Palm Corp. v. Walters
| Decision Date | 21 November 1941 |
| Court | Florida Supreme Court |
| Parties | PALM CORPORATION v. WALTERS et al. |
Appeal from Circuit Court, Dade County; Ross Williams Judge.
Henry D Williams and Alvin Cassel, both of Miami, for appellants.
N. Vernon Hawthorne and Allen Clements, both of Miami, for appellees Arthur L. Walters and Louise Walters.
Aronovitz & Goldstein, of Miami, for appellees Frances K. Powell and George C. Powell.
This is an appeal by one of the defendants from a final decree below enjoining the continuance of acts held to be a nuisance.
On May 1, 1940 Arthur L. Walters and Louise Walters, his wife, filed their bill of complaint against the appellant corporation and Frances K. Powell and George C. Powell, her husband. This bill alleged that in 1929 the plaintiffs had bought property and erected thereon a building known as the Walters building at 377 Lincoln Road on Miami Beach, Florida; that a part of this building had been built especially for offices for doctors (one of whom was the plaintiff) and since 1930 had been and was at the filing of the bill being used for that purpose; that the rest of the building had been and was being used as living quarters and for shops and offices; that in 1939 the Palm Corporation caused the Albion Hotel to be built next to the Walters building; that that section of the Albion Hotel known as the Patio Restaurant, a two story building, is separated from the Walters building by one or two inches; that the said Patio Restaurant has dining room and kitchen facilities sufficient to serve the patrons of the Albion Hotel, which has approximately 100 rooms; and that the Patio Restaurant is run by Frances K. Powell, one of the defendants to the bill of complaint. Plaintiffs then alleged as follows, showing the injury claimed:
'(9) That ever since the opening of said kitchen and its operation as aforesaid under the management and supervision of Frances K Powell, defendant, as aforesaid, noxious, unhealthful damaging, disagreeable, and offensive ordors or stenches, emanating and issuing from said kitchen, polluted the air around and in the said Walters Building, rendering it unpleasant, uncomfortable, unhealthy and unfit for human habitation and particularly unfit for the special purposes for which said Walters Building was constructed and designed as aforesaid.
'(10) That ever since the opening for business of said dining room, patio dance pavilion, and kitchen, in January, 1940, and their operation in connection with and as a part of said Hotel Albion, said places have opened daily about 7:30 A.M. and closed about 11:00 P.M.; that the noise made in the operation of said kitchen--the yelling of orders, the clanging of kitchen utensils and table ware, the clattering of dishes--all made in the haste of preparation of food and quick service for patrons, continues practically all the time the kitchen is opened; that the noise made in the operation of the dining room--the yelling of orders, the setting of tables, the gathering of the dirty dishes, the sweeping and mopping--is practically continuous from early morning until late at night; that the noise made in operation of patio dance pavilion where orchestra plays nightly from 7 to 11 is augmented by manifestations of stimulated spirits of patrons, pepped by intoxicating liquors re served and sold to m; that all aforesaid noises emanating and issuing from said kitchen, dining room, and patio pavilion can be plainly heard in all east side of Walters Building and in all rear of said building, and at times throughout building.
'(11) That in addition to the foregoing noises emanating from said patio dancing pavilion, are the noises from the operation and conduct of bingo games there held on several nights of each week; that the calling of the numbers by the announcer, the yelling of 'Bingo', the declaration of excited winners and the laughter and banter of the players, all can be heard plainly throughout the greater part of the said Walters Building: that the said operation of said bingo games are in violation of the laws of Florida governing gambling.
'(12) That the said buildings constituting the premises known as the Albion Hotel, including the said office buildings and kitchen and dining room, are air-conditioned but the operation of air-conditioning machinery and equipment causes continuous loud annoying and disturbing noises to be made by that portion of said machinery and equipment located in the west walls of said buildings being within about three feet of the east walls of the said Walters Building: that, though said airconditioning machinery and equipment are not operated at all times, it makes, when in operation, noises that can be heard throughout most of the Walters Building: that said air-conditioning machinery is evidently defective.
'(13) That many patients of the plaintiff, Arthur L. Walters while waiting for medical attention, or being given medical treatment in the offices of said plaintiff in said Walters Building, have complained of the aforesaid odors and noises, and some of his patients have left his offices without treatment because of said noises and odors; that in taking a electro-cardigram of patient's heart it is necessary that the condition of the patient be normal and generally the patient is kept quiet for a period of time in the office before the electro-cardigram is made, likewise in the making of basal metabolism tests; that by reason of the aforesaid odors and noises it has been necessary in several instances for your plaintiff, Arthur L. Walters to have to take the basal metabolism machine to the homes of different patients to make such metabolism tests; that in carrying on his medical practice in his offices in the Walters Building he has many consultations a day with his associate in practice, Dr. David W. Exley, and the said noises from said kitchen and dining room greatly interfere with same and with their interviews and examinations of patients.
'(14) That a number of plaintiffs' tenants have repeatedly complained to plaintiffs as their landlords, of both the aforesaid odors and noises and disturbances that so materially interfere with the comforts and pleasures to which they are entitled in the peaceable enjoyment of said premises.
'(15) That the tenants of plaintiffs occupying the apartments and hotel room on the second floor have and are constantly complaining to plaintiffs of the aforesaid odors and noises.
'(16) That the annoying and disturbing noises emanating from the air-conditioning machine before mentioned, could be eliminated as plaintiffs are informed and believe, by a proper installation of said machinery and a proper insulation of the walls of the room in which said machinery is used.
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'(18) That accumulative to the noises issuing from the said hotel premises are the announcements that are being often and from time to time made, over the loud public speaker system installed and in use on said premises, said announcements being plainly heard in the said...
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