co., 174 S.W.2d 801 (Mo. 1943)
• Parties: CRUTCHER v. TAYSTEE BREAD CO
• Court: Missouri Supreme Court

174 S.W.2d 801

CRUTCHER v. TAYSTEE BREAD CO

No. 38271

Supreme Court of Missouri, Second Division

October 4, 1943

McLemore & Witherspoon, of St. Louis, for appellant.

Bryan Williams, Cave & McPheeters, of St. Louis, for respondent.

OPINION

BARRETT, Commissioner.

Mary Crutcher, who owns the residence property at 4123 Cook Avenue in the City of St. Louis, brought this action in which she alleged that the Taystee Bread Company so operated its machinery and mechanical equipment, particularly a large ventilating fan, that it constituted a nuisance, irreparably injuring her property and her health. By way of relief she asked that the company be enjoined from so operating its machinery and ventilating fan and $ 15,000 damages. The whole cause was submitted to the trial judge, who entered this decree: 'Finding and judgment for defendant dismissing plaintiff's bill at cost of plaintiff,' and Mary Crutcher, the plaintiff, appeals.

Considering all the testimony, that given on the order to show cause as well as that given on the merits (including the descriptions of the noise made by plaintiff's phonograph record), the evidence of the respective parties was as follows, first, on behalf of the plaintiff:

In August, 1927, Mary Crutcher purchased the residence property at 4123

Cook Avenue for $ 8,750. At that time the Taystee Bread Company plant was in operation at the corner of Sarah and Cook Avenues, but there were two houses between the bakery and her home. Subsequently the bakery acquired the houses and land separating the two properties, removed the houses, and rebuilt its plant in such a manner that it covered the intervenient lots, one wall of the building being about three feet from the plaintiff's house. A short time after the plaintiff acquired the residence she remodeled it into kitchenette apartments and spent about $ 1,900 in improving it. There were six apartments and one or two single rooms to be rented aside from the plaintiff's own living quarters. She estimated that she usually received a monthly rental of $ 141.

In 1983 the bakery company installed a large 'airplane' type fan in the water cooling tower on the roof and several of the neighbors complained to the company and the Building Commissioner of its excessive noise and that fan was removed and another type fan was installed. In explanation of and to particularize the beginning of plaintiff's complaint she said:

'Q. So that ever since the fall of 1927, or the first of 1928 the plant has been just as close to your house as it is now? A. Yes, sir.

'Q. When did you first begin to notice any noise? A. I first noticed this noise in February, 1940. * * *

'Q. Prior to that time had you been disturbed by anything from the plant? A. No, I had not.

'Q. Did you ever complain to the plant about delivery trucks? A. I have not.

'Q. Never made any complaints to them at all? A. Not before this noise started; no, sir.

'Q. Did you make any complaints to the plant in the fall of 1939 with respect to the fan on the roof? A. When the fan was first installed the entire neighborhood of property owners went into the Building Commissioner's office and they complained about the noise, and I was told they exchanged that fan for a larger one; but from that time up until 1940, why, everything was very quiet.

'Q. There was no complaint made after they made that change? A. Up until 1940.'

After February, 1940, she heard noises continuously, day and night. She says the fan was about twenty-five feet from her building and very annoying when it is running, 'it sounds like an airplane in the gangway between my home and the bakery; and it is a roaring, knocking hum. * * * And the vibration of the fan sounds like hail up against the windows; and when it is running, on the inside it sounds like an approaching train. It sounds like a steam engine coming; and it jars the walls in my building. * * * The noise on the roof it is a humming, knocking noise. * * * But when it is running, on the inside of the building, why, it sounds like a big engine coming; and it jars the eaves of all of the house, and even the furnace pipe shakes.' She could not sleep when the fan was running and after the court ruled against her on the order to show cause the noise increased and she went elsewhere to get a few nights' sleep.

She called in a carpenter to determine what injury the noise and vibration had done the house and he found the doors and hinges of the doors and windows loosened and tightened them. An expert was called in to make a recording of the noise heard in various parts of the house. The record was played and she testified the sound produced was the noise heard in her home.

She said she was then under the care of a doctor and had been from time to time. She was more nervous since the fan was installed, walking disturbs her, talking too loud disturbs her and sometimes she eats and cannot swallow or retain food when she does eat. Dr. Walthall had been her physician for fifteen years and during the two and one-half years preceding the trial had treated her professionally. He said she had the grippe in 1940 and the effects of it left her back weak and 'she was involved with sciatic rheumatism and nervous stomach; * * * he treated her for rheumatism last year; that she was nervous; very nervous; that he found nervous indigestion, sciatic rheumatism the biggest trouble.' He heard the phonograph record played, had been in her home and heard similar noises and in answer to a hypothetical question thought the described circumstances had some connection with the pathological condition of his patient. He thought the noise could have some effect on her nervous condition. His prognosis was, 'I mean it is good as pertaining to life, but as to later complications it is guarded, because she may get into a rather neuresthenic condition.'

In support of her case there were fifteen or twenty witnesses. Friends such as Viola Beatty, Mrs. Williams and Catherine Yates said they had been in the Crutcher home on various occasions and they heard the humming, buzzing noise from the bakery. The noise they heard was comparable to the noise made by the phonograph record. Neighbors Charles Gibson, Virginia Mosby and Genevieve L. Huff had all heard the rumbling noise from the bakery and it was as recorded by the phonograph record. Then there was one, Ethelbert Schoulau, who had been a neighbor but had moved in 1939 and he had lost some sleep by reason of the noise from the bakery when he lived there. Tenants and former tenants Adela Humphries, Nettie Mae Nettles, Samson Strong, Theodore Hendricks, Beatrice Bady and Mose Washington had heard the noise from the bakery and some said the noise made by the phonograph record was the same or similar to the noise they had heard. Some heard the noise in 1939, some heard it in 1940 and some heard it up to the time of the trial. Mose Washington moved elsewhere because of the noise. The noise awakened Nettie Mae Nettles once, otherwise it didn't bother her.

In August, 1940, a police sergeant, Abel McAllister, and an officer, Otto Ferricks, heard a rumbling noise. It was not so loud when they were there the following February as it had been. A man who examined the house with a view to installing a heating system in 1940 heard the noises and the excessive vibration which he said could cause damage to the house but he did not examine the house for specific injury. He thought the fan and columns of air could and would cause the vibration. A representative of the Home Owners' Loan Corporation who was looking after a mortgage on the property heard noises from the bakery in 1940.

At the time of the trial the Iddell and Humphries families occupied the third floor apartments and the Humphries paid $ 6 a week for their apartment, the Iddells may have paid the same rent. The Walkers lived in the other apartment and they had been there 'a few months' at a rental of $ 6 a week. A Mr. Shaw had the single room on the third floor and he paid rent of $ 2.25 a week. The Nettles had a one room efficiency on the second floor and they had been there since October. The Hendricks paid $ 5 a week for the second floor rear apartment and had occupied it since November. The Mitchells had occupied a second floor apartment but had moved on Saturday prior to the trial's beginning. Mary Crutcher also gave detailed lists of the names of people who had occupied her apartments at various times during 1940 and 1941.

On behalf of the defendant, Taystee Bread Company, the evidence was as follows:

Milton F. Epstein, a representative of the Industrial Engineering & Equipment Company, manufacturers of hearing equipment examined the bread company's plant, described the machinery and heard no unusual noises. In answer to hypothetical questions, on cross-examination, he did not believe the mixing machines caused such vibrations as plaintiff's counsel...