Payne v. Johnson
| Decision Date | 31 January 1944 |
| Docket Number | 29187. |
| Citation | 20 Wn.2d 24,145 P.2d 552 |
| Parties | PAYNE et ux. v. JOHNSON. |
| Court | Washington Supreme Court |
Department 2.
Action by E. G. Payne and wife against E. W. Johnson to enjoin the defendant from operating a loud speaker system on his premises used as an open air theater in such a manner that sound therefrom is audible upon plaintiffs' premises and if loud speaker system cannot be so controlled at all hours to enjoin the defendant from operating the loud speaker system in any manner. From decree entered, the defendant appeals and the plaintiffs cross-appeal.
Affirmed.
Appeal from Superior Court, King County; Robert M. Jones, judge.
Joseph H. Griffin, of Seattle, for appellant.
Chadwick Chadwick & Mills, of Seattle, for respondent.
Lots 23 and 24, block 5, Federal Highway Addition, King county, on the Federal highway between the cities of Seattle and Tacoma purchased by plaintiffs in 1930 and occupied by them as their home, are improved with a six-room modern house, gasoline station and repair shop and five three-room cottages which were rented, prior to the present world war, to tourists since the commencement of the second world conflict the cottages have been rented largely to workers in war industries.
Defendant is the owner and operator of the Northwest Motor-In Theater which is a motion picture business located on the Federal highway immediately south of a county road known as the Zenith road, or 240th street south, the highway separating the property of plaintiffs from the property of defendant. This open-air theater is so arranged that its patrons drive in and seated in their own automobiles witness a moving picture show projected upon a large screen. The talking portion of the motion picture is transmitted to the patrons through loud speaking devices.
In August 1941, when the building of the theater was first contemplated, there were two different methods of speaking equipment employed to carry the sound: One, loud speaker horns; the other, individual speakers hung on the window of the automobile at the time of entering the theater and plugged in to a line on the ramp. The theater is designed for the accommodation of about five hundred automobiles aligned in eleven rows and the maximum distance of the eleventh row from the four horns is eight hundred feet. The theater opened May 1st and ran to December 6, 1942, seven nights a week and operated from darkness until about 12:30 a. m., varying with the period of darkness, and for a while on Saturday there was a show for the swing shift which lasted from one a. m. until three a. m. The theater reopened in the spring of 1943.
On the ground that the noise developed through the loud speaker system is so disturbing to the peace and quiet of plaintiffs and their tenants as to constitute a nuisance, plaintiffs instituted this action October 13, 1942, to enjoin defendant from operating the loud speaker system in such a manner that the sound therefrom is audible upon the premises of plaintiffs; and if the loud speaker system cannot be so controlled at all hours that defendant be enjoined from operating the loud speaker system in any manner or at all.
The cause was tried to the court which found that on occasion when the theater is not fully occupied and the picture being shown is a noisy one the occasional sounds from the loud speaker cannot be confined within the area occupied by the theater and the sounds from the loud speaker are heard within the home of plaintiffs and are particularly disturbing to the peace and quiet of plaintiffs and of their tenants. From the commencement of the operation of the theater the noise has been a nuisance offensive to the senses of plaintiffs and a substantial interference with the comfortable enjoyment by them of their life and property disturbing their repose during the normal hours of repose and materially affecting the health of plaintiff wife. Plaintiff husband is employed in an essential defense industry, as are some of the tenants of plaintiffs, and their rest is necessary to their working efficiency. The continuance of the noise of the operation of the theater in such volume as to penetrate plaintiffs' property is a nuisance which should be abated, and which, if not adequately controlled, will detrimentally affect the health of plaintiffs and the value of their property. The court further found that there are two methods of projection of sound systems to be used in connection with the operation of open-air theaters: One, the device of loud speakers such as are installed by defendant in his theater; the other, a system of individual speakers attached to a window of the vehicles of patrons and with a volume control in the hands of the patrons so as to confine the noise of the sound track to the individual vehicle; that the latest system of...
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