Tureman v. Ketterlin
| Decision Date | 10 June 1924 |
| Docket Number | 23595 |
| Citation | 263 S.W. 202,304 Mo. 221 |
| Parties | A. P. TUREMAN et al. v. ALBERT KETTERLIN et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied June 10, 1924.
Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.
Affirmed.
Spencer F. Harris for appellants.
(1) The judgment of the court that the proposed establishment would be a nuisance is contrary to the law and the evidence. Wiscott v. Middleton, 11 A. (N. J.) 490; Rea v Tacoma Assn., 174 P. 961; Ellison v. Commissioners, 58 N.C. 57; Monk v. Packard, 71 Me. 309; Dean v. Powell, 203 P. 115. (2) The ordinance introduced in evidence is void. Tugman v. Chicago, 78 Ill. 405; Los Angeles v. Hollywood, 124 Cal. 344; Weadock v. Judge, 156 Mich. 376; Salt Lake City v. Western, 187 P. 829; St. Louis v. Const. Co., 244 Mo. 479; State v. Sheriff, 48 Minn. 236; Ex parte Bohen, 115 Cal. 372; Ex parte Adolf, 215 S.W. 222; Yick Wo v. Hopkins, 118 U.S. 356.
Wm. Paul Pinkerton and Sebree, Jost & Sebree for respondents.
(1) The court properly held that the proposed undertaking establishment would be a private nuisance under the law and under the evidence, and its judgment rendered in accordance with such holdings is valid and should be affirmed by this court regardless of whether the ordinance in question in this case is valid or void. Beisel v. Crosby, 178 N.W. 272; Densmore v. Evergreen Camp, 112 Pac. Wash.) 255; Osborn v. City of Shreveport, 143 La. 932; Saier v. Joy, 198 Mich. 295; Goodrich v. Starett, 184 P. 220; Meagher v. Kessler, 179 N.W. 732; Cunningham v. Miller, 189 N.W. 531. (2) The ordinance introduced in evidence is valid. St. Louis v. Fischer, 167 Mo. 657; St. Louis v. Howard, 119 Mo. 47; St. Louis Gunning Co. v. East St. Louis, 259 Mo. 99; Kansas City v. Libe, 252 S.W. 404; City of Chicago v. Repley, 94 N.E. 932; Article 1, sec. 1, K. C. Charter; Article 3, sec. 1, par. 4, K. C. Charter. The ordinance is not unreasonable on its face. St. Louis Gunning Co. v. East St. Louis, 235 Mo. 99. Plaintiff failing to plead facts showing it unreasonable or to prove any such facts cannot raise the point of its unreasonableness. St. Louis v. United Railways, 263 Mo. 454.
This is a suit to enjoin the location and operation of an undertaking establishment in Kansas City at a place which it is alleged would constitute it a nuisance at common law, and be in violation of an ordinance of the city as well.
The petition alleges that plaintiffs severally reside, or own residence property, in the immediate vicinity of No. 2657 Independence Boulevard; that defendants propose to locate and maintain at the latter place "an undertaking establishment, morgue and funeral home;" that the proposed location is in a residential district; that the dead bodies brought to such undertaking establishment would emit noxious effluvia, carrying germs of disease; that said bodies and the chemicals used in embalming them would give off noxious and offensive odors; that funerals would be continuously held there, and vehicles for that purpose would be always moving to and from; carrying the dead, the mourners and the bereaved; and that these conditions would injuriously affect the mental and bodily health of plaintiffs, or their tenants, destroy the comfort and repose of their homes and greatly depreciate the values of plaintiffs' several properties -- all to their irreparable injury, etc. The petition further pleads an ordinance which provides that "it shall be unlawful for any person, firm or corporation to construct, locate, operate or maintain an undertaking establishment or morgue within one hundred feet of any building used exclusively for residential purposes in Kansas City, Missouri," and alleges that the location and maintenance of an undertaking establishment at No. 2657 Independence Boulevard would be in violation of such ordinance.
