Opinion
15436
1941.
Before G.B. GREENE, J., Colleton County, July, 1941. Affirmed.
Suit by O'H. Fraser et al., and all other persons similarly situated, against the Fred Parker Funeral Home to enjoin the operation of a funeral home in the residential area of the Town of Walterboro. The matter was referred to R.P. Searson, Esq., of Allendale, as Special Master, who found that the operation of the funeral home did not constitute a nuisance, and recommended that a permanent injunction be denied and that the complaint be dismissed. To that report the plaintiffs filed exceptions, directed to the issue of whether the operation of the funeral home was a private nuisance. From a decree of the Court of Common Pleas overruling the Special Master's recommendations and permanently enjoining defendant in compliance with the prayer of the complaint, the defendant appeals.
The decree of Circuit Judge G.B. Greene, adopted as the opinion of the Court follows:
This suit came on for hearing before me at the April, 1941, term of Court at Walterboro, but was continued to be heard at Allendale on April 22, and there, by agreement of all the parties, it was marked heard and the hearing completed at Anderson, South Carolina, on the 5th day of May, past, and taken under advisement.
Soon after the suit was commenced, Judge J. Henry Johnson heard arguments on the demurrer which had been filed to the complaint and on the motion for an injunction pendente lite, and in a most elaborate opinion and order overruled the demurrer and granted the temporary injunction which had been applied for. He also entered a general order of reference, referring the issues involved to R.P. Searson, Esq., of Allendale, as Special Master. The reference was held, much testimony taken, and the Special Master has filed an able and most interesting report.
It appears that the defendant about December 19, 1939, removed its business from the business district and commenced the operation of an undertaking establishment in the residential area of the Town of Walterboro, in which are located the residences and homes of the several plaintiffs, and these twelve plaintiffs seek an injunction against the defendant on the ground that under the circumstances the maintenance and operation of this undertaking establishment by the defendant constitutes a private nuisance and materially and unlawfully interferes with their use of their several properties as residences and homes. The defendant files its answer, and the only issue involved is as to whether the defendant's operation of its undertaking establishment at this particular location constitutes a private nuisance. The Special Master finds that the operation of the undertaking establishment by the defendant does not constitute a nuisance and recommends that the application for a permanent injunction be denied, and that the complaint be dismissed. To this report the plaintiffs file exceptions, some nineteen in number, but they all, as a matter of fact, are directed to the single issue (which is a mixed issue of fact and law) as to whether the operation of the undertaking establishment by the defendant in this particular location and under circumstances as revealed by the evidence is a private nuisance. The defendant files no exceptions.
The Master has found that the portion of Wichman Street, in the Town of Walterboro, to which the allegations of the pleadings are related, is a residential area, and that the plaintiffs in this cause are normal, reasonable, sensible people. No exceptions are taken to these findings, and, therefore, these are determined facts in so far as this hearing is concerned. It appears that this immediate section is some several blocks east of the business area of Walterboro, and that except for the location of some two or three churches (which fact does not militate against the idea of the area being a residential area), there are no institutions other than residences along the portion of Wichman Street where these plaintiffs reside and where the defendant has its undertaking establishment. The only exception at all to this is a small shop in the corner of the yard of one of the plaintiffs, which is used intermittently and more with the idea of recreation than that of business. It further appears that the building now used as an undertaking establishment by the defendant was many years ago constructed as and for a residence, and was used exclusively as such until it was purchased by the defendant's manager some two years before the establishment of this undertaking business, and it was renovated and continued to be used by the manager of the defendant, Mr. Parker, as a residence for his family until December, 1939, when he moved his undertaking business to his residence and constructed a small building in the yard thereof for a garage and display room for caskets, etc., so as to accommodate the premises to the operation of his undertaking establishment upon the lot, and continued to live in a part of the house with his family. Though the lot is owned by Mr. Parker, the manager of defendant, the undertaking business is incorporated and appears as the defendant in this action. I further find that this residence now so converted into an undertaking establishment is located approximately one hundred feet right in front of and across the street from the building owned by the plaintiff, Tommie C. Smoak, which is occupied and used by her and her family as a place of residence or home. The defendant has, in a commendable manner, given heed to some of the complaints of his neighbors against some of his practices, but has refused to agree to remove the operations of his undertaking establishment to some place outside of this particular area. However, I do find that with all the consideration that the defendant's manager has evidenced toward his neighbors, the operation of this undertaking establishment as now located has materially, tangibly and substantially injured the plaintiffs in their lawful use of their several properties. Its operation has caused depressing feelings to the plaintiffs, has been a constant reminder of death, has appreciably impaired their happiness, and with some has apparently weakened their powers to resist disease, has depreciated the values of their properties, and has materially interfered with the use of their several residences as homes, impairing their comfort and happiness, and the comfort and happiness of the members of their families.
I further find that there has been nothing about the operation of this undertaking establishment that would differentiate it from the ordinary undertaking establishment in its operations; that the defendant is now conducting approximately one hundred and twenty (120) funerals a year, that is, an average of one about every three days, and that though comparatively few of these funerals are held from this particular location, nevertheless, all of the embalming and preparation of the bodies is done at this particular house; that bodies are kept there for varying periods; that in nearly every instance the members of the family come to this establishment for the purpose of making arrangements, buying coffins and caskets; that on occasions bereaved relatives are noticeably audible in their laments; that the hearse does go to and fro; that a bright light is made to shine in the back yard when bodies are brought in at night, and when at night there are other activities incident to the business, and that without attempting to anticipate what additional activities will develop as this business grows, the handling of this number of funerals during the year would indicate that on a vast majority of the days in the year there would be such activity around this establishment as would constantly remind those residing near of death and the gruesomeness of the defendant's occupation. It takes no stretch of imagination to appreciate the reality of this disturbance and injury to the comfort and happiness of a home, and particularly the effect on young children in a home, when you visualize such an institution across the street approximately one hundred feet from your own residence. I do not want to leave the impression that I consider the operation of an undertaking establishment lacking in honor, desirability and service. I have observed with a great deal of appreciation the fine service rendered by undertakers in taking bodies of our dead away from our homes for embalming purposes and for preparation for burial, thereby materially relieving the occupants of the homes of the deceased of the consciousness of the gruesomeness of the operation of embalming and such preparation. However, the gathering in of the dead of a county to one spot, and that in a residential area, such as described in the testimony in this cause, with its attendant injuries to the plaintiffs, cannot be justified by the fine service that is done for those who are in bereavement. One of the essentials of a well ordered home is cheerfulness, and as the defendant's manager testified, "I would not be gay around people in distress." Those activities and incidents of plaintiffs' homes which add substantially to their cheer have been and will hereafter be materially interfered with due to the normal, natural and commendable respect which the plaintiffs have and should have for the dead at the defendant's establishment and their relatives. In this particular case, there is substantial and convincing evidence as to the effect of the operation of this undertaking establishment upon those in the immediate neighborhood; depression, nervousness, lying awake at night, children made excited, children alarmed and insisting on sleeping with their parents, families changing their sleeping quarters, families ceasing to use their porches as open air dining rooms, ceasing to use their sitting rooms that are directly opposite the undertaking establishment, servants' habits so affected as to add to the expense and annoyance of their employers; and these are some of the effects of the location and operation of this undertaking establishment in this particular area, and which are direct and proximate results thereof. All of the foregoing findings are supported by the clear preponderance of the evidence in this case, and all of which would result in irreparable injury to the plaintiffs.
This case may be said to be of novel impression in this State, however, the principles of law governing it have always been recognized in this jurisdiction and have been applied many times.
