Fraser v. Fred Parker Funeral Home

• Court: South Carolina Supreme Court
• Writing for the Court: MR. CHIEF JUSTICE BONHAM:
• Citation: Fraser v. Fred Parker Funeral Home, 201 S.C. 88, 21 S.E.2d 577 (S.C. 1942)
• Decision Date: 02 July 1942
• Docket Number: 15436.
• Parties: FRASER et al. v. FRED PARKER FUNERAL HOME.

21 S.E.2d 577

201 S.C. 88

FRASER et al. v. FRED PARKER FUNERAL HOME.

No. 15436.

Supreme Court of South Carolina

July 2, 1942

Appeal from Common Pleas Court of Colleton County; G. B. Greene Judge.

Suit by O'H. Fraser and others, and all other persons similarly situated, against the Fred Parker Funeral Home to enjoin the operation of a funeral home in residential area of town. The case was referred to a special master. The special master found that the operation of the funeral home did not constitute a nuisance and recommended that a permanent injunction be denied, and that the complaint be dismissed. To that report the plaintiffs filed exceptions, directed to the issue whether the operation of the funeral home was a private nuisance. From a decree of the court of common pleas in favor of the plaintiffs, the defendant appeals.

The opinion of the common pleas court, G. B. Greene, Judge follows:

This suit came on for hearing before me at the April, 1941, term of Court at Walterboro, but was continued to be heard at Allendale on April 22, and there, by agreement of all the parties, it was marked heard and the hearing completed at Anderson, South Carolina, on the 5th day of May, past, and taken under advisement.

Soon after the suit was commenced, Judge J. Henry Johnson heard arguments on the demurrer which had been filed to the complaint and on the motion for an injunction pendente lite and in a most elaborate opinion and order overruled the demurrer and granted the temporary injunction which had been applied for. He also entered a general order of reference referring the issues involved to R. P. Searson, Esquire, of Allendale, as Special Master. The reference was held, much testimony taken, and the Special Master has filed an able and most interesting report.

It appears that the defendant about December 19, 1939, removed its business from the business district and commenced the operation of an undertaking establishment in the residential area of the Town of Walterboro, in which area are located the residences and homes of the several plaintiffs, and these twelve plaintiffs seek an injunction against the defendant on the ground that under the circumstances the maintenance and operation of this undertaking establishment by the defendant constitutes a private nuisance and materially and unlawfully interferes with their use of their several properties as residences and homes. The defendant files its answer, and the only issue involved is as to whether the defendant's operation of its undertaking establishment at this particular location constitutes a private nuisance. The Special Master finds that the operation of the undertaking establishment by the defendant does not constitute a nuisance and recommends that the application for a permanent injunction be denied, and that the complaint be dismissed. To this report the plaintiffs file exceptions, some nineteen in number, but they all, as a matter of fact, are directed to the single issue (which is a mixed issue of fact and law) as to whether the operation of the undertaking establishment by the defendant in this particular location and under circumstances as revealed by the evidence is a private nuisance. The defendant files no exceptions.

The Master has found that the portion of Wichman Street, in the Town of Walterboro, to which the allegations of the pleadings are related, is a residential area, and that the plaintiffs in this cause are normal, reasonable, sensible people. No exceptions are taken to these findings, and, therefore, these are determined facts in so far as this hearing is concerned. It appears that this immediate section is some several blocks east of the business area of Walterboro, and that except for the location of some two or three Churches (which fact does not militate against the idea of the area being a residential area), there are no institutions other than residences along the portion of Wichman Street where these plaintiffs reside and where the defendant has its undertaking establishment. The only exception at all to this is a small shop in the corner of the yard of one of the plaintiffs, which is used intermittently and more with the idea of recreation than that of business. It further appears that the building now used as an undertaking establishment by the defendant was many years ago constructed as and for a residence, and was used exclusively as such until it was purchased by the defendant's manager some two years before the establishment of this undertaking business, and it was renovated and continued to be used by the manager of the defendant, Mr. Fred Parker, as a residence for his family until December, 1939, when he moved his undertaking business to his residence and constructed a small building in the yard thereof for a garage and display room for caskets, etc., so as to accommodate the premises to the operation of his undertaking establishment upon the lot, and continued to live in a part of the house with his family. Though the lot is owned by Mr. Parker, the manager of defendant, the undertaking business is incorporated and appears as the defendant in this action. I further find that this residence now so converted into an undertaking establishment is located approximately one hundred feet right in front of and across the street from the building owned by the plaintiff, Tommie C. Smoak, which is occupied and used by her and her family as a place of residence or home. The defendant has, in a commendable manner, given heed to some of the complaints of his neighbors against some of his practices, but has refused to agree to remove the operations of his undertaking establishment to some place outside of this particular area. However, I do find that with all the consideration that the defendant's manager has evidenced toward his neighbors, the operation of this undertaking establishment as now located has materially, tangibly and substantially injured the plaintiffs in their lawful use of their several properties. Its operation has caused depressing feelings to the plaintiffs, has been a constant reminder of death, has appreciably impaired their happiness, and with some has apparently weakened their powers to resist disease, has depreciated the values of their properties, and has materially interfered with the use of their several residences as homes, impairing their comfort and happiness, and the comfort and happiness of the members of their families.

I further find that there has been nothing about the operation of this undertaking establishment that would differentiate it from the ordinary undertaking establishment in its operations; that the defendant is now conducting approximately one hundred and twenty (120) funerals a year that is, an average of one about every three days, and that though comparatively few of these funerals are held from this particular location, nevertheless, all of the embalming and preparation of the bodies is done at this particular house; that bodies are kept there for varying periods; that in nearly every instance the members of the family come to this establishment for the purpose of making arrangements, buying coffins and caskets; that on occasions bereaved relatives are noticeably audible in their laments; that the hearse does go to and fro; that a bright light is made to shine in the back yard when bodies are brought in at night, and when at night there are other activities incident to the business, and that without attempting to anticipate what additional activities will develop as this business grows, the handling of this number of funerals during the year would indicate that on a vast majority of the days in the year there would be such activity around this establishment as would constantly remind those residing near of death and the gruesomeness of the defendant's occupation. It takes no stretch of imagination to appreciate the reality of this disturbance and injury to the comfort and happiness of a home, and particularly the effect on young children in a home, when you visualize such an institution across the street approximately one hundred feet from your own residence. I do not want to leave the impression that I consider the operation of an undertaking establishment lacking in honor, desirability and service. I have observed with a great deal of appreciation the fine service rendered by undertakers in taking bodies of our dead away from our homes for embalming purposes and for preparation for burial, thereby materially relieving the occupants of the homes of the deceased of the consciousness of the gruesomeness of the operation of embalming and such preparation. However, the gathering in of the dead of a county to one spot, and that in a residential area, such as described in the testimony in this cause, with its attendant injuries to the plaintiffs, cannot be justified by the fine service that is done for those who are in bereavement. One of the essentials of a well ordered home is cheerfulness, and as the defendant's manager testified, "I would not be gay around people in distress." Those activities and incidents of plaintiffs' homes which add substantially to their cheer have been and will hereafter be materially interfered with due to the normal, natural and commendable respect which the plaintiffs have and should have for the dead at the defendant's establishment and their relatives. In this particular case, there is substantial and convincing evidence as to the effect of the operation of this undertaking establishment upon those in the immediate neighborhood; depression, nervousness, lying awake at night, children made excited, children alarmed and insisting on sleeping with their parents, families changing their sleeping quarters, families ceasing to use their porches as open air dining...