Frederick v. Brown Funeral Homes, Inc.

62 So. 2d 100, 222 La. 57, 39 A.L.R. 2d 986, 1952 La. LEXIS 1310

• Court: Supreme Court of Louisiana
• Decided: November 10, 1952
• Docket: 40705
• Status: Published

Opinions

HAWTHORNE, Justice.

Plaintiffs-respondents, residents of the Town of Covington, Louisiana, instituted this action on December 7, 1951, to enjoin the proposed establishment and operation of a funeral home by defendant-relator at 1919 Theard Street in that town. The plaintiffs allege that they are property owners residing in the immediate vicinity of the proposed funeral home; that on October 27, 1951 (a little more than one month prior to the institution of this suit), defendant-relator acquired the lot and residence designated as No. 1919 Theard Street for the purpose of establishing a funeral home; that the area in which the proposed funeral home is to be located is strictly and exclusively a residential, church, and school area; that the establishment and operation of the proposed funeral home in a strictly residential neighborhood will be a nuisance because it will produce noxious odors, will create an atmosphere detrimental to the use and enjoyment of their homes, and will render them and their families physically uncomfortable; that the arrival and departure of mortuary wagons, hearses, and ambulances and the holding of funerals will serve as a constant reminder of death and will impair in a substantial way the comfort, repose, and enjoyment of their homes, will result in their mental annoyance, will produce upon them and the members of their households depressing effects, will depreciate the value and diminish the rental value of their, property. They further allege that the establishment and operation of a funeral home in a strictly residential area is a nuisance per accidens or in fact by reason of the proposed locality, surroundings, or the manner in which such an establishment is conducted or managed, and they conclude that for these reasons they are entitled to be protected from the establishment of this proposed business or occupation as a nuisance because of the inappropriateness of its location. '

' Upon the filing of this petition the lower court ordered the defendant to show cause why a preliminary injunction should not issue, and after trial of this rule the court granted the preliminary injunction as prayed for by plaintiffs. Upon the refusal of the trial judge to grant a suspensive appeal — a . devolutive appeal was granted — , defendant applied to this court for writs. This court ordered the issuance of a writ of certiorari with a stay order and also ordered the respondents to show cause why the relief sought in relator’s application for writs should not be granted.

In Borgnemouth Realty Co., Ltd., v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488, 490, this court recognized the distinction between. a nuisance per se and a nuisance per .accidens or in fact. We said:

“ ‘ * * * A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.

Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings. * * * whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. * * * ’ ”

(All italics ours.)

It is universally recognized that the operation and conducting of a funeral home, in itself, does not constitute a nuisance per se. See 3 Cooley on Torts, 4th Ed., sec. 435, p. 180; Annotation, 87 A.L.R. 1061. This rule has been recognized in this state in the case of Moss v. Burke & Trotti, Inc., 198 La. 76, 3 So.2d 281. Plaintiffs-respondents concede this, but contend that the establishment and operation of such a business in a strictly residential area is a nuisance per accidens or in fact; that such a funeral home becomes a nuisance by reason of the inappropriateness of the place (a strictly residential area) in which it is established and conducted.

The greater weight of modern authority is to the effect that the establishment and operation of a funeral home in a strictly residential district is sufficiently objectionable to make it a nuisance in fact. The inherent nature of the business is such that, if located in a purely residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residential property in that it will produce a constant reminder of death, depress the residents of homes located in close proximity, materially impair the use and enjoyment of such homes, produce material annoyance and inconvenience to the occupants of adjacent property, and render them physically uncomfortable. Cooley, op. cit. supra; Annotation, 87 A.L.R. 1061, 1062; 54 Am.Jur., Undertakers and Embalmers, sec. 7, p. 512.

According to our research, the courts of 22 states have considered jmd passed upon the question of whether the establishment and operation of a funeral home should be enjoined in a strictly residential neighborhood. Nineteen of these states follow the majority rule set out hereinabove¹, and three have adopted the view that a funeral home in a strictly residential district does not become a nuisance per accidens by the fact of its location in such a district.²

In Higgins v. Bloch, 213 Ala. 209, 104 So. 429, 432, the Supreme Court of Alabama in affirming a decision of the lower court overruling a demurrer to the complaint had this to say:

“The respondents intend and propose, and are now carrying on the work, to establish and maintain the business of undertakers and funeral directors in Mobile, as is generally carried on in.that city, and as is particularly described in the complaint, in a place exclusively used as a residential district. They are intruders by that business in that residential district. For more than 50 years, where respondents are locating their business, it has been and is now used for homes, and it is in the very heart of the most popular residence part of the city. It is in close proximity to, only a few feet from, the residences owned and occupied as homes for years by the complainants. * * *

