Hatcher v. Hitchcock
Decision Date | 09 November 1929 |
Docket Number | 28,755 |
Citation | 129 Kan. 88,281 P. 869 |
Parties | A. R. HATCHER, J. M. THRALLS, GEORGE MORTON, MARY BROCKMAN, M. E. MASON, BESSIE M. BURNETT, ELLA CAMP, HATTIE SCARBOROUGH, J. W. RUTHERFORD, B. A. BUSSARD and MARY E. MADDY, Appellees, v. ROY HITCHCOCK, Appellant |
Court | Kansas Supreme Court |
Decided July, 1929.
Appeal from Sumner district court; OLIVER P. FULLER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NUISANCES--Undertaking Establishments. An undertaking establishment in a residential district of a city may be a nuisance to the people residing in the immediate vicinity and enjoined in consequence. Following Leland v. Turner, 117 Kan 294, 230 P. 1061, and cases there cited.
2. SAME--Effect of Particular Surroundings. The establishment of an undertaking and embalming business and for the conducting of a funeral home in close proximity to a preestablished hospital may have so depressing an effect upon the sick and diseased inmates thereof that injunction may properly be invoked for its prevention or abatement.
3. SAME--Evidence. Error assigned on the insufficiency of the evidence to support the judgment considered and not sustained.
A. M. Ebright, J. B. Patterson, Allen B. Burch, P. K. Smith, all of Wichita, and Wendell Ready, of Wellington, for the appellant.
H. W. Goodwin, of Wellington, for the appellees.
This was an action to enjoin the establishment of an undertaking business and funeral home in the vicinity of plaintiffs' residences in Wellington. One of the plaintiffs, Doctor Hatcher, a physician, had a private hospital as well as his private residence in close proximity.
Plaintiffs' petition recited the pertinent facts and prayed that defendant's threatened establishment be declared a nuisance and enjoined as such.
Defendant's answer admitted that he had purchased property adjacent to that of some of the plaintiffs and that his purpose was to remodel it into a funeral home, but he denied that it was or would be a nuisance to plaintiffs or would depreciate the value of their property. Defendant also denied that the locality where he proposed to establish the funeral home was exclusively a residential district. He also pleaded that the principal business district some three or four blocks to the south is gradually growing in that direction; that immediately across the street is the county courthouse and jail, and in the block south of the courthouse there is a law office, two filling stations, a funeral home, and the office of an osteopath. Defendant further pleaded that prior to the institution of this action he had secured a building permit under a pertinent city ordinance authorizing him to remodel the property for the use of a funeral home. It was also alleged that defendant proposed to use all the best modern standards in the construction and maintenance of the proposed establishment and to employ only licensed embalmers and funeral directors and to conduct the business in strict accord with the statutes and the rules of the state board of health. The answer also set up the pertinent city ordinance which declared it to be unlawful to keep "any livery stable, dairy, undertaking establishment, morgue or dead house" on any residence street; and this ordinance defined a residence street as one where not less than 75 per cent of the frontage on both sides of the street was used or sold for residential purposes.
On the issues joined the cause was heard at length. No material dispute of fact was developed by the evidence. Photographs used at the trial are reproduced for our inspection. They show that the east front of the block facing the courthouse is occupied by substantial residences except on the southeast corner, where Doctor Hatcher's hospital is located. It is a substantial three-story structure. The houses, shade trees, sidewalk, parking and paving thereabout are typical of the better-class residential sections of any thriving county-seat town. It is one of these residences about the middle of the block which defendant threatens to remodel into an undertaking establishment.
The defendant, in part, testified:
. . . .
Plaintiffs adduced substantial testimony that the conduct of an undertaking business in their midst would materially lessen their enjoyment of their homes, and would depreciate the market value of their properties. Touching the effect on the hospital and its patients Doctor Hatcher testified:
Examination by the Court:
The trial court made findings as follows:
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