The joint answer of defendants, in addition to a general denial, alleges "that the ordinance referred to and set out in plaintiffs' petition is void for the reason that the same is unreasonable and oppressive and for the further reason that the same is in violation of the Fourteenth Amendment of the Constitution of the United States, in that the same is class legislation and denies to defendant and all persons equal privileges and protection of the law and is confiscatory and deprives defendants of their property without due process of law and without just compensation." The answer admits that defendants intend to conduct an undertaking business at the place described in the petition unless restrained by the court.
A considerable portion of the evidence offered at the trial below was with respect to whether the place at which defendants purpose to set up their undertaking establishment is within a strictly residential district. The building they have selected for that purpose, itself a large stone structure heretofore used as a residence, is located on the south side of Independence Boulevard between Prospect and Chestnut avenues. The territory immediately surrounding it was at one time, perhaps twenty or twenty-five years ago, one of the most beautiful residence sections of Kansas City. But as a residential district it has now fallen into decay; no new homes are being constructed, while numerous business enterprises are appearing here and there. The occupation for residential purposes still greatly predominates over any other, however. While some of the fine old homes there are now occupied by tenants and show evidences of neglect, many others are occupied by owners who keep them in repair; and practically all are used solely as places of residence.
Independence Boulevard extends east and west. It is paralleled by Sixth Street, a block south. Both streets are intersected by Prospect Avenue, then a block east of that by Chestnut Avenue, and a block still further east by Gladstone Avenue. The block between Prospect and Chestnut on the north side of Independence Boulevard, is bisected north and south by Montgall Avenue and the block next east of that by Bellefontaine Avenue. A plat offered in connection with the testimony of witnesses discloses this general situation with reference to the territory comprising a block north and a block and a half south of Independence Boulevard and extending from Prospect Avenue on the west to and including Gladstone Avenue on the east. There are a group of stores at the southeast corner of Independence Boulevard and Prospect Avenue, and from thence on south past Sixth Street all the buildings on the east side of Prospect are devoted to commercial uses; there is an oil filling station and a grocery store at the southeast corner of Independence and Chestnut; an imposing stone church edifice at the southwest corner of Independence and Gladstone; a school on the north side of Independence near Gladstone; an old residence used for a millinery school at the northeast corner of Independence and Montgall; and an oil filling station on the northeast corner of Independence and Prospect. There are also apartment buildings on the northeast corner of Independence and Chestnut, housing some thirty-two families. The remainder of the territory, with the exception of a vacant space here and there, is occupied by residences used for residential purposes, approximating one hundred in number. Those on Independence Boulevard are commodious structures, with spacious lawns; those on the other streets are smaller and built closer together; Sixth Street especially is compactly built up.
The buildings from which defendants purpose to conduct an undertaking business is located on a lot having a frontage of fifty feet on Independence Boulevard and extending back two hundred and fifty feet to Sixth Street. The house sets back a short distance from the boulevard; in its rear and much nearer Sixth Street there is a garage. A driveway runs along near the west line of the property from one street to the other. A room on the first floor on the west side of the residence building is to be used as an embalming room; the parlors, for the holding of funerals; and the garage, the place for keeping a hearse. According to the testimony of Emily Ketterlin the business is to be her sole enterprise; she expects to conduct it along the lines generally followed by undertakers; whenever called, whether day or night, she will go with her hearse, which she intends to use as a dead wagon, and get dead bodies -- at homes, hospitals, morgues or wherever they may be, regardless of whether they are of persons who have died from disease or casualty and regardless of the condition or state of decomposition in which they may be -- bring them to her place of business, and there wash, embalm and otherwise prepare them for burial.
The property of plaintiff, Mrs. Niles, which she owns and in which she lives with her family, joins the Ketterlin property on the west. Her house fronts Sixth Street it is ninety-two feet from the Ketterlin house, but just a few feet from the driveway and garage heretofore mentioned, the latter being almost under her bedroom windows. The property of plaintiffs Tureman, lies next to that of the Ketterlins on the east -- the houses are about fifty-five feet apart. The Tureman house is a large two-story brick occupied by tenants, a retired minister...
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