Apparently among the States of the Union there have developed two rules in the matter of determining whether an undertaking establishment located in a residential area of a community is or is not a nuisance. The opinions following the minority rule would seem to hold that before the establishment of an undertaking business in a residential area could be said to be a nuisance, there must be a substantial invasion of the adjoining properties by inordinate noises, substantial danger of the spread of disease, escaping of noxious odors, etc. Those opinions which follow the majority rule hold that if the undertaking establishment in a purely residential section, from its normal operations, causes depressing feelings to the families in the immediate neighborhood and is a constant reminder of death, appreciably impairs their happiness or weakens their powers of resistance and depreciates the value of their properties, then such an establishment would constitute a nuisance. The Special Master is favorably impressed with the minority rule and cites those cases which it is thought justify the rule, to wit: Pearson Son v. Bonnie, 209 Ky., 307, 272 S.W. 375, 43 A.L.R., 1166; Westcott v. Middleton, 43 N.J. Eq., 478, 11 A., 490; and he further cites Goodrich v. Starrett, 108 Wn., 437, 184 P., 220.
Judge Johnson, in his order granting the temporary injunction, apparently made a most extensive study of this question and follows the cases which are in accordance with the majority rule, as above stated. In regard to this order of Judge Johnson, I hold that it is not binding on me, and is not necessarily the law in this case, however, after a careful study of the authorities, I find myself in full accord with his conclusions.
I have carefully considered the cases cited by the Special Master. The one from New Jersey, decided about 1888, Westcott v. Middleton, supra, reveals an entirely different set of facts than that presented in the case now under consideration. The undertaking establishment there was not in a residential section of the city, though some people resided in the upper floors, the lower ones being occupied for business purposes; the sole complaint was not a normal person, as in the case at bar, but was super-sensitive, and the undertaking establishment had been in operation for many years and the complainant had for eleven years lived in the same quarters up over a store adjoining the building where the defendant had his undertaking establishment, and during the whole of the eleven years had never made any complaint. As stated above, this Westcott case presents a different situation from that found in the case at bar where the operation of the defendant is in an area solely used for residential purposes, and the Referee has rightly held in the case at bar that the plaintiffs are normal and sensible people. In the case of Goodrich v. Starrett, supra, cited by the Master, the undertaking establishment had been in operation for long years, was unscreened, and swarms of flies came in and out of the place; they received bodies of those dying with contagious and infectious disease, and there were no sewer connections with the building, and the Court found the place to be a nuisance. But this is far from saying that the trial Court would not have granted the relief asked for in the case at bar.
In Pearson Son v. Bonnie, supra [ 209 Ky., 307, 272 S.W., 376, 43 A.L.R., 1166], the main authority cited by the Special Master, the Kentucky Court says that a lawful business may be enjoined as a business when located in an inappropriate place, as for instance, a rendering plant in a thickly populated and residential neighborhood, and that the reason that such would be a nuisance is that the injury or annoyance "is of a real and substantial character and such as impairs the ordinary enjoyment, physically, of the property within its sphere," however, the Court states that if the injury "be merely a sentimental one," though it be accompanied by depreciation in the market value of the neighboring property, there is no nuisance in a legal sense, and the Court concludes, after reviewing three nuisance cases from its state, that the location of a lawful business is not rendered inappropriate simply because the value of the adjacent property is thereby depreciated and the sentiments and feelings of the owners touched. I cannot agree with the Kentucky Court that it has correctly stated the legal issue for it apparently was not fully mindful of the special type of use that the complaining parties were making of their several properties. No higher use could be made of a piece of property than to have established thereon this greatest of all institutions, the home. It is not simply a place of residence, a house, but an institution that carries with it the idea of ultimate retreat, security, or release from the cares and struggles for a living, an atmosphere in which the young are reared, an atmosphere in which the aged are cared for, an institution definitely recognized and fostered under a wise public policy; and where a section of a town or community has, as a matter of fact, been appropriated, as in the case at bar, by the immediate owners of real estate for use as homes, such distinct institutions should, as far as the law will allow, be protected. Such institutions are distinct and real and have distinct and necessary characteristics, one of which is cheer. Nor can I agree with the Kentucky Court that the injury complained of is merely a sentimental injury when the comfortable enjoyment of the homes, such as is testified to in the case at bar, is materially interfered with by the operations of defendant's undertaking establishment. This is not a question of one having a strong emotional attachment for a particular spot or building or thing, and having this attachment or sentiment "touched", for homes are real institutions, the products of our physical, mental and spiritual efforts. Certainly if the health of the inmates of plaintiffs' homes and the cheerfulness of such homes are being injured, such as is testified to in this proceeding, by the operation of the undertaking establishment of the defendant, there is a recognized real and substantial and unlawful interference with the ordinary comfort thereof.
This is not a case of trying to balance the rights of a home owner with the rights simply of a business operator, and if it were we could not be unmindful that America's future is greatly determined by its homes, and that the "strength of a nation, especially a republic, is in the intelligent and well ordered homes of the people". However, in the case at bar we have a peculiar type of business, the operations of which tend to, and according to the testimony in this instance, materially impairs the use of plaintiffs' properties as homes.
As stated by Chief Justice Cooley, of the Michigan Court: "Even the most offensive trade, as we have seen, is allowed to be carried on in a remote place; and this means, not a place remote from all other occupations and trades, but remote from such other occupation or trade as would be specially injured or incommoded by its proximity; in other words, in a place, which, in view of its offensive nature, is a proper and suitable one for its establishment. The most offensive trades are lawful, as well as the most wholesome and agreeable; and all that can be required of the men who shall engage in them is, that due regard shall be had to fitness of locality. They shall not carry them on in a part of the town occupied mainly for dwellings, nor, on the other hand, shall the occupant of a dwelling in a part of the town already appropriated to such trades, have a right to enjoin another coming in because of its offensive nature. Reason, and a just regard to the rights and interests of the public, require that in such case the enjoyments of pure air and agreeable surroundings for a home shall be sought in some other quarter; and a party cannot justly call upon the law to make that place suitable for his residence which was not so when he selected it." Gilbert v. Showerman, 23 Mich., 448.
Our own Supreme Court in Frost v. Berkeley Phosphate Company, 42 S.C. 402, 20 S.E., 280, 283, 26 L.R.A., 693, 46 Am. St. Rep., 736, quotes with approval from Blackstone, as follows: "if one does any other act in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's property, it is a nuisance, for it is incumbent upon him to find some other place to do that act, where it will be less offensive."
I conclude that the South Carolina law and public policy is not consistent with the pronouncements in the case of Pearson Son v. Bonnie, supra. I have carefully considered all of the other authorities cited by the Special Master and the attorneys for the defendant, and without extending this rather long decree, will but say that they do not add materially to the defendant's position.
Though our Courts have not heretofore passed on the question of whether an undertaking establishment is or is not a nuisance under some circumstances, yet, as stated above, the law governing such is well set forth in our cases.