“The home is a place for comfort and repose, where one can eat and sleep and spend the leisure hours with his family free, from business cares and ánxieties. A citizen has a right to be protected in his home and in his right to the enjoyment of it. Death is an enemy of human life. ‘The last enemy that shall be destroyed is death.’ 1 Cor. xv:26. To see its effect is depressing to the ordinary, reasonable person. To see almost daily the hearse carrying in and taking dead bodies from this Leinkauf residence, to know the bodies were there being embalmed, disinfected from disease, probably contagious in its nature, to hear the singing of funeral hymns and psalms in the chapel of this residence, and to see the relatives and friends of the dead and hear their mourning, would have a depressing effect on the mind of a normal person, would continually remind complainants of mortality, would deprive them and their respective homes of the comfort, repose, and pleasure to which they as owners are each entitled, and it would have a tendency to weaken their physical resistance and render them more susceptible, probably to disease from the dead bodies therein if they were infected with contagious diseases. * * ”

In Saier v. Joy, 198 Mich. 295, 164 N.W. 507, 508, L.R.A.1918A, 825, the appellate court in affirming a judgment of the lower court enjoining the proposed establishment of a funeral home in a strictly residential area said:

“ * * * We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person. Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person. Mental depression, horror, and dread lower the, vitality, rendering one more susceptible to disease, and reduce the power of resistance. There is an abundance of testimony in this record confirmatory of this, and it is a matter of common knowledge. The constant going and coming of the hearse * * *; the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs, held in the part of the house designed for a chapel; the unknown dead in the morgue, and the visits of relatives seeking to identify them; the thought of autopsies, of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman — all of these are conducive to depression of the normal person; each of these is a constant reminder of mortality. These constant reminders, this depression of mind, deprive the home of that comfort and repose to which its owner is entitled.

“We cannot overlook the right to engage in a lawful trade, nor the fact that the conduct of the undertaking business is not only lawful, but highly necessary, nor that it is not a nuisance per se. Nor can we overlook the right of the citizen to be protected in his home, and his right to the enjoyment there of that repose and comfort that are inherently his. The question here is not the restraining of defendants’ business, but the restraint of its intrusion into a long-established and strictly residential district. * * ■ * ”

In Williams v. Montgomery, 184 Miss. 547, 186 So. 302, 303, it was said:

“This funeral home was conducted in á modern manner and was sanitary.

“It is our own conclusion, based upon the conflicting evidence in this case, that a constant reminder of death, naturally caused those in the vicinity of a funeral home by its operation, is bound to have a depressing effect upon the persons who have sought a quiet street and' established it for a long time, and tend‘9 to im'pair right in this country to enjoy life, liberty, and pursuit of happiness.

“It is true that a funeral home is now deemed a necessity, but its business is— dealing with the dead in the most gruesome manner. It is true as one poet has said that, ‘Our hearts like muffled drums are beating funeral marches to the grave’, but it is not conducive to the quiet, peaceable enjoyment of one’s property, who has selected an exclusively residential district for his home, to have a funeral home protrude itself into that district and conduct its business of dealing with the dead. The constant reminder of death to the average normal human being is not conducive to health and happiness when continually thrusting its ‘skull and crossbones’ in his presence. The Savior of all mankind when He came face to face with it prayed to His Father, ‘Let this cup pass from me’.

* H= * * * *

“The trend of the great weight of authority in this country in other jurisdictions have held under such conditions as we have delineated that such a funeral home conducting its business in the usual way, which protrudes itself (through its owners) upon such a district as we have described, may be perpetually enjoined and abated as a nuisance. The older authorities place the emphasis upon the right of the property owner to use- his business for a lawful purpose emphasising the property right. The modern trend of authority puts the stress upon the old maxim, ‘use your own so as not to injure another’s property’, and have held in effect that a funeral home such as we have before us invades the physical rights of those living in the immediate vicinity, and close thereto. It must be conceded that the operation of a funeral home is a lawful business, but the question presented — is it lawful under the circumstances here when we balance the rights of human beings and homes and environments as against mere property rights? * * *

* if: * >}i *

*' * * * We conclude with the general statement that judges are human beings, who try to keep abreast with the judicial trend of the people for whom they apply the law. We must be supposed to be acquainted with the reaction of the average normal person, and of their sentiments and feelings, and we are certain that the obtrusion of a funeral home, over the protest of the people who have established and for a long time lived in a beautiful environment, a residential district, is bound to have a depressing effect upon the financial value of the properties, that the scenes about a funeral home are bound to depress the feelings and comfort and quiet enjoyment of the property of those who witness and live under its shadow daily; and where all the paraphernalia and symbols of death are constantly exhibited, the reaction of a normal person must be that of one who feels a keen sense of depression. It is psychological that a person who lives in a depressed atmosphere will normally be depressed in spirit and sensibility, and will be weakened in a power to resist the vicissitudes of life, including disease. One who has selected a quiet home for happiness and joy and comfort will, by the obtrusion of a funeral home in his immediate vicinity, have his right to- comfort, repose, and enjoyment in the home materially affected; and there must ensue a material depreciation of the value of the home. Under such circumstances, as delineated here, a funeral home although lawful, although conducted in a modern approved manner, is a nuisance to those so affected.

