Street v. Marshall

• Decision Date: 15 February 1927
• Docket Number: 26309
• Parties: Maud M. Street et al. v. Merritt H. Marshall, Jr., et al. Appellants
• Court: Missouri Supreme Court

291 S.W. 494

316 Mo. 698

Maud M. Street et al. v. Merritt H. Marshall, Jr., et al. Appellants

No. 26309

Supreme Court of Missouri

February 15, 1927

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

Abbott Fauntleroy, Cullen & Edwards and C. M Hay for appellants.

(1) An undertaking establishment is not a nuisance per se, and its location in a residential district will not be enjoined merely on the ground of depreciation of property in the neighborhood resulting from the proximity of such an establishment, or because of its depressing mental influence, or offense to taste or fancy. 23 A. L. R. 745 and notes. (2) That mere depreciation in the value of adjoining property because of the alleged threatened nuisance is not of itself sufficient to justify an injunction is a well-established rule. Van De Vere v. Kansas City, 107 Mo. 83; Dean v. Powell Undertaking Co., 203 P. 1015; Cook v. Fall River, 239 Mass. 90; Shamburger v. Scheurrer, 198 S.W. 1069; Haynes v. Hedrick, 223 S.W. 550; Worm v. Wood, 223 S.W. 1016; Von Hatzfeld v. Neece. 223 S.W. 1034; Miller v. Dickinson, 236 S.W. 1014. (3) If the complainant's right is doubtful, or the thing which it is sought to restrain is not a nuisance per se and will not necessarily become a nuisance, but may or may not become such, depending on the use, manner of operation or other circumstances, equity will not interfere. McHan v. McMurry, 173 Ala. 182; McDaniel v. Cemetery Co., 246 S.W. 874; Dean v. Powell Undertaking Co., 203 P. 1015; Joseph v. Wieland Dairy Co., 297 Ill. 574; Julian v. Oil Co., 112 Kan. 671; State ex rel. Stewart v. Cozad, 113 Kan. 200; Baltimore v. Sackett, 135 Md. 56; Cook v. Fall River, 239 Mass. 90; Lansing v. Eaton, 214 Mich. 117; Lansing v. Perry, 216 Mich. 23; Snyder v. Hylan, 173 N.Y.S. 366; Texas Co. v. Brandt, 191 P. 166; Ayars v. Wyoming Valley Hospital, 274 Pa. 309; Wergin v. Voss, 192 N.W. 51; Wasilewski v. Biedrzycki, 192 N.W. 989. (4) The rule that a court of equity will not interfere with the threatened nuisance is not inevitable, but only contingent, depending on the manner of operation, use or other future circumstances, has been applied in a number of cases involving slaughterhouses, stock pens and dairies. Richmond v. House, 177 Ky. 814; Beckham v. Brown, 19 Ky. L. Rep. 519; McDonough v. Robbens, 60 Mo.App. 156.

Douglas W. Robert for respondents.

(1) An undertaking establishment, located in a first class residence district, is a private nuisance and its operation will be enjoined by the courts. Tureman v. Ketterlin, 304 Mo. 221; Pierce v. Union Trust Co., 278 S.W. 398; Deevers v. Lando, 285 S.W. 748; McNulty v. Miller, 167 Mo.App. 136; Blackford v. Const. Co., 132 Mo.App. 163; Marble Co. v. Gaslight Co., 128 Mo.App. 109; Bielman v. Ry. Co., 50 Mo.App. 151; Saiger v. Joy, 198 Mich. 295; Densmore v. Evergreen Camp, 61 Wash. 230; Beisel v. Crosby, 104 Neb. 644; Meagher v. Kessler, 147 Minn. 182; St. Paul v. Kessler, 146 Minn. 124; Osborn v. Shreveport, 143 La. 932; Goodrich v. Starrett, 108 Wash. 437; Cunningham v. Miller, 178 Wis. 22; Roland v. Miller, 139 N.Y. 93; Barnes v. Haythorne, 54 Me. 124; Ross v. Butler, 19 N.J.Eq. 294; Cleveland v. Gas Co., 20 N.J.Eq. 209. (2) Testimony that witnesses saw others "depressed" as a result of the undertaking establishment, and were themselves "depressed," is competent and proper. Eyerman v. Sheehan, 52 Mo. 225; Fletcher v. K. C. Rys., 221 S.W. 1070; Elliott v. Ry. Co., 157 Mo.App. 517; Kirchof v. Ry. Co., 155 Mo.App. 70; Fulton v. Ry. Co., 125 Mo.App. 239.

Ragland, J. All concur, except Gantt, J., not sitting, and Graves, J., absent.

