Lohmuller v. Samuel Kirk & Son Co.

• Decision Date: 19 June 1918
• Docket Number: 14.
• Citation: 104 A. 270,133 Md. 78
• Parties: LOHMULLER et al. v. SAMUEL KIRK & SON CO.
• Court: Maryland Court of Appeals

104 A. 270

133 Md. 78

LOHMULLER et al. v. SAMUEL KIRK & SON CO.

No. 14.

Court of Appeals of Maryland

June 19, 1918

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by John W. Lohmuller and others against the Samuel Kirk & Son Company. From decree dismissing the bill, plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

William C. Coleman and Randolph Barton, Jr., both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellants.

Harry N. Baetjer, of Baltimore, for appellee.

THOMAS J.

The bill of complaint in this case was filed to enjoin an alleged nuisance, and the present appeal is from a decree dismissing the bill, after a hearing upon the bill, answer, and proof.

The plaintiffs, John W. Lohmuller, Vincent L. Palmisano, John W Prinz, and Martin Lehmayer, were engaged in the practice of law, with offices in the Calvert Building, located at the southeast corner of Fayette and St. Paul streets, in the city of Baltimore. Mr. Lohmuller, Mr. Palmisano, and Mr. Prinz have occupied rooms Nos. 463 to 469, on the fourth floor since February, 1916, and Judge Lehmayer has had his offices in rooms Nos. 563 to 569, on the fifth floor, directly above the offices of the other plaintiffs, since 1905. The Calvert Building fronts on Fayette street, and that portion of the building in which the plaintiffs' offices are located extends back to an alley, between 24 and 25 feet wide, known as "Bank Lane." The offices of the plaintiff extend about 30 feet along Bank lane, and have three windows opening on Bank lane and a window opening on an alley between the Calvert Building and the Equitable Building, just east of the Calvert Building. The defendant, the Samuel Kirk & Son Company, owns and occupies a large building known as Nos. 106 and 108 East Baltimore street, in which it carries on the business of buying, selling, and manufacturing jewelry silverware, and other valuable articles. This building, which is 50 feet wide and four stories high, extends from the north side of Baltimore street to the south side of Bank lane, and from one-third to one-half of the north end of the building is opposite the Calvert Building and the offices of the plaintiffs, and the remaining portion of the north end of the defendant's building is opposite the building of the New Amsterdam Casualty Company. The defendant's factory for the manufacture of silverware and for repair work is located on the fourth or top floor of its building, and at the north end of this floor the defendant has installed four iron hammers, used in the manufacture of repoussé silver. These hammers, which weigh about three pounds each, are suspended above a bench, and are operated by the foot of the silversmith. The fourth or top floor of the defendant's building is below the level of the fifth floor of the Calvert Building, and in the north end of the fourth floor of the defendant's building there are seven windows opening on Bank lane. The bench above which the hammers are suspended is opposite and about 10 feet from the third window from the east side of defendant's building, and this window, according to the plat filed with the record, is 30 feet and 9 inches from the east window of Judge Lehmayer's offices and 27 feet from the east window on the sixth floor of the New Amsterdam Casualty Company building. Henry Adams, a consulting engineer, and a witness produced by the plaintiffs, describes the use of these hammers as follows:

"These hammers are secured on a bench. They are, I think, four of them, and they are suspended-the hammers are suspended-about this bench, and at the edge of the bench there are bars, in the shape of a V, tapered bars, secured at the bench, and there is a small point at the end, tapered. Now, the hammer strikes near the support by foot power, as the operator sits there, and he can strike as strong a blow or as light a blow as he wants. He has his piece of silver on which the design is outlined in his hand, and he has a feeling-he touches his finger on the work and he moves that piece of silver over that point and strikes his blow continually, sometimes heavy and sometimes light, according to the design he wants to bring out. It is not a direct blow, it is an indirect blow. You hear the noise from the hammer here (indicating) and certain noise at the end of the bar. In the room itself when they are going, with the other machinery going, you do not hear that noise as penetrating as you hear it outside of the room."

