Frederick v. Brown Funeral Homes, Inc.

• Decision Date: 28 April 1952
• Docket Number: No. 40705,40705
• Citation: 222 La. 57,62 So.2d 100
• Parties: , 39 A.L.R.2d 986 FREDERICK et al. v. BROWN FUNERAL HOMES, Inc. In re BROWN FUNERAL HOMES, Inc.
• Court: Louisiana Supreme Court

Page 100

62 So.2d 100

222 La. 57, 39 A.L.R.2d 986

FREDERICK et al. v. BROWN FUNERAL HOMES, Inc In re BROWN FUNERAL HOMES, Inc.

No. 40705.

Supreme Court of Louisiana.

April 28, 1952.

On Application for Rehearing Nov. 10, 1952.

G. Allen Kimball, Lake Charles, and Benj. W. Miller, Bogalusa, for relators.

Raymond H. Saal, Covington, for plaintiffs and respondents.

HAWTHORNE, Justice.

Plaintiffs-respondents, residents of the Town of Covington, Louisiana, instituted this action on December 7, 1951, to enjoin the proposed establishment and operation of a funeral home by defendant-relator at 1919 Theard Street in that town. The plaintiffs allege that they are property owners residing in the immediate vicinity of the proposed funeral home; that on October 27, 1951 (a little more than one month prior to the institution of this suit), defendant-relator acquired the lot and residence designated as No. 1919 Theard Street for the purpose of establishing a funeral home; that the area in which the proposed funeral home is to be located is strictly and exclusively a residential, church, and school area; that the establishment and operation of the proposed funeral home in a strictly residential neighborhood will be a nuisance because it will produce noxious odors, will create an atmosphere detrimental to the use and enjoyment of their homes, and will render them and their families physically uncomfortable; that the arrival and departure of mortuary wagons, hearses, and ambulances and the holding of funerals will serve as a constant reminder of death and will impair in a substantial way the comfort, repose, and enjoyment of their homes, will result in their mental annoyance, will produce upon them and the members of their households depressing effects, will depreciate the value and diminish the rental value of their property. They further allege that the establishment and operation of a funeral home in a strictly residential area is a nuisance per accidens or in fact by reason of the proposed locality, surroundings, or the manner in which such an establishment is conducted or managed, and they conclude that for these reasons they are entitled to be protected from the establishment of this proposed business or occupation as a nuisance because of the inappropriateness of its location.

Upon the filing of this petition the lower court ordered the defendant to show cause why a preliminary injunction should not issue, and after trial of this rule the court granted the preliminary injunction as prayed for by plaintiffs. Upon the refusal of the trial judge to grant a suspensive appeal--a devolutive appeal was granted--defendant applied to this court for writs. This court ordered the issuance of a writ of certiorari with a stay order and also ordered the respondents to show cause why the relief sought in relator's application for writs should not be granted.

In Borgnemouth Realty Co., Ltd., v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488, 490, this court recognized the distinction between a nuisance per se and a nuisance per accidens or in fact. We said:

"* * * A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become unisances by reason of circumstances and surroundings. * * * whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. * * *" (All italics ours.)

It is universally recognized that the operation and conducting of a funeral home, in itself, does not constitute a nuisance per se. See 3 Cooley on Torts, 4th Ed., sec 435, p. 180; Annotation, 87 A.L.R. 1061. This rule has been recognized in this state in the case of Moss v. Burke & Trotti, Inc., 198 La. 76, 3 So.2d 281. Plaintiffs-respondents concede this, but contend that the establishment and operation of such a business in a strictly residential area is a nuisance per accidens or in fact; that such a funeral home becomes a nuisance by reason of the inappropriateness of the place (a strictly residential area) in which it is established and conducted.

The greater weight of modern authority is to the effect that the establishment and operation of a funeral home in a strictly residential district is sufficiently objectionable to make it a nuisance in fact. The inherent nature of the business is such that, if located in a purely residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residential property in that it will produce a constant reminder of death, depress the residents of homes located in close proximity, materially impair the use and enjoyment of such homes, produce material annoyance and inconvenience to the occupants of adjacent property, and render them physically uncomfortable. Cooley, op. cit. supra; Annotation, 87 A.L.R. 1061, 1062; 54 Am.Jur., Undertakers and Embalmers, sec. 7, p. 512.

According to our research, the courts of 22 states have considered and passed upon the question of whether the establishment and operation of a funeral home should be enjoined in a strictly residential neighborhood. Nineteen of these states follow the majority rule set out hereinabove ¹, and three have adopted the view that a funeral home in a strictly residential district does not become a nuisance per accidens by the fact of its location in such a district. ²

In Higgins v. Bloch, 213 Ala. 209, 104 So. 429, 432, the Supreme Court of Alabama in affirming a decision of the lower court overruling a demurrer to the complaint had this to say:

'The respondents intend and propose, and are now carrying on the work, to establish and maintain the business of undertakers and funeral directors in Mobile, as is generally carried on in that city, and as is particularly described in the complaint, in a place exclusively used as a residential district. They are intruders by that business in that residential district. For more than 50 years, where respondents are locating their business, it has been and is now used for homes, and it is in the very heart of the most popular residence part of the city. It is in close proximity to, only a few feet from, the residences owned and occupied as homes for years by the complainants. * * *

'The home is a place for comfort and repose, where one can eat and sleep and spend the leisure hours with his family free, from business cares and anxieties. A citizen has a right to be protected in his home and in his right to the enjoyment of it. Death is an enemy of human life. 'The last enemy that shall be destroyed is death.' 1 Cor. xv:26. To see its effect is depressing to the ordinary, reasonable person. To see almost daily the hearse carrying in and taking dead bodies from this Leinkauf residence, to know the bodies were there being embalmed, disinfected from disease, probably contagious in its nature, to hear the singing of funeral hymns and psalms in the chapel of this residence, and to see the relatives and friends of the dead and hear their mourning, would have a depressing effect on the mind of a normal person, would continually remind complainants of mortality, would deprive them and their respective homes of the comfort, repose, and pleasure to which they as owners are each entitled, and it would have a tendency to weaken their physical resistance and render them more susceptible, probably to disease from the dead bodies therein if they were infected with contagious diseases. * * *'

In Saier v. Joy, 198 Mich. 295, 164 N.W. 507, 508, L.R.A.1918A, 825, the appellate court in affirming a judgment of the lower court enjoining the proposed establishment of a funeral home in a strictly residential area said:

'* * * We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person. Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person. Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance. There is an abundance of testimony in this record confirmatory of this, and it is a matter of common knowledge. The constant going and coming of the hearse * * *; the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs, held in the part of the house designed for a chapel; the unknown dead in the morgue, and the visits of relatives seeking to identify them; the thought of autopsies, of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal laymen--all of these are conducive to depression of the normal person; each of these is a constant reminder of mortality. These constant reminders, this depression of mind, deprive the home of that comfort and repose to which its owner is entitled.

'We cannot overlook the right to engage in a lawful trade, nor the fact that the conduct of the undertaking business is not only lawful, but highly necessary, nor that it is not a nuisance per se. Nor can we overlook the right of the citizen to be protected in his home, and his right to the enjoyment there of that repose and comfort that are inherently his. The question here is not the restraining of defendants' business, but the restraint of its intrusion into a long-established and strictly residential district. * * *'

In Williams v. Montgomery, 184 Miss. 547, 186 So. 302, 303, it was said:

'This funeral home was conducted in a modern manner and was sanitary.

'It is our own conclusion, based upon the...