OPINION

RAGLAND

This is an action to perpetually enjoin the defendants from using their premises, known as 5297 Washington Boulevard, in the City of St. Louis, as a "funeral home."

The block in which the premises in question are located is bounded on the north by Delmar Avenue, on the east by Lake avenue, on the south by Washington Boulevard and on the west by Union Boulevard. As indicated by these boundaries Lake Avenue and Union Boulevard run north and south; they are parallel streets, a block apart, and extend from Delmar Avenue on the north to Forest Park on the south. The east-and-west thoroughfares connecting the streets last named, between Washington Boulevard on the north and Forest Park on the south, are as follows: Westminster Place Waterman Avenue, Portland Place, Westmoreland Place and Lindell Avenue. All of the territory lying between Lake Avenue and Union Boulevard, from Washington Boulevard to Forest Park, comprises an exclusive residential district. Westmoreland Place and Portland Place, according to the trial court, are "two of the finest and most beautiful residential streets in this country." Delmar Avenue between Lake Avenue and Union Boulevard is a business street and is traversed by a double-track line of street railway. Union Boulevard from Delmar Avenue to Forest Park is a residence street. There are some stores on the east side at Delmar and again on the west side where Pershing Avenue comes into Union Boulevard from the west, a block or two south of Delmar. On further south there are on the west side a family hotel and a church; otherwise, both sides of the street are occupied by residences.

The dimensions of the block first described on the Union Boulevard side is 336 feet; on the Lake Avenue side it is somewhat narrower. It is crossed east-and-west by a fifteen-foot alley on lines which are approximately equi-distant from Delmar Avenue and Union Boulevard. A lot fifty feet in width adjoining the east line of Union Boulevard, fronting south on Washington Boulevard and extending back north to the alley just described, is the locus in quo. On this lot there is a three-story brick structure; it was built for a family residence and was occupied as such for many years and until acquired by defendants a short time before the commencement of this action.

Washington Boulevard is seventy feet in width; its length between Lake Avenue and Union Boulevard is approximately 1,000 feet. On both sides of this portion of the street are residences which are located on lots having a frontage of from 40 to 141 feet and which cost originally from $ 15,000 to $ 20,000. All of these houses, except the one which is the subject of this controversy, are occupied by their owners as family residences. These houses when built were in a "restricted" district. Shortly after the restrictions expired, on September 21, 1923, the defendants, who had been engaged in the undertaking business in St. Louis for a number of years, bought the property heretofore described and announced that they would conduct a "funeral home" there.

The residence which the defendants have converted into a "funeral home" fronts on Washington Boulevard, and it has a large porch extending across the entire front. After the defendants purchased the property they constructed a small porch on the Union Boulevard side of the house, toward the rear, and replaced two windows with doors. From this side porch defendants' business office can be entered through one of the doors, and one of the three parlors on the first floor can be entered through the other. Aside from the alterations just described the external appearance of the building has not been changed. On the inside, however, the entire lower floor has been suitably arranged, furnished and draped for the uses required by defendants' business. Defendants themselves, who are husband and wife, occupy the second floor as living quarters. They house in a garage in the rear a white ambulance which they use in conveying dead bodies from one place to another as occasion requires; and during the day when the ambulance is not in use they permit it to stand near the premises in Union Boulevard. They keep in the house embalming fluids, a cooling board and pedestals, catafalques and certain other funeral paraphernalia.

Defendants' practices as undertakers, as bearing on the use they make of the premises in question, seem to be these: When called they proceed with the ambulance, cooling board and embalming fluids to where the death occurred, take charge of the body and convey it to 429 North Euclid Avenue in St. Louis, where they embalm it or have it embalmed. After the body is embalmed, fully prepared for burial and put into a casket, it is brought by the defendants to their "funeral home" and placed in one of their parlors. It is there viewed, or may be viewed, from time to time by relatives and friends until in due course a funeral service is held and the body removed for burial. Occasionally bodies prepared for burial by defendants which are to be shipped away from St Louis are laid out in one of their parlors to enable kindred and friends to come and pay their last tributes to the memories of the departed. Defendants also receive and convey to their funeral parlors for funeral rites, or that they may be viewed, bodies which are shipped to St. Louis for burial in a local cemetery. The length of time during which any one body is kept on defendants' premises for any of the purposes above mentioned varies from a few hours to two or three days, depending upon a variety of circumstances. The funeral services held in defendants' parlors are of the usual character, lasting from thirty minutes to an hour. The bodies are always brought into and taken from the building on the Union Boulevard side, and the hearse is always brought around to that side and parked in Union Boulevard during the funeral services. But the people who come to attend these services enter the building through both the side door and the front door indiscriminately, and they park their automobiles on both sides of Washington Boulevard, as well as in Union Boulevard. ...