Magel v. Gruetli Benevolent Society of St. Louis
| Decision Date | 03 February 1920 |
| Citation | 218 S.W. 704,203 Mo.App. 335 |
| Parties | CHARLES MAGEL et al., Appellants, v. THE GRUETLI BENEVOLENT SOCIETY OF ST. LOUIS, a Coporation, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
August Walz and Chas. F. Krone for appellants.
(1) The pleadings and the evidence for plaintiffs make out a complete and convincing case of nuisance entitling them to an injunction in equity as prayed without any preceding judgment at law declaring the nuisance. Baker v. McDaniel, 178 Mo. 447, 467 et seq.; Hall v. Morton, 125 Mo.App. 315-322; Blackford v. Heiman Co., 132 Mo.App. 157; Bradbury Co. v. Laclede Co., 128 Mo.App. 96; Hayner v. Excelsior Co., 129 Mo.App 691; Fischer v. Missouri Ry., 135 Mo.App. 37-40; Powell v. Brookfield Co., 104 Mo.App. 713; Beck v. Ferd Heim Co., 167 Mo. 195; Hugenslock v Nishnabota, 163 Mo. 198, 222; Paddock v Sommers, 102 Mo. 237; Perdin v. St. Louis, 131 Mo. 28-115; McNair v. Biddle, 8 Mo. 257; Holland v. Anderson, 38 Mo. 55; Newham v. Kenton, 79 Mo. 382; Sharkey v. McDermott, 91 Mo. 647; Schneider v. Patton, 175 Mo. 684. (2) The terms of a decree in injunction must be sufficiently definite and specific to enable those bound by it to know what they may do and what they may not do, and must not leave open to difference or controversy the doing or not doing of acts as they may or may not have the effects which the complaint avers are the result of the specific acts or definite conduct pleaded. It will not do to enjoin the acts if they should disturb plaintiffs when the allegations are that certain specific acts do disturb them. In re Heffron, 179 Mo.App. 639, 658-659; Rumsey v. People's Ry. Co., 144 Mo. 174; Evans v. Gibson, 29 Mo. 223, 226-227; Miltenberger v. Morrison, 39 Mo. 71; Ver Straeten v. Lewis, 77 Iowa 130; (3) The judgment must pass on the issues raised by the pleadings and presented by the evidence in their support, and it is error for the court to refuse to adjudge any such issue. Evans v. Gibson, 29 Mo. 223, 226-227; Miltenberger v. Morrison, 39 Mo. 71. (4) The issues in a suit for injunction must be passed on under and upon the facts existing at the time of the bringing of suit and not upon those which may prevail at a time subsequent thereto, after changes have occurred or alterations have been made, nor can a defendant, by making alterations subsequent to suit brought defeat it, if it be otherwise meritorious. Donnelly v. Smith, 128 Iowa 257; Halfman v. Spreen, 75 Iowa 309; Judge v. Kribs, 75 Iowa 183; Dounes v. Holtz, 74 Iowa 389. (5) The habitual illegal sale of liquors, and especially so on Sunday, by a benevolent corporation or voluntary association is illegal and per se a nuisance, which will be enjoined when it injures property, at the suit of the owner. R. S. 1909, Secs. 7216-7188; State ex rel. v. Missouri Athletic Club, 161 Mo. 576-602; Detroit Co. v. Barnett, 156 Mich. 385; Haggart v. Stehlin, 137 Ind. 43; Kissel v. Lewis, 156 Ind. 233; State ex rel. v. Lamb, 237 Mo. 437, 456; Sullivan Realty Co. v. Crockett, 158 Mo.App. 578-581; State v. Uhrig, 14 Mo.App. 413, 48 L. R. A. 596. (6) The lawful sale of liquors, when coupled with disorderly conduct and profane language about the premises at which they are sold, is a nuisance, which, when it inflicts special injury on private property, will be enjoined at the suit of the owner. State ex rel. Kleinschmidt v. Moon (April 2, 1918), 202 S.W. 606; State ex rel. v. Moffet, 194 Mo.App. 286; Kissel v. Lewis, 156 Ind. 233; State v. Springfield Gas Co., 204 S.W. 945. (7) The use of a bowling alley in connection with premises used as a dramshop or for the illegal sale of liquors, is itself illegal and a nuisance per se. R. S. 1909, sec. 7224. (8) The Supreme Court may alter or amend a decree rendered by the trial judge to make it conform to the pleadings, evidence and demands of equity. Darrier v. Darrier, 58 Mo. 222; Pettingill v. Jones, 30 Mo.App. 280; Widdicombe v. Childers, 84 Mo. 382; Rice v. Shelpey, 159 Mo. 399.
Lowenstein, Scherer & Sievers for respondent.