Mr. Kirk, the president of the defendant company, gave the following explanation of the use of these hammers:

"I have drawings now that I have made myself of a device that I had hoped would lessen the noise and accomplish the same result, and, after talking with our mechanics and the foreman of our department and several of our men, it was found that if the devices were made and put in operation it would lessen the noise very little, and it would require the restraining of our entire force, as the snarling iron is the standard equipment, and it meant also that every chaser that we would get in from an outside source would have to be retaught, and, another thing it did, it eliminated the sense of feel that the present iron has, and therefore it would practically make it very difficult to do the work. *** I can explain it: The iron is held in a vise. It is a three-pound hammer, and the hammer is attached-the handle of that hammer is attached by a cord to a treadle that is held up by a spring, and on the other end is the spring that holds the hammer up. The hammer does not fall of its own weight; it falls on account of the blow, which is the weight of the man's foot as he puts it there. It is as near balanced as possible, almost like the scale. The piece of silver is put over the snarling iron, and the men hold either one or two fingers on the iron in order to guide it. The sense of feel in the first two fingers of their hand must be absolutely accurate and keen; otherwise they cannot judge what they are doing. For instance, a direct blow would not accomplish the same purpose. There is no other way to do it than the one way, and I think Mr. Adams will agree with me that that is true. We have studied every known method to try to reduce that noise, particularly since Judge Lehmayer's complaint, and we have spent a great deal of money in trying to relieve the situation."

Judge Lehmayer described the noise as he heard it in his office as follows:

"Well, these hammers when I am in my office, I suppose it would be as far away from me as one end of this courtroom is from the other, say about 30 or 35 feet, and they make a terrible noise. As for the windows (the windows in his office) being open, your honor, the windows are kept open very often in October, and on a day like this. The windows are open at this time and also sometimes in March and sometimes in April, and even in winter windows are kept open. It is true they are kept open only to a small extent for the purpose of ventilation. The noise is of such a character that it absolutely renders it impossible to use the offices when it is going on. It is intermittent. It used to go on day after day, but since this bill has been filed it has decreased. They do not use the hammers as much now, but before it was at all hours of the day; sometimes one hammer was going, sometimes two and sometimes three, three at one time. *** It is a peculiar penetrating noise. It goes right through you, it affects the nerves, it is a nerve-racking noise. It is almost enough to give you nervous prostration. No matter how hot it is, if you want to stay in my office you have to close the windows and keep them closed to carry on a conversation. I would have my stenographer at the opposite side of my desk dictating a letter to her, and all of a sudden these hammers would start, and that would be the end of it. I would either have to shut the windows or go in one of the further rooms that Mr. Binswanger occupies; he is a subtenant of mine. *** You cannot conduct an ordinary conversation while these noises are going on. You cannot hear a telephone conversation."

He also stated that the noise came in through the window opening on the alley between the Calvert Building and Equitable Building, and further testified as follows:

"Q. (By Mr. Baetjer): You mean the noise would come around there? A. Yes; the noise from the hammers; yes.

The Court: Around the corner?

The witness: Yes.

Mr. Coleman: There is a court there?

The Witness: Yes. That is almost as close as the other windows. You hear the noise there just as bad. When you strike iron on iron it gives a peculiar noise, but when that iron in turn strikes silver, it is a reverberating noise, almost enough to set you crazy."

Mr. Lohmuller, who, as we have said, occupied one of the offices on the fourth floor below the offices of Judge Lehmayer, and other witnesses, testified to the disturbing character of the noise to those occupying the offices of the plaintiffs when the plaintiffs' windows and the windows in the defendant's building were open, and the difficulty of carrying on a conversation over the telephone. Mr. Adams, the consulting engineer, who, by arrangement between the plaintiffs and the defendant, examined the defendant's factory, and tested the noise in Judge Lehmayer's office with the windows in his office and the defendant's building open, and while the hammers were being operated for the purpose of affording him every opportunity to do so, described the noise as follows:

"Judge Lehmayer was sitting opposite me at his desk, and I talked to him and it was very difficult; that is, annoying

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