In the case of Frost v. Berkeley Phosphate Company, supra, our Supreme Court had under consideration the correctness of the following charge of the Circuit Judge: "A man has the right to engage in any lawful occupation, or to use his premises in any proper and lawful industry, but in the exercise of his rights he must so use his property as not to unlawfully and unreasonably injure his neighbor's property." The learned Chief Justice McIver, writing the opinion of the Court, states that this charge is open to two objections, first, that it does not give the jury a rule or principle upon which to determine whether the defendant had made a lawful use of his property; and, second, that "it unwarrantably limits the operation of the maxim, `Sic utere tuo ut alienum non laedas,' so as to allow the owner of a tract of land to so use his own land in the prosecution of any lawful business as would necessarily or probably injure his neighbor, provided he takes all reasonable care to prevent such injury." The Chief Justice continues: "This we do not understand to be the law. On the contrary, we think, if one uses his land for the prosecution of some business from which injury to his neighbor would either necessarily or probably ensue, he is liable if such injury does result, even though he may have used reasonable care in the prosecution of such business." The Court supports this position by a long line of authorities from which it quotes freely. The doctrine laid down in Frost v. Berkeley Phosphate Company is cited with approval by our Court in Matheny v. Aiken, 68 S.C. 163, 178, 47 S.E., 56; Henry v. Southern Railway Company, 93 S.C. 125, 129, 75 S.E., 1018; Peden v. Furman University, 155 S.C. 1, 151 S.E., 907, 912. A lawful business, when inappropriately located, may be a nuisance. "The place at which at thing is done may determine whether it is or is not a nuisance. While a livery stable is not a nuisance per se when properly located, it would be a nuisance in some places, without regard to how it was built or kept." Douglas v. City Council of Greenville, 92 S.C. 374, 75 S.E., 687, 689, 49 L.R.A. (N.S.), 958.
Under the facts of the case at bar, and under the law as I find it in this State, I conclude that the operation by the defendant of its undertaking establishment at its present location is a private nuisance. This conclusion is supported by the overwhelming majority of eminent text-writers and commentators, as well as by the overwhelming majority of the decisions of Courts of last resort in other jurisdictions in this country in cases in which the facts are similar to those of the case at bar. We find in Cooley on Torts, Fourth Edition, 1932, Volume III, at page 180, under the heading of "Undertaking Establishments," the following: "An undertaking establishment is not a nuisance per se, and by some courts it is held that even when located in an exclusively residential district with the result, because of sentimental repugnance on the part of those who might reside near it, property values in the vicinity would depreciate, such establishment would not be enjoined. By what appears to be the weight of modern authority, however, it is held that the location of such a business in a residential district is sufficiently objectionable to make it a nuisance. Thus it has been stated: The inherent nature of an undertaking establishment is such that, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of resident property, produce material annoyance, and inconvenience to the occupants of adjacent dwellings and render them physically uncomfortable and in the absence of strong showing of public necessity, its location in such a district should not be permitted over the protest of those who would be materially injured thereby." (There is no showing of necessity in the instant case.)
Or, as said in the annotation in 87 A.L.R., 1062: "The greater weight of recent authorities is to the effect that the establishment and operation of an undertaking business in a purely residential section under circumstances which would cause a depressing feeling to the families in the immediate neighborhood and a constant reminder of death appreciably impairing their happiness or weakening their powers to resist disease, and depreciating the value of their property, constitutes a nuisance."
"The basis of injunctive relief by courts in these cases seems, in the last analysis, to have been the fact that constant reminders of death, such as an undertaking establishment and the activities connected with it, impair in a substantial way the comfort, repose and enjoyment of the homes in that immediate neighborhood." The Oklahoma Court concludes, "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." Jordan v. Nesmith, 132 Okla. 226, 269 P., 1096, 1100.
"While equity does not concern itself with any and every petty annoyance incident to the congested life of a modern community ( Ross v. Butler, 19 N.J. Eq. 294, 97 Am. Dec. 654) yet equitable relief will be granted at the instigation of a private individual upon a sufficient showing that the persistent misconduct of another or the use to which another has devoted his property is such as to cause the aggrieved party positive and serious annoyance, mental or physical; and it hardly needs evidence or argument (although neither is wanting in this case) to demonstrate that people of ordinary sensibilities, whose homes are in close proximity to a place where dead bodies are received at all hours of the day or night, where the awesome business of embalming is conducted, where hearses come and go, where funeral processions assemble, where funeral sermons are preached and dirges sung, would be subjected to annoyances of a peculiarly depressing and aggravating character. Persons subjected to such constantly recurring incidents and dismal circumstances could not enjoy their homes in peace and quietude; the laughter and play of their children about their own door-yards would seem heathenish and unfeeling in such a doleful environment. Social and family gatherings in residences so placed would be a pathetic caricature of happiness and enjoyment." Leland v. Turner, 1928, 17 Kan. 294, 230 P. 1061, 1063.
"The greater weight of authority is to the effect that the establishment and operation of an undertaking and embalming business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood and a constant reminder of death which appreciably impairs their happiness, and damages the value of their property, constitutes a nuisance. * * * Appellants say that there is no showing of an irreparably injury. We think the depreciation in the value of the property shown and the constant depressing influence the maintenance of his undertaking establishment will have upon the appellees, and the resultant annoyance and discomfort, all tending to destroy their peace of mind and happiness, constitute an irreparable injury within the meaning of our law." Albright v. Crim et al., 1933, 97 Ind. App. 388, 185 N.E. 304, 308.
"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." Saier v. Joy, 1917, 198 Mich. 295, 164 N.W. 507, 508, L.R.A., 1918-A, 825.
"An undertaking establishment stands on a different footing from that of the occasional corner grocery and oil filling station * * *. The latter may offend the aesthetic sense of those living in their proximity; the former would destroy, in an essential respect, the comfort and repose of their homes." Tureman v. Ketterlin, 1924, 304 Mo. 221, 263 S.W. 202, 204, 43 A.L.R., 1159.
"The court further finds that the comfort, repose and enjoyment of the homes of the plaintiffs would be materially diminished by the mental depression and distress caused by the constant going and coming of hearses, the frequent taking in and out of dead bodies, the frequent funerals with the attending mourning, hymn singing and attending noises, thoughts of the unknown dead in the morgue, the thought of autopsies, embalming and other matters commonly associated in the mind of the average person with a morgue to the extent that the power of resistance to disease of these plaintiffs would be lowered by the resultant mental depression and distress, rendering such persons more susceptible to disease, and that the plaintiffs would be deprived of the use, comfort, repose and enjoyment of their homes to which they are entitled and that by reason of the foregoing the plaintiffs are entitled to a permanent injunction." Hatcher v. Hitchcock, 1929, 129 Kan. 88, 281 P. 869, 871.
"These cases (Georgia cases) are in accord with what seems to be the greater weight of recent authority, to the effect that the establishment and operation of an undertaking business in a section essentially and distinctively devoted to residential purposes, so as to bring the residents into close association with the moving and embalming of dead bodies, funerals, and harrowing incidents of death, with resulting inevitable injury to the health and happiness of such residents, as well as depreciation in the value of their property, may be an enjoinable nuisance." McGowan et al. v. May, 1938, 186 Ga. 79, 196 S.E. 705.
In the two following cases there are some facts which might distinguish them from the case at bar, however, the same principle is recognized: Williams v. Montgomery, 1939, 184 Miss. 547, 186 So. 302, 303, in which the Court said, "It is true that a funeral home is now deemed a necessity, but its business is — dealing with the dead in a most gruesome manner," and the Court further said that by the weight of authority in this country a funeral home, conducting its business in the usual way, which protrudes itself upon a residential district, such as described in that case, may be perpetually enjoined; Densmore v. Evergreen Camp, 1910, 61 Wn. 230, 112 P. 255, 31 L.R.A., N.S., 608, Ann. Cas., 1912-B, 1206, in which the Court stated that it may be accepted as within the common knowledge of men that the immediate presence "of those mute reminders of mortality, the hearse, the chapel, the taking in and carrying out of bodies, etc., cannot help but have a depressing effect upon the mind of the average person, weakening * * * his physical resistance, and rendering him more susceptible to contagion and disease."
In the oral argument of the case at bar counsel for the defendant called to my attention the fact that in some of these cases from which the above quotations are taken there were municipal ordinances involved. An examination of these authorities, however, reveals that in no instance did the Court base its decision on the existence of such an ordinance.