(1) Every person may exercise exclusive dominion over his own property of every description and has the right to enjoy it in all the ways and for all the purposes in which such property is usually enjoyed, even though it works an injury to the property of others, provided his use thereof is reasonable and does not prejudicially affect the rights of others. While an unreasonable, unwarrantable or unlawful use of one's property resulting in the obstruction or injury to the rights of another may amount to a nuisance, it is well settled that before an injunction can be granted, the existence of the nuisance and the injury must be clearly established. 1 Wood on Nuisance, (3 Ed.), secs. 1 an d2; 2 Wood on Nuisances, (3 Ed.), sec. 820; Baker v. McDaniel, 178 Mo. 447, 468; 29 Cyc, p. 1225. (2) One who uses his building in a lawful and proper manner is not guilty of a nuisance merely because the particular use which he seeks to make of it may cause inconvenience or annoyance to a neighbor. The test of a nuisance is whether it is of such character as would likely be physically annoying to a person of ordinary sensibilities and not whether it would annoy persons of extreme or unusual nervous ness. 29 Cyc. page 1159; 2 Wood on Uuisances, (3 Ed.), secs. 617 and 800; Louisville Coffin Co. v. Warren, 78 Ky. 400; McCaffrey's Appeal, 105 Pa. 253, 257; (3) While appellate courts in an equity case are not bound by the findings of the lower courts; where the evidence is oral and conflicting, the appellate courts defer to the findings of the Chancellor on all issues of fact and will not disturb his findings, unless manifestly wrong, as he had the witnesses before him and could judge their credibility from their appearance and demeanor on the stand. Vaughan v. Vaughan, 251 Mo. 441, 447; Wyrick v. Wyrick, 162 Mo.App. 723; Phillips v. Trust Co., 214 Mo. 669; Creamer v. Bivert, 214 Mo. 473; Huffman v. Huffman, 217 Mo. 182; Jones v. Thomas, 218 Mo. 508; Sedden v. Trust Co., 146 Mo.App. 126; St. L. and S. F. R. Co. v. Yankee, 140 Mo.App. 274; 29 Cyc, p. 1253. (4) Qualified decrees are to be commended, for the freedom of one person ought not to be curtailed more than the right of relief of the other demands. The relief to be awarded rests in the sound discretion of the court, and appellate courts will not interfere with the decisions of the trial courts unless the abuse of that discretion is clearly shown. Sharkey v. McDermott, 91 Mo. 647, 657; Blackford v. Construction Co., 132 Mo.App. 157; Schaub v. Construction Co., 108 Mo. 122; 29 Cyc, pp. 1248 and 1253. (5) An injunction will not be granted where a nuisance has been abated in good faith, unless it has been but partially abated or there is danger of its recurrence. In the case at bar certain constructional changes were made in the bowling alley, after the hearing had begun, with the knowledge of the court and by consent of the parties. The court found that there was not such noise caused by the bowling alleys as to disturb the plaintiffs. 2 Wood on Nuisances, (3 Ed.), sec. 800; 29 Cyc, p. 1250; Perry v. Howe, 125 Iowa 415, 418. (6) The decree granted by the court with reference to the baths, language and conduct follows almost verbatim the prayer for relief as set out in plaintiffs' petition. If this decree is erroneous, the error was invited by the appellant in not clearly setting out in the prayer the relief desired, and they cannot now be heard to complain thereof. Price v. Town of Breckenridge, 92 Mo. 378; Schaub v. Construction Co., 82 S.W. 1095; Mitchell v. Wabash Ry. Co., 97 Mo. 411. (7) The prayer for relief in plaintiffs' petition does not ask that the sale of liquors on defendants' premises be enjoined; they should not now be heard to complain of the fact that no mention thereof is made in the decree. If such sale ever constituted a nuisance, it has been forever abated by the operation of national prohibition, and this court will not now indulge in formulating an idle decree, when there is nothing to enjoin. Schaub v. Construction Co., 82 S.W. 1095, 1096; Perry v. Howe, 125 Iowa 415, 418; Pomeroy's Equity, sec. 1357. (8) The dispensing of liquors on defendants' premises was in all respects lawful and constituted no nuisance. But even if a nuisance were created in this manner it would be a public nuisance, and before plaintiffs could obtain an injunction they must establish that they have suffered a special and different kind of injury thereby from that suffered by others in that locality. And inasmuch as plaintiff, who was a member of defendant association, and drank there, thereby helped to create such nuisance, if it was one, he should not be heard to complain thereof. Warren v. Cavanaugh, 33 Mo.App. 102; Glaessner v. Brewing Association, 100 Mo. 509; Baker v. McDaniel, 178 Mo. 447; Bothe v. C., B. & Q. R. Co., 181 Mo. 720; Hodson v. Walker, 170 Mo.App. 632. (9) The defendant is a bona-fide social organization, not incorporated for profit, and not designed to violate or evade the law, and the sale of liquor by such organization to its members is not a violation of the dramshop law within the meaning of section 7188 of the Revised Statutes of 1909, and defendants' institution cannot be closed up or enjoined for individual isolated acts of its patrons, especially when it has been established that defendants maintained their affairs and their building in a highly proper and respectable manner. State ex rel. St. Louis Club, 125 Mo. 308; State ex rel. Moffett, 194 Mo.App. 286.
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