Distasio v. Surrette Storage Battery Co.
| Decision Date | 29 April 1944 |
| Citation | 54 N.E.2d 928,316 Mass. 133 |
| Parties | PAULINE DISTASIO v. SURRETTE STORAGE BATTERY CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 7, 1943.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, RONAN, & WILKINS, JJ.
Nuisance. Equity Pleading and Practice, Findings by judge, Inferences, Appeal.
On appeal in a suit in equity without a report of the evidence, this court may draw proper inferences from material facts found and reported by the trial judge under G. L. (Ter. Ed.) c. 214, Section 23.
Findings in a suit in equity to enjoin a nuisance and for damages, that noise odors, smoke and vibration from the defendant's factory had been offensive to ordinary persons and had caused damage to the plaintiff in a certain amount, although, after improvements were made by the defendant, odors, smoke and vibration were not sufficiently offensive to entitle the plaintiff to damages or an injunction respecting them; and that, even after the making of the improvements, noise from the factory, which could have been reduced by further changes, continued to be offensive to ordinary persons and a nuisance, warranted an inference of unreasonable conduct on the part of the defendant, both before and after the making of the improvements, and justified a decree awarding damages for the period preceding the making thereof and, after a period allowed the defendant for reduction of the noise enjoining the operation between the hours of 11 P.M. and 7 A.M. of certain machinery which produced the noise.
It is not open to the appellant from a decree in a suit in equity to complain that the trial judge, who made and reported findings of material facts under G. L. (Ter. Ed.) c. 214, Section 23 without a report of the evidence, ought specifically to have made an additional subsidiary finding.
BILL IN EQUITY, filed in the Superior Court on February 7, 1941. The defendant appealed from a final decree entered after a hearing by Brogna, J.
The case was argued at the bar in December, 1943, before Field, C.J., Donahue, Lummus, Qua, & Cox, JJ., and, after the retirement of Donahue & Cox, JJ., was submitted on briefs to Dolan, Ronan, & Wilkins, JJ.
Lee M. Friedman & C. W. Spencer, for the defendant. H. A. Simon, for the plaintiff.
This bill is brought to enjoin an alleged nuisance in the carrying on of the defendant's battery manufacturing plant in the vicinity of the plaintiff's residence in Salem, and for damages. The evidence is not reported, but the judge made findings of material facts. G. L. (Ter. Ed.) c. 214, Section 23. He took two views of the premises, one of them in the night time.
From findings which need not be recited in detail it appears that the defendant's factory and the plaintiff's house are located on or near the line of demarkation between an area devoted to industrial uses and an area devoted to residential uses. There are properties of both characters in the vicinity. The plaintiff's house is about sixty feet from the defendant's engine room and is on the opposite side of the street. The defendant operates four diesel engines. Some of these engines and their generators are in operation all the time. About seventy-five per cent of the defendant's product is for the army and navy. When the judge took his view at night, "a constant murmur or rumble and a continuous tapping or drumming" could be heard at least two hundred fifty feet from the engine room. The noise, especially during warm weather when people keep their windows open, is "offensive, discomforting annoying and harmful to ordinary persons situated as the plaintiff is." In his findings the judge referred to this condition as a nuisance. He found that if equipment to suck air into the engine room is installed and the windows eliminated the noise will be greatly reduced. He further found that fumes, smoke, and vibration, in addition to noise, had caused the plaintiff and others such discomfort, annoyance, and irritation of the throat as would affect persons of ordinary sensibilities, and that vibration had caused physical damage to the plaintiff's house, but that after the defendant had made improvements "the odors, the smoke and the...
To continue reading
Request your trial