It is, therefore, ordered, adjudged and decreed:
1. That plaintiffs' exceptions to such findings and conclusions of the Special Master as are inconsistent with my findings and conclusions as herein announced be and they are hereby sustained; that such inconsistent findings and conclusions of the Special Master be and they are hereby overruled and reversed; and that otherwise the report of the Special Master is confirmed;
2. That the defendant, its agents, servants and successors, be and they are hereby permanently enjoined from using the premises and buildings described and referred to in the complaint as No. 156 Wichman Street, in the Town of Walterboro, South Carolina, or any part of such premises and buildings, as and for an undertaking establishment, funeral home or morgue, and from permitting any such premises and buildings, or any part thereof, to be used as an undertaking establishment, funeral home or morgue.
Mr. George Warren, of Hampton, Mr. Heber R. Padgett, of Walterboro, and Mr. John W. Crews, Mr. D.W. Robinson, Jr., and Mr. Jos. L. Nettles, Jr., all of Columbia, counsel for appellant, cite: As to nature of present proceeding: 3 S.C. 438; 82 S.C. 181, 63 S.E. 884; 17 S.C. 411; 42 S.C. 92, 19 S.E. 1009; 193 S.C. 422, 8 S.E.2d 737; Code of 1932, Secs. 7233, 7432; 92 S.C. 374, 75 S.E. 687; 183 S.C. 263, 190 S.E. 826; 186 S.C. 232, 196 S.E. 1; 157 S.C. 496, 154 S.E. 756 (Differentiating all of above cases from the instant case); 102 S.C. 442, 86 S.E. 817; 193 S.C. 25, 36, 7 S.E.2d 635. As to Court's conclusions in case of Novel Impression: 190 S.C. 529, 3 S.E.2d 606; 193 S.C. 422, 8 S.E.2d 737; 188 S.C. 39, 198 S.E. 419; 194 S.C. 115, 8 S.E.2d 351. Authorities from other Jurisdictions: 43 N.J. Eq., 478, 11 A. 490 (1887); 103 Wn. 429, 174 P. 61, 1 A.L.R., 541 (1918); 174 P., at page 962; (Cal., 1922), 203 P. 1015, at pages 1016, 1018; 209 Ky. 307, 272 S.W. 375, 43 A.L.R., 1166 (1925) (Compare with 186 S.C. 232, 240, 196 S.E. 1); (Ore., 1925), 241 P. 73, 43 A.L.R., 1160, in which Court distinguishes three cases relied upon by Judge Greene; 250 Mich. 579, 230 N.W. 948, 949 (1930); (La., June, 1941), 3 So.2d 281, at page 284; 29 Cyc., 1156; Compare 75 Ohio St., 79 N.W. 471 (1906). As to degree of proof: 193 S.C. 422, 425-6, 8 S.E.2d 737; 17 S.C. 411, 43 Am.Rep., 607. As to effect of License issued by Town Council: 230 P. 1096, 43 A.L.R., 1159; 92 S.C. 374, 75 S.E. 687; 183 S.C. 263, 190 S.E. 826; 157 S.C. 496, 154 S.E. 756; 131 S.C. 471, 128 S.E. 410; See 6 Stat., 288, 1 Rich., 385; 172 S.C. 16, 172 S.E. 689; 181 S.C. 143, 186 S.E., 783; 193 S.C. 390, 8 S.E.2d 905. As to Order granting temporary Injunction and overruling Demurrer being Law of Case: 60 S.C. 559, 658, 29 S.E. 183; 114 S.C. 375, 381, 103 S.E. 759; 103 S.C. 455, 88 S.E. 5; 158 S.C. 63, 65, 155 S.E. 228; 159 S.C. 1, 156 S.E. 1; Code 1932, Sec. 1932; 173 S.C. 464, 486, 176 S.E. 589; 156 S.C. 437, 153 S.E. 460.
Mr. Randolph Murdaugh, Jr., of Hampton, Mr. I.A. Smoak of Walterboro, Mr. Samuel L. Prince of Anderson, and Mr. D. McK. Winter, of Columbia, counsel for respondent, cite: As to determined facts being reviewed on appeal: 58 S.C. 495, 36 S.E. 1010; 89 S.C. 398, 71 S.E. 991; 45 S.C. 57, 22 S.E. 790; 84 S.C. 181, 65 S.E. 1048; 45 S.C. 262, 22 S.E. 88; 178 S.C. 226, 182 S.E. 154; 4 P.2d 437; 220 Ala. 556. As to hearing on appeal questions not presented to lower Court: 37 S.C. 417, 16 S.E. 134; 180 S.C. 449, 186 S.E. 371; 105 A.L.R. 1512; 182 S.C. 399, 189 S.E. 468; 193 S.C. 260, 8 S.E.2d 339; 196 S.C. 316, 13 S.E.2d 442; 195 S.C. 213, 10 S.E.2d 305; 187 S.C. 260, 196 S.E. 883. As to Municipal License: 43 C.J. 400; 281 P. 869 (Kan.); 31 L.R.A. (N.S.), 61 Wn. 230 ; 193 S.C. 25, 7 S.E.2d 635; 129 Kan. 88, 281 P. 869 (1929); 43 C.J., 260, Sec. 266; (W.Va.), 79 S.E. 736; 20 R.C.L., 501, Sec. 117; 11 Rich. L., 217; 20 R.C.L., page 442, Sec. 56; 25 A.L.R., 758; 13 A.2d 825 (N.J. Eq.). As to principle of law involved in present case: 142 S.C. 402, 20 S.E. 280; 22 S.C. 476; 85 S.C. 6; 193 S.C. 422, 8 S.E.2d 737; 43 N.J. Eq., 478; 209 Ky. 307, 272 S.W. 375, 43 A.L.R., 1166 (1925); (Kan., 1931), 4 P.2d 437; 83 Kan. 86, 109 P. 788, 29 L.R.A. (N.S.), 49; 117 Kan., 294, 230 P., 1061; 129 Kan. 88, 281 P. 869; 298 N.W. 386 (Mich., June 2, 1942); 144 Misc., 483, 258 N.Y.S. 886; 184 Miss., 547, 186 So. 302; 198 Mich. 295, 164 N.W. 507, L.R.A., 1918-A, 825; 237 Mich. 130, 211 N.W. 67.
Counsel for appellant, in reply, cite: As to Judicial Notice: 180 S.C. 19, 31, 185 S.E. 25; 51 S.C. 141, 144, 61 S.E. 1079; 170 S.C. 521, 528, 171 S.E. 32; 143 S.C. 104, 111-112, 141 S.E., 180. As to Municipal License: 193 S.C. 25, 26, 7 S.E.2d 635.
I am unable to concur in the opinion of Mr. Acting Associate Justice Lide. For the reason stated in the decree of Judge Greene, I concur in it.
MR. ASSOCIATE JUSTICE STUKES and CIRCUIT JUDGE G. DEWEY OXNER, ACTING ASSOCIATE JUSTICE, concur.
In the absence of a zoning ordinance or other control, as here, I think each such case should be decided upon its own particular facts (87 A.L.R., 1061), which is the final conclusion announced in the opinion of Mr. Acting Associate Justice Lide, and I am in accord with it. However, I do not agree that the evidence in this case warrants the reversal of the findings contained in the Circuit decree, so I join the Chief Justice in favoring its affirmance.
I am of opinion that the judgment of the Circuit Court should be affirmed. In reaching this conclusion I have considered the portion of Wichman Street involved as a residential area. Such was the conclusion of fact found by the Special Master, who probably made a careful inspection of Wichman Street and who had the benefit of seeing and observing the witnesses. This finding of fact was confirmed by the Circuit Judge.
