Mutual Service Funeral Homes v. Fehler, 6 Div. 981
Decision Date | 22 June 1950 |
Docket Number | 6 Div. 981 |
Citation | 48 So.2d 26,254 Ala. 363 |
Parties | MUTUAL SERVICE FUNERAL HOMES v. FEHLER et al. |
Court | Alabama Supreme Court |
S. A. Lynne, of Decatur, for appellant.
Finis E. St. John, of Cullman, for appellees.
This is an appeal from a decree of the equity court overruling the demurrers of Mutual Service Funeral Homes, a corporation (appellant), to the bill of complaint of George Fehler and others (appellees). The purpose of the bill is to enjoin the establishment, maintenance or operation of a funeral parlor or undertaking establishment in a residential section in the City of Cullman, Alabama.
The allegations of the bill show in substance that the respondent purchased certain lots on the corner of Young Street and Fourth Avenue East in the City of Cullman, which were owned and occupied as a residence by Emil W. Buettner, and is preparing to convert the residence upon the lots into an undertaking establishment or funeral parlor, that the property involved is located in an area of the City of Cullman which is and has been an exclusively residential area since the founding of the city, some of the finest homes of the city being therein located.
The bill further shows in substance that the homes of the complainants are situated in the foregoing residential area, some on Young Street and some on Second Avenue East. Some of these homes are immediately across the street from the site of the proposed establishment and all are in such proximity to the proposed establishment as to have a clear view thereof. The bill further shows in substance that from such proposed establishment a great many funerals for the dead are conducted, such services being of almost daily occurrence and at which grief stricken relatives and friends are present. The services are conducted audibly with the usual solemnities, that bodies of the dead are brought in day and night from hospitals for the purpose of being embalmed or disinfected and returned to homes or shipped to other cities, that the blood and effluvia emanating from corpses in preparation for embalming or for burial and from which emanate foul odors have to be handled and disposed of on such premises, that the odors are blown to adjacent premises, that bereaved relatives often by day and night give way to paroxysms of grief and lamentations that are plainly heard by those living near such establishments, that there is constant traffic bringing in or taking out bodies of the dead and as a result thereof there is an ever present and pervading feeling of the presence of death and the nearness of the dead, that the premises are so situated and in such proximity to complainants' residences that they will inevitably be forced to be aware of all such acts and occurrences and the effect thereof through the senses, of seeing, hearing and smelling, that the matters and things enumerated are recurring and that the complainants have no adequate remedy at law.
The bill further alleges in substance that the matters set forth in the bill constitute an anticipated nuisance and violate the property rights, personal rights and will endanger the health of complainants, their families and other nearby residents, that such condition will be continuous or recurring and co...
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Mutual Service Funeral Homes v. Fehler
...FOSTER, Justice. This is the second appeal in this case. The first was from a ruling on demurrer to the bill, and is reported in 254 Ala. 363, 48 So.2d 26. The purpose of the bill is to enjoin the anticipated use of certain described property for a funeral home, upon the allegation that, if......
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