Tortorella v. H. Traiser & Co.

Citation284 Mass. 497,188 N.E. 254
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date04 December 1933


Appeal from Superior Court, Suffolk County; Whiting, Judge.

Bill in equity by Rosaria Tortorella against H. Traiser & Company, Incorporated. From decrees confirming the master's report and dismissing the bill, plaintiff appeals.

Affirmed.F. Ramacorti and E. Brams, both of Boston, for appellant.

F. B. Turner, of Boston, for appellee.

WAIT, Justice.

The plaintiff brings this bill in equity to restrain the defendant from maintaining on its premises, on Merrimac Street, in Boston, what she alleges to be a nuisancein so erecting and installing certain cigar-making machinery that loud and disturbing noises are created while it is in operation. She also asks that damages be awarded.

A master reported findings of fact in substance as follows: The plaintiff owns premises on South Margin Street in Boston, distant about eighty feet from the factory of the defendant. When she purchased, in 1903, the neighborhood was largely residential; but it has changed until now it is more of a business than a residential district. Under the zoning act, St. 1924, c. 488, the district is zoned partly as ‘industrial’ and partly as ‘general business,’ both classes permitting such use as the defendant makes of its premises. Before 1917 the defendant made cigars by hand. Machines have been installed from time to time to do this work; but no nuisance is alleged to have resulted until January of 1932. Between May, 1931, and January, 1932, fourteen machines were installed on the fourth floor of the factory equipped in accord with the present ventilating or suction system with a common motor and exhaust exptying in a dust collector on the roof. Noise results. Air is sucked from the floor of the room where the machines stand, with force sufficient to hold tobacco leaf so firmly to the machines that it may be cut as required and is driven to the dust collector on the roof. The system is not used to its full capacity. Fourteen machines are installed, though the system could handle forty. The change made does not increase the output of the factory but, by preventing the accumulation of dust from the atmosphere and from the tobacco about the machines, renders the shop and product much more sanitary. Competition makes the installation of the system necessary for the defendant's business.

The noise produced is continuous between the hours from 7:20 a. m. to noon, and from 1:00 to 4:30 p. m. on five days of the week. On the street in front of the plaintiff's premises, mingled with the sounds of the street, it is audible but not obstrusively so unless to one attending to it. It is decidedly more audible and noticeable from the plaintiff's rear rooms whether the windows be open or closed, but not so loud as in the different parts of the defendant's factory. Its chief characteristic is its steady monotony. It is higher in pitch and more monotonous than the noise of continuous and uninterrupted passage of street traffic. It is annoying and disturbing to occupants of the plaintiff's premises. It tends to create irritability and headaches and it interferes with sleep of a tenant who works at night and sleeps by day. It would interfere with the comfort of a sick person. No one in the plaintiff's premises has suffered materially in comfort or health as a result of the noise. ‘If material, I find that the operation of the present system now in use and above described has reduced the rental value of the plaintiff's premises. I am unable to state to what extent it has been so reduced.’ Devices suggested, probably, would lessen the noise, but not appreciably, and at an expense disproportionate to the relief obtained. The report concludes: ‘Upon the facts herein found, and subject to the rulings of the court upon matters of law, I find that the operation of the defendant's factory does not unreasonably interfere with the comfort, health or property of the plaintiff.’ Recommittal was denied, exceptions of the plaintiff were overruled, the report in so far as it found facts was confirmed, and a final decree was entered dismissing the bill. The plaintiff appeals from the decrees confirming the report and dismissing the bill.

No error is disclosed. Whether the report is recommitted rested in the discretion of the court. No abuse of discretion appears. Webster v. Kelly, 274 Mass. 564, 573, 175 N. E. 69. The objections based upon failure to find facts desired by the plaintiff or to reach different findings upon evidence not reported in full will not support valid exceptions. Webster v. Kelly, supra. The exceptions that certain statements are conclusions of law rather than findings of fact were overruled properly. The statements that competition makes the installation necessary; that the cost of suggested changes would be disproportionate to the relief obtained; and the concluding finding that the operation of the factory does not unreasonably interfere with the comfort, health or property of the plaintiff are all mixed questions of law and facts which the master was right in reporting as findings. The confirmation of the report in terms extended only ‘in so far as it finds facts.’ Questions of law were disposed of by the court at the hearing on the merits.

A noise may constitute an actionable nuisance, Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768,4 Am. St. Rep. 316,Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054,Stodder v. Rosen Talking...

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34 cases
  • Rattigan v. Wile
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 25, 2006
    ......Compare Tortorella v. H. Traiser & Co., 284 Mass. 497, 502, 188 N.E. 254 (1933) (evidence that value declined insufficient without showing of extent). The judge's ......
  • MacLeod v. Davis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 30, 1935
    ...v. Eneix, 272 Mass. 189, 191, 172 N. E. 243;Dobias v. Faldyn, 278 Mass. 52, 56, 58, 179 N. E. 219;Tortorella v. H. Traiser & Co., Inc., 284 Mass. 497, 500, 188 N. E. 254, 90 A. L. R. 1203. It is only where the general finding purports to be a mere conclusion from subsidiary facts fully stat......
  • MacLeod v. Davis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 30, 1935
    ......129, 54 N.E. 338; Seemann v. Eneix, 272 Mass. 189, 191, 172 N.E. 243; Dobias v. Faldyn, 278 Mass. 52, 56, 58, 179. N.E. 219; Tortorella v. H. Traiser & Co., Inc., 284. Mass. 497, 500, 188 N.E. 254, 90 A.L.R. 1203. It is only. where the general finding purports to be a mere ......
  • Caldwell v. Knox Concrete Products, Inc.
    • United States
    • Court of Appeals of Tennessee
    • August 5, 1964
    ...... of property of another owner who though creating a noise is acting with reasonable regard for the rights of those affected by it.' Tortorella v. H. Traiser & Co., 284 Mass. 497, 188 N.E. 254, 90 A.L.R. 1203. See also City of Chicago v. Reuter Bros. Iron Works, Inc., 398 Ill. 202, 208, 75 ......
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