While the decisions upon the question are widely divergent, I think the view adopted by the Circuit Judge is in accord with the great weight of authority and is sound in principle. His view is also in accord with the modern trend of the decisions in those jurisdictions where the precise question arose as one of first impression. Jordan et al. v. Nesmith et al., 132 Okla. 226, 269 P. 1096; Williams et al. v. Montgomery et al., 184 Miss. 547, 186 So. 302; Albright et al. v. Crim et al., 97 Ind. App. 388, 185 N.E. 304; Arthur et al. v. Virkler et al., 144 Misc. 483, 258 N YS 886.
I think the following language from the recent case of Kundinger et al. v. Bagnasco et al., 298 Mich. 15, 298 N.W. 386 387, decided in June, 1941, clearly and correctly sets forth the applicable principles of law: "It requires no expert opinion to reach the conclusion that a funeral establishment, as a constant reminder of death, has a depressing influence upon most people. Funerals, hearses, coffins, the keeping of dead bodies on the premises, the comings and goings of bereaved persons, are conducive to depression, and sorrow, and deprive a home of the comfort and repose to which its owners are entitled. It is not necessary to show danger from disease or unpleasantness of odors arising from the maintenance of such a business in order to enjoin it. Arthur v. Virkler, 144 Misc. 483, 258 N YS. 886; Williams v. Montgomery, 184 Miss. 547, 186 So. 302. Emotions, caused by the constant contemplation of death, as well as the realization that the bodies of deceased persons are often, if not continuously, on such premises as those here in question, are more acute in their painfulness, in many cases, than suffering perceived through the senses; and mental pain and suffering are elements of damage, in the eyes of the law. Where there can be said to be a long-established residential district, such as in this case, the intrusion of the funeral business therein will be restrained as a nuisance by injunction."
In reaching a conclusion in a case of this kind it is necessary to bear in mind the particular facts involved. Cases may arise in a residential area where those complaining are so far removed that they could not reasonably be said to be affected, or where they have allowed a funeral home to be permanently established and remain for an appreciable length of time unchallenged. We are not dealing now with cases of the kind just mentioned. Under the facts found by the Special Master and Circuit Judge, I think the injunction sought should be granted.
This action was brought to enjoin the operation of a funeral home at a certain place in Walterboro. The respondents were the plaintiffs in the Court below, and will be hereinafter referred to as such; and the appellant, which was the defendant in the Court below, will likewise be hereinafter referred to as such. The defendant is a corporation, the property and business of which are owned and controlled by D. Fred Parker and his wife, and hence Mr. Parker may sometimes be referred to as though he were the defendant. The case comes to this Court upon defendant's appeal from the decree of Judge Greene granting a permanent injunction.
The complaint alleges inter alia that the plaintiffs are property owners or have interests in property on Wichman Street, in the Town of Walterboro, and that "on or about the day of December, 1939", the defendant received a license from the Town of Walterboro to conduct a funeral home on Wichman Street, and thereupon the Fred Parker Funeral Home was removed from its location in the business area of the town and operated in the residence of Mr. Parker at 156 Wichman Street, and that it "has been and is being continually operated at the said location."
It is further alleged that the location is in an essentially and exclusively residential section and: "That because of the fact that said Funeral Home is located in this residential section, the plaintiffs residing in said section are almost daily brought into close association with the moving and embalming of dead bodies, funerals, and the harrowing or distressing incidents of death, causing them to suffer great mental anguish, physical discomforts, thereby affecting their health and disturbing the peace and comfort of their homes and causing their property to decrease in value, tending to disrupt domestic help, to mortify and depress growing children, and causing other damage."
It was then alleged that the acts of the defendant constitute a continuing nuisance causing irreparable damages for which the plaintiffs have no adequate remedy at law, and the prayer is for injunction and general relief.
Upon this complaint, which was duly verified, a temporary order of injunction was granted by Honorable J. Henry Johnson, resident Circuit Judge, dated April 26, 1940. In due time the defendant interposed a demurrer to the complaint upon the ground that it showed upon the face thereof that the town council had granted a license for the operation of the funeral home involved, and that the plaintiffs have an adequate remedy at law; and the defendant also moved for a dissolution of the temporary injunction. Judge Johnson, however, overruled the demurrer and refused the motion to dissolve (but increased the injunction bond) by order dated May 10, 1940.
The defendant's answer is full and elaborate, denying the allegations charging it with the creation of a nuisance, but admitting that pursuant to the license granted by the Town of Walterboro, the funeral home was located at 156 Wichman Street, and alleging that it had been conducted at that place since December 18, 1939, "in a quiet, peaceful, unostentatious manner, and in accordance with the strictest sanitary requirements, and in a manner that would cause no normal person to have any grievance whatsoever by reason of their proximity to the said Funeral Home."
The answer also further sets up affirmatively the defendant's method of operating the funeral home, and among other things it is alleged: "That the location of the Fred Parker Funeral Home is in the residence occupied by D. Fred Parker and his family; that the bodies of persons deceased ceased are carried to the rear of the residence of the said Parker family by way of a side street and the entry-way to said side street, and that no person or persons who live on Wichman Street have any view whatsoever of any loading or unloading of deceased persons at said funeral home; that the rooms that are used for preparation of the bodies of deceased persons are at the rear of said residence and are not in proximity to the said Wichman Street; the windows of the preparation room are so located that it would be impossible for anyone from the outside to have any view whatsoever of any work in the interior. The front of said funeral home is the front of a normal residence, the rooms in the front portion of the house being an office and two living rooms. In front of said residence and funeral home are trees, shrubbery and flowers. That none of the work of the Fred Parker Funeral Home is conducted from the front of said residence, except the entry of persons calling at said home and those departing therefrom."
It is further alleged that there had been no zoning ordinances passed in the Town of Walterboro forbidding the location in question of defendant's funeral home, but on the contrary the legal authorities vested with power had granted the defendant a license to own and operate the same at the place in question, and that the location "is not exclusively in a residential section." And it is further alleged: "That defendant on receiving its license has expended in betterments and improvements to its said property at said place, for the purposes for which it was thereunto licensed, several hundred dollars, has beautified the grounds around the residence and funeral home, and has so constructed the same that the public and those living in the neighborhood will not be exposed to any association with the dead, nor to any harrowing or distressing incidents of death; and this defendant alleges that any grievances that plaintiffs may have in connection with the location of said funeral home at said place is purely fancied and imaginary."
And there are other allegations in the answer which need not be mentioned here, except that the defendant affirmatively alleged that the plaintiffs have an ample remedy at law by petition for revocation of the defendant's license, and that they had prior to the commencement of the action taken steps to invoke such a remedy.
On June 28, 1940, the cause was by order of Court, including all issues of fact and of law, referred to Honorable R.P. Searson, as Special Master, who after taking the testimony offered by the respective parties, the volume of which is quite considerable, filed his report dated March 7, 1941, in which he found as a matter of fact that the portion of Wichman Street to which all the allegations of the pleadings relate is a residential area, and: "That the defendant's funeral home was at the time of the filing of the complaint, conducted in the said area under modern scientific and sanitary methods, and in an unostentatious and considerate manner appropriate to the administration of a dignified and necessary calling." And the report contains a discriminating discussion of the law involved, upon which, in the light of the evidence, it was recommended that the temporary injunction be dissolved and the relief prayed for in the complaint refused.
