Momeier v. John McAlister, Inc.
| Decision Date | 03 September 1943 |
| Docket Number | 15575. |
| Citation | 27 S.E.2d 504,203 S.C. 353 |
| Parties | MOMEIER v. JOHN McALISTER, Inc. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Court, of Charleston County; E. H Henderson, Judge.
Action by George H. Momeier against John McAlister, Inc., and others for an injunction to restrain defendants from operating a funeral home in violation of a city ordinance. From a decree for plaintiff, defendants appeal.
The order of Judge Henderson, directed to be reported, follows In this case the plaintiff, George H. Momeier, seeks to enjoin the defendants from maintaining a funeral home, or from conducting activities in connection with an undertaking business, at the premises known as number 150 Wentworth Street in the City of Charleston, on the ground that at this location such use of the property is forbidden by the zoning ordinance of the City.
On questions of procedure the case has been to the Supreme Court twice, and these decisions are reported at 190 S.C. 529, 3 S.E.2d 606, and 193 S.C. 422, 8 S.E.2d 737.
The cause was referred to Honorable W. McG. Morrison, the Master for Charleston County, to take the testimony and to report it to the Court, and this report he has filed with the evidence taken by him. The case was fully argued before me in November, 1942, while presiding at Charleston.
In 1924, the General Assembly passed an act permitting cities to adopt what are usually termed zoning ordinances, regulating the location and use of buildings and lands for trade industry, residence or other purposes. Code of 1942, Sections 7390-7398.
Pursuant to this statute, the City of Charleston enacted a zoning ordinance on October 19, 1931, dividing the City into five so-called "use districts" or zones as follows "A" residence districts, "B" residence districts, business districts, light industrial districts and heavy industrial districts.
The lot in question, located at the northwest corner of Wentworth and Smith Streets, and known also as number 45 Smith Street, is in a "B" residence district.
The ordinance regulates the use which may be made of property in each of the districts, and in Section 7 of Article 2 it provides:
"A" residence districts are provided for in Section 6, of the same article:
As to what are "accessory uses" of property, among other things Section 8 provides:
The defendants, John McAlister, Inc., and McAlister Realty Company are corporations, in which the other defendants, James A. McAlister and John McAlister, are stockholders. James A. McAlister is a director of both corporations, is vice-president and general manager of the Realty Company, and president of John McAlister, Inc. In this decree they may all at times be referred to generally as the McAlisters. John McAlister, Inc., is engaged in the business of an undertaker and for many years has maintained an establishment at number 169 Meeting Street. On account of the congested traffic on that street, one of the defendants about the year 1933 endeavored to purchase a residence on Rutledge Avenue known as the Ficken property, with the intention of moving the entire business there. Application was made to the Zoning Board and a public hearing was had, after which the Board refused the petition. Thereafter, though well knowing that the property now in question, formerly known as the Edward W. Hughes home, was located in a "B" residence district, the McAlisters decided that it would be to their advantage to purchase that property and use it in their business as undertakers. The property was acquired in 1937. They did not make an application under the zoning law for a change in the use of the building, which had theretofore always been used as a residence. The deed to the property was not recorded for about ten months. Mr. James A. McAlister, one of the defendants, and his family moved into the building and live there now. The deed to the property is in the name of McAlister Realty Company. The property cost $16,000 and Mr. McAlister pays rental in the sum of $600 a year, which is about the amount of the annual taxes. Before buying the place, one of the McAlisters told Mr. Momeier and Mr. Hall T. McGee that they wanted it for the purpose of a funeral home.
The McAlisters use this property in connection with their establishment on Meeting Street. As a part of the charge made by them for burying people, the family of the deceased is given the privilege of having the body brought to the Wentworth Street property, leaving it there from one to three days, of having funerals there and funeral processions formed there, and of having the family and friends gather at that place. At the time Mr. McAlister testified, in August, 1940, from thirty-five to forty-five per cent of the dead bodies handled by the company were being taken to Wentworth Street, and this proportion was steadily increasing. While the number of funerals conducted at the Wentworth Street place was constantly growing, those at the establishment on Meeting Street were becoming fewer. The complete service charge covers the embalming and preparation of the body, conducting the funeral, the casket and services, hearse and limousines. At the time Mr. McAlister's testimony was given, nearly a year and a half ago, 263 dead bodies had been taken to the premises in question, and 85 funerals had been conducted there. Embalming is not done at the Wentworth Street establishment, and caskets, suits and dresses are not offered for sale there, but there is no other part of the business of a funeral home which is not conducted there. The testimony shows that the conducting of funerals is a part of the business of a funeral home, as is also the gathering of relatives and friends, and the forming of funeral processions to go to the church or graveyard, and that all of these things are carried on at the premises. The location was commonly referred to in the newspapers as the McAlister Funeral Home, though the funeral notices published by the McAlisters themselves always called it number 150 Wentworth Street.
The plaintiff, Mr. Momeier, resides at Number 47 Smith Street, just to the north of and adjoining the McAlister place. He and his family have resided there since the year 1910. The residence is built in the style of so many Charleston houses, with the end facing the street and with long verandas overlooking a garden. The house has three porches facing the south running across part of the building and directly overlooking the McAlister grounds. Between the two properties there is a brick wall, and there is also along the wall an old stable building and servants quarters, but this does not cut off the view from the second story and the third story piazzas where the members of the family are accustomed to sit. The plaintiff, his wife and two daughters testified that the activities conducted at the McAlister's place destroy the happiness and peace of their home, and make them unhappy and depressed. The defendant offered several witnesses who stated they did not object to living next door to this place and that the value of the plaintiff's property had not been impaired. I find that the value of the plaintiff's property has been impaired by the nearness of the McAlister establishment, as shown by the evidence of several real estate agents. Ministers of the Gospel testified that such activities conducted next door to a home would have a depressing effect, and physicians testified that such conditions would be undesirable and damaging to persons living next door. Many witnesses stated that they would not live next door to such a place and would not buy a home there.
While fully recognizing the fact that the vocation of an undertaker is an essential calling and is conducted with efficiency and kindness at a time of great distress, yet it is a fact, as the evidence...
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