‘‘We are not here dealing with a funeral home for an appreciable length of time permanently established unchallenged, nor with one located on a street already being used for conducting commercial enterprises.”

The Supreme Court of Missouri in Streett v. Marshall, 316 Mo. 698, 291 S. W. 494, 497, said:

• “ * * * appellants argue that an undertaking establishment where only bodies which 'have been embalmed are received, thus eliminating all question of communicating disease or fouling the air with noxious or offensive odors and gases, cannot be held to be a nuisance, although conducted in an exclusively residential neighborhood. In other words, in order for such an establishment to constitute a nuisance, its character must be such as to directly affect the health or grossly offend the physical senses. This position is without support in the recited cases. While it is true that in many, if not all of them, the charge was made that the establishment 'complained of would communicate contagion, and would emit noxious gases and offensive smells, such charge was almost universally found to be without substantial support in the evidence. A careful reading of the cases will disclose that what has been stressed, and in the last analysis made the basis of injunctive relief, is this: Constant reminders of death, such .as an undertaking establishment and the activities, connected with it give rise to, impair in a substantial way the comfort, repose, and enjoyment of the homes which are subjected to them. * * *

SP 3f * * * *

“ * * * No amount of skill or tact can wholly eliminate from the undertaking business its constant reminders of death, the one thing from which the normal individual - instinctively flees, whatever his religion or philosophy of life. To be compelled to live in a continuing atmosphere of death is intolerable. While the undertaking business is not only lawful but indispensable, there is no justification or’ excuse for its seeking out and establishing itself in localities devoted exclusively to homes, where it not only materially detracts from the comfort and happiness of those who dwell there,- but ruinously depreciates the values of their real estate as well.”

In Blackburn v. Bishop et ux., Tex. Civ. App., 299 S.W. 264, 271, the court stated:

“During all recorded time, man has enveloped the home with á sanctity that is. not given to any other place on earth.

* * *

“Always ‘home’ has meant peace and contentment, and man's rest under his own vine and fig tree are symbolical of such a condition. Holy Writ gives us such a picture when it says: ‘Judah and Israel .dwelt safely, every man. under his vine and under his fig t-ree from Dan even unto Beersheba, all the days of Solomon.’ 1 Kings 4:25.

“For many reasons the broadest protection has been afforded by law to preserve the immunity of the home from distresses and vexations of life, and to protect the happiness and contentment of the family, and such home should not be destroyed by the demand of a legal business in a residential district, the legal operation of which, it is, made to appear from the evidence in this case, has created, and is creating, unsupportable conditions depriving the appellees and their family of the ability to enjoy their home in peace and comfort * *

Other cases in which the majority rule was followed are Laughlin, Wood & Co. v. Cooney, 220 Ala. 556, 126 So. 864; White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84; Mutual Service Funeral Homes v. Fehler, 254 Ala. 363, 48 So.2d 26; Brown v. Arbuckle, 88 Cal.App.2d 258, 198 P.2d 550; Jack v. Torrant, 136 Conn. 414, 71 A. 2d 705; McGowan v. May, 186 Ga. 79, 196 S.E. 705; Albright v. Crim, 97 Ind.App. 388, 185 N.E. 304; Reiser v. Osborn, 114 Ind.App. 617, 53 N.E.2d 545; Bevington v. Otte, 223 Iowa 509, 273 N.W. 98; Leland v. Turner, 117 Kan. 294, 230 P. 1061; Hatcher v. Hitchcock, 129 Kan. 88, 281 P. 869; Weinmann v. Miles, 134 Kan. 107, 4 P.2d 437; Fink v. Smith, 140 Kan. 345, 36 P.2d 976; Dillon v. Moran, 237 Mich. 130, 211 N.W. 67; Kundinger v. Bagnasco, 298 Mich. 15, 298 N.W. 386; Rockenbach v. Apostle, 330 Mich. 338, 47 N.W.2d 636; Gunderson v. Anderson, 190 Minn. 245, 251 N.W. 515; Davis v. Holmes, 189 Miss. 554, 198 So. 25; Smith v. Fairchild, 193 Miss. 536, 10 So.2d 172; Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202, 43 A.L.R. 1155; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119; Beisel v. Crosby, 104 Neb. 643, 178 N.W. 272; Arthur v. Virkler, 144 Misc. 483, 258 N.Y.S. 886; Jordan v. Nesmith, 132 Okl. 226, 269 P. 1096; Fraser v. Fred Parker Funeral Home, 201 S.C. 88, 21 S.E. 2d 577; King v. Guerra, Tex.Civ.App., 1 S.W.2d 373; Bragg v. Ives, 149 Va. 482, 140 S.E. 656; Densmore v. Evergreen Camp No. 147, Woodmen of the World, 61 Wash. 230, 112 P. 255, 31 L.R.A.,N.S., 608; Goodrich v. Starrett, 108 Wash. 437, 184 P. 220; Haan v. Heath, 161 Wash. 128, 296 P. 816; Cunningham v. Miller, 178, Wis. 22, 189 N.W. 531, 23 A.L.R. 739.