Upon exceptions to this report filed by counsel for the plaintiffs, the cause was heard by Honorable G.B. Greene, presiding Judge, who handed down his decree dated July 11, 1941, permanently enjoining the defendant, its agents, servants and successors, from using the premises and buildings described and referred to in the complaint as No. 156 Wichman Street, in Walterboro, or any part of such premises and buildings, "as and for an undertaking establishment, funeral home or morgue." (It should be observed, however, that there is no testimony in the record which would sustain any charge that a morgue in the ordinary sense of that word had been or was intended to be operated in the place in question. Indeed, there is no such charge in the complaint.) Judge Greene does not sharply disagree with the Special Master on the facts, but he interprets them in the light of his contrasting views as to the applicable legal principles.
The order of Judge Johnson, the Special Master's report, and the decree of Judge Greene were all prepared with painstaking care and make more or less extended reference to the authorities, most of which are gathered from other states. Judge Greene's decree accords with the view of the law expressed by Judge Johnson, but goes more fully into the discussion of the cases. The appeal to this Court is of course based upon exceptions by the defendant to the decree of Judge Greene, but evidently in the abundance of caution there are also exceptions to the order of Judge Johnson refusing to dissolve the temporary injunction, although such an order does not determine the law of the case. Alston v. Limehouse, 60 S.C. 559, 39 S.E., 188. The plaintiffs by their attorneys also gave notice of certain "additional sustaining grounds." Fundamentally, however, there is but one question involved in this appeal, and that is: Did the operation of the funeral home by the defendant at the place in question and in the manner shown by the evidence constitute a private nuisance warranting injunctive or other relief?
We are fortunate in having before us three able and comprehensive dissertations on the law relating to the subject involved, to wit, the Special Master's report, Judge Johnson's order and Judge Greene's decree. And after carefully considering the same, reviewing the authorities therein mentioned, and such other authorities as we have been able to find, most of which are cited by counsel for the respective parties in their helpful briefs, and after analytical study of the testimony, it is our considered judgment that the Special Master reached the just and equitable conclusion, and we are in accord with his well-considered report in all substantial respects. In view of the importance of the issues involved we shall give in detail our reasons for this determination of the cause. And we think it is appropriate to say here that in our opinion this is a case where special weight should be given to the fact that the Special Master "saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result"; and furthermore, that he doubtless familiarized himself with the locale, because the record shows that it was agreed by counsel that he should "go and observe the location and surroundings of the funeral home and adjacent property in question", accompanied by one attorney on each side.
Perhaps a cursory review of outstanding portions of the testimony may be of help in clarifying the subordinate issues. The funeral home in question is located on the south side of Wichman Street, and this street is a part of State Highway No. 64, a much traveled and highly important highway because constituting a link in a short route to the South. The funeral home, which was and is the residence of Mr. Parker, fronts on Wichman Street but is at the corner of that street and an unpaved side street known as Tracey Street. A glance at the map in evidence, which was admittedly approximately correct, will show that the block where the funeral home is situate and the block immediately to the east of Tracey Street, while they contain residences, could scarcely be considered exclusively residential in the usual meaning of that term, in view of the fact that there is a Negro church and parsonage situated on each of them, besides other Negro homes, and there is a small workshop on one of them. The plaintiff, Mrs. M.M. Glover, has a home on the eastern block, but her residence is separated from the funeral home by the workshop on her premises, a Negro church and parsonage, and Tracey Street. In fact, the complaint itself alleges that the workshop "is approximately a block away" from the funeral home. However, Mr. W.C. Glover, who is a son of Mrs. M.M. Glover, and uses the small workshop, testified that the location of the funeral home depressed him, admitting, however, that funerals from the nearby Negro Church and other churches had a like effect upon him.
The plaintiff, O'H.W. Fraser, has a residence in the same block where the funeral home is situated, but separated from it by the residence of M.C. Rivers. Mr. and Mrs. Fraser testified to their objections to the location of the funeral home, and Mr. Fraser said that the "main thing was it depreciated my property". He qualified this by saying that that was his opinion; and Mrs. Fraser indicated that her objection was partly on account of their children. To the west of the Fraser home in the same block is the other Negro Church and parsonage. The occupants of the Rivers' house, which is about 20 feet from the funeral home, testified definitely that they did not object to the location and operation of the same.
North of Wichman Street there are two blocks on which certain of the plaintiffs own (or are interested in) residential property, and this area may more literally be described as residential, for the same appears to be exclusively so, except that the Episcopal Church is on the western end fronting on another street, and all of this territory is separated from the funeral home by Wichman Street; but even where zones have been created in a town, streets or highways may constitute the boundaries thereof.
Across this street on the northern side thereof, almost directly in front of the funeral home, is the residence of Probate Judge I.A. Smoak, who testified that his residence was approximately 90 feet from the funeral home; and the "defendant" Parker testified that from his measurements it was 134 feet from his home to Mr. Smoak's. Judge and Mrs. Smoak both testified quite positively and in detail that the presence of the funeral home was exceedingly distasteful and annoying to them, in that, its presence was a constant reminder of death; perceptibly sorrowing members of bereaved families sometimes visited the home; the bodies of deceased persons were conveyed to the home, although by the rear entrance; and it was their understanding that embalming operations were conducted therein. And they also testified that their little girl and a servant suffered like ill effects. However, Captain W.R. Ritchie, who with his wife occupied an apartment in the Smoak residence, testified just as unequivocally that he and Mrs. Ritchie were not at all disturbed by the presence of the funeral home, and that in fact it appeared to be an unusually quiet place, and that the appearance of the home was very pleasing to the eye and seemed to show the result of careful planning with reference to the grass and trees and shrubbery. Captain Ritchie also said that as he recalled it the lawn there looked better than any place on the street, that "it was a very pleasing sight."
Judge Smoak also expressed the opinion that the presence of the funeral home materially reduced the market value of his property. Testimony along the same line was given by the plaintiff H.L. Smith, whose home is also on the north side of Wichman Street, except that his objections to the funeral home were stated in a more qualified manner, and as to the matter of depreciation in value, he said in effect that he did not know about a funeral home, but he thought any mercantile establishment in that location would decrease values. There was also similar testimony from certain other witnesses for the plaintiffs; but Dr. W.H. Cone, a druggist and experienced business man, and Honorable James E. Peurifoy, former Circuit Judge, each of whom resides on the north side of Wichman Street near the funeral home, both testified that the presence of the home was not distasteful to them. Dr. Cone said that his family, including two children, were not adversely affected by it, and that it was his opinion that there had been no decrease in the value of his property. Judge Peurifoy, who is a man of long and varied business experience in Walterboro, stated positively that the funeral home did not disturb the comfort of himself and his family, and that he had not "seen anything that would indicate it was a nuisance." He further testified that the presence of the funeral home would not cause him to take any less for his property, and that he thought it was worth as much as it was before, but that he had not heard of any sale. There was also other like testimony for the defendant.
Without going any further into the testimony of this character, we may say that it appears to be correctly summarized by counsel for the defendant in their brief in which they say that the owners of six of the neighboring residence buildings objected to the location of the funeral home, while the owners of four thereof and the occupants of four more testified that its presence was not objectionable to them; and it may be added that with reference to the effect on children there was affirmative testimony in behalf of the defendant that some of the children in the neighborhood played with the Parker children in the yard at the Parker residence which was the funeral home. It will be remembered that the home was occupied as a residence by Mr. and Mrs. Parker and their two children.
