Jenner v. Collins

• Decision Date: 21 May 1951
• Docket Number: No. 37952,37952
• Citation: 211 Miss. 770,52 So.2d 638
• Parties: JENNER et al. v. COLLINS et ux.
• Court: Mississippi Supreme Court

Page 638

52 So.2d 638

211 Miss. 770

JENNER et al. v. COLLINS et ux.

No. 37952.

Supreme Court of Mississippi, Division A.

May 21, 1951.

Deavours & Hilbun, Laurel, Stanton Hall, Hattiesburg, Ernest W. Graves, Laurel, for appellants.

Melvin & Melvin and Welch, Cooper & Welch, all of Laurel, for appellees.

LEE, Justice.

E. and C. Jenner, a copartnership trading and doing business as Laurel Drive-In Theater, in August 1948, erected their theater on land about one fourth of a mile from the home of Mr. and Mrs. T. U. Collins. After the show began operating, Collins repeatedly complained that the noise was disturbing him. In the fall of 1949, he and his wife filed suit to enjoin the operation, as a nuisance, and to recover damages. The answer denied all of the allegations of the bill. In the trial, the injunctive feature was abandoned. On the final hearing, the court decreed damages in the amount of $467. The Jenners appeal.

The assignment of errors goes solely to the sufficiency of the evidence. The appellants contend that the decree is against the overwhelming weight of the evidence. Consequently a statement of the substantial facts is necessary.

The picture screen was about 30 feet wide by 40 feet long, and was built on a somewhat larger structure. It was about 220 feet from the projection room from which the speaker system was controlled. There were wings on each side of the screen to protect against other lights. There were 170 odd speakers which were set up on poles about 3 1/2 feet high. Each of these accommodated two cars. The vast majority of the patrons attended the theater in their automobiles, though there were some benches in the rear which could be used by persons not in cars.

Appellee, T. U. Collins, testified that, from early evening until ten or eleven o'clock at night in the showing of the pictures, there were noises, talking, music, firing of guns, shooting, and screaming of women. He thought that such sounds emanated from the screen, but the defense claimed that no large amplifiers were ever used. He and his wife were greatly disturbed, and could not rest. They were unable to keep the noise out even with the doors shut and the windows down. Mrs. Collins was suffering from high blood pressure. On his first complaint, the operator promised 'to see about it', but the condition was not remedied. Two other complaints went unheeded. Shortly after suit had been filed, there was a change whereby the speakers were placed in the cars and the noises were largely abated, since the patrons could then regulate the tone themselves. After this change, only 27 of the out-of-car speakers remained.

Thirteen other witnesses were introduced in support of the complaint. One of them living about a fourth of a mile away heard shrill sounds like airplanes and ambulances. He also made complaint to the management. Another, living about 100 feet away, testified that the condition was bad, due to talk, singing, shooting, shouting, explosions, and wrecks. Another, living three fourths of a mile from Collins, testified that he could hear talking and music over the loud speaker, and that it interfered with sleep and rest. Another, living about two miles away, said that he could hear the music, and at times it was a 'jumble'. Another, about 500 feet away, heard screaming, shooting, airplanes and sirens. He was unable to sleep on account of the noise and had to keep his doors closed. Another, about 150 feet away, heard hollering, screaming, horns blowing, sirens, and guns shooting. He had to keep his doors shut and windows down. Another, about 250 feet away, heard like noises from the speakers, and had to keep the doors shut and windows down. This witness could not sleep and was miserable. The evidence of the other witnesses was corroborative.

E. Jenner testified for the appellants. He admitted that Collins complained to him, and that the sound was turned down. He also admitted that he stood outside Collins' house and heard the sound, but said that it was very low. After the new speakers were installed, no sound was audible. Twenty-nine other witnesses, living at various distances from the theater, testified for the appellants. Many of these admitted that they could hear the noise before the new speakers were installed, but stated that it was not disturbing to them. Others...