It is important to point out that the decisions throughout the United States are uniform in holding that the proposed establishment and operation of a funeral home in an area or district which is partly commercial and partly residential or which is undergoing transition from a residential to a commercial area will not be enjoined. Fentress v. Sicard, 181 Ark. 173, 25 S.W. 2d 18; Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726; Devereux v. Grand-Americas Junior Corp., Sup., 85 N.Y.S.2d 783; Meldahl v. Holberg, 55 N.Dak. 523, 214 N.W. 802; Rick v. Cramp, 56 Pa.Dist. & Co. 295; O’Connor v. Ryan, Tex.Civ. App., 159 S.W.2d 531.

No hard and set rule can be laid down as to what constitutes a strictly residential district or a semi-commercial district or an area in the period of transition from a residential to a commercial district, but that question will have to be determined from the facts and circumstances of each particular case. That question in the instant case of necessity will have to be determined when the case is tried on its merits. The ■Supreme Court of Mississippi in the case ■of Smith v. Fairchild, supra, made the following pertinent observation:

“ * * * The question is comparative and relative. The extent of the territory is only one factor. The number, kind, value and locations of the structures therein, the uses to which the territory is adapted, and all the surrounding facts and circumstances are to be considered. No hard and fast rule can be laid down. Each case must depend upon its own facts. * * * ”

[193 Miss. 536, 10 So.2d 174.]

Relator in support of its contention that the preliminary injunction was improperly issued here relies principally on the case of Moss v. Burke & Trotti, Inc., 198 La. 76, 3 So.2d 281, cited supra. The decision in that case is not controlling and is clearly distinguishable from a factual viewpoint, as pointed out by the trial judge in his return to the rule issued herein, in which he said:

“ * * ' * respondent avers that in the case of Moss v. Burke & Trotti, supra, the identical point was at issue as in the case at Bar, but in that case the Court found that the proposed funeral home would not be in a strictly residential area as in the case at Bar, for in the Moss v. Burke & Trotti case, which originated in Lake Charles, the defendant’s establishment was to be located in a district both residential and commercial in its nature, and in addition, the plaintiff in that case' complained only of the depreciated value of his residence property and sought to recover damages for loss of rent and depreciation, and in addition, there was a blacksmith shop in the very block with the undertaking establishment; there was the City Hall property of the City of Lake Charles in the adjoining block, which fronted the chief business street of Lake Charles; there was in an adjoining block the grocery store, and in still another adjoining block, the city fire station and a filling station, joined by a cleaning and dyeing establishment, all of which physical aspects are entirely contrary to the facts in the case at Bar.”

In that case this court found as a fact, as pointed out by the trial judge in this case, that the area in which the funeral home was located was semi-commercial or in transition from a residential area to a commercial area, and under such finding of fact refused to enjoin defendant from conducting a funeral home in the district. The decision in that case is correct and is in full accord with the uniform jurisprudence throughout the country that under such facts an injunction will not issue. See authorities cited supra. The Supreme Court of Iowa in a 1950 decision viewed the Burke & Trotti case as did the district judge in this case, citing it as supporting the statement that “A number of courts have refused to enjoin establishment of a funeral home in a location close to the business district or in a state of transition from residences to commercial uses. * ' * * ” ³

The principle underlying the majority rule is found in Article 667 of our LSA-Civil Code, which provides:

“Although a proprietor may do with his estate whatever, he pleases, still he can .not make any work on it, which may deprive his .neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

After a careful review of the law, all the admissible evidence, and the pleadings in the instant case, we are not in a position to say that the trial judge abused his discretion in denying- to defendant-relator a suspensive appeal.

For the reasons assigned, the writs issued herein are recalled, and the case is remanded to the district court for trial on its merits consistently with the views expressed herein. Relator is to pay all costs incurred in this, court; all other costs are to await the final disposition of the case on its merits.

1 . Alabama, California, 'Connecticut, Georgia, Indiana, Iowa, Kansas, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New York, Oklahoma, South Carolina, Texas, Virginia, Washington, and Wisconsin.

2 . Kentucky, New Jersey, and Oregon.

3 . Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726, 731.