The "defendant" D. Fred Parker testified at considerable length with regard to his operation of the funeral home. His testimony shows that by education, training and experience he was well fitted to perform the duties of an undertaker or mortician. Indeed, it was agreed by counsel for the plaintiffs for the purpose of the record "that he is a good undertaker." And at the time the testimony was taken he was the president of the South Carolina Funeral Directors Association. He was formerly engaged in this calling in a store building on the main business street of Walterboro, and he mentions the interesting fact that there was a residence in front of it at that location and others to the rear thereof. He purchased the property on Wichman Street and resided there for some time before the removal of the funeral home, but its establishment at that place was his intention when he bought the property, upon which he made considerable and expensive improvements in its beautification and to make it suitable for the purposes of his vocation; and in order to insure privacy he built on the premises a high crosswork lattice fence. Indeed, Mr. Parker's testimony tends clearly to support the allegations of the answer hereinbefore quoted with reference to the funeral home and its conduct and operation, and there is no substantial evidence to the contrary. (He said that he had never yet had a funeral from there, although some of the plaintiffs appear to have had a contrary impression.) He stated in effect that the use of a funeral home rather than the old time undertaking establishment is decidedly for the benefit of bereaved families because of the privacy that is thereby provided and the homelike atmosphere of the place, and that a "family would much rather know their loved ones were in the care of friends and not left alone." Mr. Parker also said that he regarded his profession as a sacred trust. In the course of his extended examination as to other possible locations for his funeral home in Walterboro he said in substance that the whole town might be described as a residential area because even in the business section there were residences.
We are of opinion that the testimony adduced by the plaintiffs, even if we did not consider that adduced by the defendant, is sufficient to show that the plaintiffs wholly failed to establish the allegations of their complaint that "the plaintiffs residing in said section are almost daily brought into close association with the moving and embalming of dead bodies, funerals, and the harrowing or distressing incidents of death", etc.; and that the finding of fact by the Special Master hereinbefore quoted is firmly established by the evidence, as well as the following additional excerpt from his report: "The evidence fails to satisfy me that the defendant has conducted, or may conduct, his business in such a manner as to thrust upon the vision of those nearby repugnant or repulsive scenes. On the contrary the premises are so arranged that ingress and egress for all purposes may be had with no gruesome detail of the business brought to the attention of residents or passersby. It is true that friends and relatives of those whose bodies are brought to the home, may come and go through the entrance on Wichman Street, but perhaps with no greater frequency than will be the case in the conduct of funerals in the three neighboring churches. Nor am I able to find from the testimony that there is danger of the escape of disagreeable odors. If this should be the case in the future conduct of the business, relief could certainly be afforded against a condition of this nature, the right to which would be in no manner impaired by the outcome of this case."
There was some testimony given in behalf of the plaintiffs (although not within the scope of the complaint) by some physicians to the effect that under certain circumstances the handling of dead bodies might cause the spread of disease. As one of these witnesses, to wit, Dr. James C. Brabham, said, there was some potential danger if great care was not taken. But there was not the slightest evidence of lack of care on the part of the defendant, or any failure on its part to comply with prescribed rules and regulations, or that the plaintiffs were ever subjected to such a risk. The following quotation from the Special Master's report is clearly correct: "I do not think that the proof warrants the finding that danger of the spread of contagion resulting from the conduct of the business exists in such degree as to regard it as more than a remote possibility which must be looked upon simply as one of the normal commonplace hazards of everyday existence." And it should be mentioned here that Judge Greene evidently accepted this part of the report, and because of this it is referred to in one of the "additional sustaining grounds," which for the reasons indicated we think should be overruled. In fact, it may be observed that if such danger should be held to exist with reference to a properly operated undertaking establishment, it would be true as to any location, whether in a business or residential section.
This case naturally reminds us of the progress that has been made in recent years in the undertaking business, tending to the relief and comfort of the families of deceased persons. Indeed, it has been elevated to the dignity of a profession, and many of the very disagreeable funeral customs formerly prevailing have been eliminated, and doubtless much progress will yet be made along this line. And the "funeral home" is a development of modern times looking toward dignified privacy by the creation of a homelike atmosphere as contrasted with the surroundings of everyday business. These homes are of course to be found in a great many towns and cities of the State, and sometimes, as in this case, buildings formerly used only as residences are now devoted to this purpose, frequently being improved and the surroundings beautified.
In this connection, we think the following excerpt from the testimony of Judge Peurifoy is truly significant: "In the funeral home the mortician looks after the family, keeps people out who would intrude in the sacredness of that hour and protects the family as much as possible. In the midst of life, we are in death, and it is hardly a week we do not have it before us."
Coming now to the consideration of the law governing this case, we may say that the jurisdiction of equity to enjoin a private nuisance in a proper case is, as it should be, well established. And we think that a nuisance is correctly defined in the opinion of Mr. Justice Woods in the case of State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E., 884, 889, 22 L.R.A. (N.S.), 435, 129 Am. St. Rep., 876, 17 Ann. Cas., 343, as follows: "A nuisance is anything which works hurt, inconvenience, or damage; anything which essentially interferes with the enjoyment of life or property." And nuisances may be divided into two general classes, to wit, nuisances per se and nuisances per accidens. It is conceded by all parties before us that the operation of an undertaking establishment or funeral home is not a nuisance per se, but it is of course true that an entirely lawful business may be conducted in such an improper manner as to make it a nuisance, and there are some kinds of business which in their very nature would be nuisances in some locations.
The South Carolina "nuisance" cases cited by Judge Greene in his decree, as follows, to wit: Frost v. Berkeley Phosphate Company, 42 S.C. 402, 20 S.E., 280, 26 L.R.A., 693, 46 Am. St. Rep., 736; Matheny v. Aiken, 68 S.C. 163, 47 S.E., 56; Henry v. Southern Ry., 93 S.C. 125, 75 S.E., 1018; Peden v. Furman University, 155 S.C. 1, 151 S.E., 907; and Douglas v. City Council of Greenville, 92 S.C. 374, 75 S.E., 687, 49 L.R.A. (N.S.), 958, were soundly and correctly decided, but do not throw much light on the instant case. There is, however, a more recent decision which, while not precisely in point, furnishes a useful side light. We refer to the case of Fincher v. City of Union, 186 S.C. 232, 196 S.E., 1, 4, in which the opinion was delivered by Mr. Justice Baker. This case involved a municipal ordinance prohibiting the operation of a barbecue stand located in any residential area of the city during certain hours, residential area being defined as a section of the city where two or more houses used for residential purposes are located on abutting property. The Court held that such an ordinance was unconstitutional because of its arbitrary and capricious definition of a residential area, thus unduly restricting the operation of a lawful business, which might indeed become a nuisance if not operated in a decent, respectable, quiet and peaceable manner, but was not a nuisance in itself. The Court uses this significant language: "Economic and social progress and changes reflect themselves in the interpretation of the law. These various forces are inescapably interlinked. The present case is an illustration of a situation brought about by entirely new conditions. But it is fully covered by fundamental constitutional principles that only need interpretation in the light of today's facts."
So far as our research shows, and that of counsel, no funeral home case has ever come to this Court, except that of Momeier v. John McAlister, Inc., in which there have been two appeals, but none upon the merits. The two opinions in this case are reported in 190 S.C. 529, 3 S.E.2d 606, and 193 S.C. 422, 8 S.E.2d 737, 129 A.L.R., 880. Aside from the fact that this case has not been heard by this Court on the merits, it may be observed that it involves the alleged violation of a city zoning ordinance, thus distinguishing it from the present case.
The second decision of this Court in the case is, however, of interest here, because the Court therein clearly indicated that the rule applied in Kennerty v. Etiwan Phosphate Co., 17 S.C. 411, 43 Am. Rep., 607, to the effect that before equity will enjoin a private nuisance it must first be determined by a jury trial at law that such a nuisance exists, does not conform to the modern practice which will permit the issuance of an injunction without any such determination on the law side of the Court. But such a holding does not tend to relax judicial strictness with regard to the drastic remedy of injunction, especially as applied to the operation of a business or calling which is not a nuisance per se. In considering whether a funeral home should be declared a private nuisance, we must have due regard to the reciprocal and important rights of the parties, to wit, the right of the defendant to operate on its own property a business which is not only lawful but indispensable, provided it does so in the proper manner; and also the right of the plaintiffs to be protected in the reasonable enjoyment of their property. Nor should we forget the interests of the public who are served by the defendant in the exercise of its vocation.
The record contains a good many allusions to the fact that the Town of Walterboro granted to the defendant a license for the operation of its funeral home at the place in question, and as to this we may say that while it is by no means conclusive, and certainly could not oust the Court of its jurisdiction, it is a circumstance in favor of defendant to be given due weight. But without regard to that, we are persuaded that practically the same rule should apply in reference to injunctions against a private nuisance as that indicated with reference to a public nuisance. In the case of Morison v. Rawlinson, Chief of Police, 193 S.C. 25, 7 S.E.2d 635, 640, opinion by Mr. Justice Fishburne, it is said that since the remedy of enjoining a public nuisance is so severe, "resulting often in wholly depriving an owner of the use of his property, the Court will proceed with the utmost caution."
Viewing the issues before us in the light of our own decisions, without reference to those of other jurisdictions, we are convinced that the Special Master reached the right conclusion when he said, referring to the operation by the defendant of its funeral home: "The question of whether or not the operation of such a business so located could be designated a nuisance as legally defined, would involve the existence of some element or elements other than that of location, such as unsanitary methods menacing health and comfort, depressing surroundings, objectionable odors, scenes and conduct of grief and distress forced upon the vision and sensibilities of neighboring citizens or property owners, or other similar tangible evidences of death and its grievous and unhappy attendant incidentals. It is not sufficient that there are those living nearby whose feelings and humors are unhappily affected by the mere abstract knowledge of the existence of a place where dead bodies are prepared for burial, or where funeral rites are conducted. It is not sufficient that the minds of some persons in the vicinity should be depressed by fear of the spread of disease unless there should be actual and reasonable foundation for such fear."
It is a sound and equitable principle that the discomforts arising from an alleged nuisance "must be physical, not such as depend upon taste or imagination" of the persons claiming to be adversely affected, especially when others in practically the same situation do not experience such mental "reactions".
We believe the views just expressed are supported by well-reasoned opinions from other states, although there is a good deal of highly respectable authority contra. Judge Johnson and Judge Greene both concluded that they were following the majority view as expressed in cases from other jurisdictions, and there are indeed statements in the books which would lead to this inference; yet it may be of significance to observe that the following statement of the law as contained in that usually accurate work, Corpus Juris, especially the portion of the quotation we have underscored, indicates that the majority view might perhaps be just the other way: "An undertaking establishment or a funeral parlor is not a nuisance per se, but by reason of surrounding circumstances it may become a nuisance. It may constitute a nuisance by reason of its location, as, for instance, under particular circumstances, when it is located in a residential district, notwithstanding, it has been held, it does not directly affect the health or grossly offend the physical sense; but it has been more frequently held that the mere location in a residential district is not sufficient to make such an establishment a nuisance." 46 C.J., 726. (Emphasis added.)
Cited in the footnote to the italicized portion of the foregoing excerpt are the following interesting and important cases: Dean v. Powell Undertaking Company, 55 Cal.App., 545, 203 P., 1015; Pearson Son v. Bonnie, 209 Ky., 307, 272 S.W. 375, 43 A.L.R., 1166; Westcott v. Middleton, 43 N.J. Eq., 478, 11 A., 490, affirmed without opinion, 44 N.J. Eq., 297, 18 A., 80.
After rather intensive study of the various decisions, we find it somewhat difficult to divide them into two distinct classes, in view of the many and varying differentiating facts and circumstances; some of the cases, for example, holding that the operation of a funeral home in a certain locality constituted a nuisance because inter alia there was evidence of noxious odors arising from the premises. In other cases there was a statute or ordinance relating to the matter; in some there was the alleged operation of a more or less public morgue where bodies were constantly kept for long periods of time; and in some cases there was a congested city residential area involved. Indeed, considerable space is taken up in many of the opinions pointing out such distinguishing details. And it may be worthy of note that one of the cases cited both in the order of Judge Johnson and in the decree of Judge Greene as strongly supporting their conclusions is that of Saier v. Joy, 198 Mich., 295, 164 N.W., 507, L.R.A., 1918-A, 825; but this decision was distinguished in a later Michigan case, Dutt v. Fales, 250 Mich., 579, 230 N.W., 948, on the ground that in the Saier case the plaintiff's property was only 13 1/2 feet from that of defendant and the Court thought that noxious odors might escape.
But while it is difficult to classify the numerous cases into two definite categories, it is quite true that the authorities are divided upon the specific point involved here, and there are decisions to the effect that in a case where there is no tangible invasion of the neighboring property, no odor, noise or contagion, nothing save that the funeral home reminds of death, if the area involved is exclusively residential neighboring property, a funeral home will be enjoined as a nuisance. On the other hand, other Courts have held, basing their opinion upon established principles of equity, that the invasion must be actual and physical, and that a mere sentimental distaste in the minds of nearby property owners is not sufficient.
Regardless of where the numerical weight may lie, we believe the latter cases are based upon sounder reasoning. Surely the fact that some persons may be displeased and annoyed because of the reminder of death, perhaps due to sensitive imaginations, is not enough to warrant the process of injunction to prevent the proper operation of a lawful business in a place well suited for its conduct. In fact, we shall from time to time be reminded of the inevitable and inexorable fact of death no matter where funeral homes may be located. If the funeral home were surrounded by mercantile establishments or removed beyond the ordinary haunts of men, this would not eliminate from our minds those occasional "darker musings when thoughts of the last bitter hour come like a blight over the spirit." But the exigencies of practical living, to say nothing of the precepts of religion, require us to adjust ourselves to this condition, remembering that death is one of the processes of nature, as natural indeed as birth.
We do not wish to prolong this opinion unduly by the citation of authority. Most of the cases on the subject will be found in the valuable annotations in 23 A.L.R., 745, 43 A.L.R., 1171, and 87 A.L.R., 1061. The Kentucky Court in the leading case of Pearson Son v. Bonnie, 209 Ky., 307, 272 S.W. 375, 43 A.L.R., 1166, supra, examines and discusses many of the cases in point, and holds in accordance with the views we have hereinbefore indicated that an injunction will not lie against the establishment of an undertaking business in the residential portion of a city, where the only injury is depreciation in the value of neighboring property and the injury to the feelings of its occupants because of sentimental repugnance to such business.
In the case at bar, as we have already shown, there was some testimony pro and con as to depreciation in value of the property in the vicinity of the funeral home by reason of its location, but all of this evidence consisted of mere expressions of individual opinion, not based upon any sales or attempted sales whatever. Hence it is a matter of speculation as to whether any such depreciation has resulted or would result. But even if we should assume that the preponderance of the evidence shows such depreciation, this certainly would not be sufficient in itself to warrant the injunction. This is the holding in the Pearson case, and there are other authorities to the same effect. The true rule on this subject seems to be well stated in the California case of Dean v. Powell Undertaking Company, 55 Cal.App., 545, 203 P., 1015, 1018, supra, as follows: "The trial court found that the value of the plaintiffs' property for residential purposes will be depreciated. Such findings, standing alone, and not supported by other findings showing that the defendant is maintaining, or is about to maintain, a nuisance, will not support the judgment. In many instances in populous neighborhoods the property of one person is depreciated by the near proximity of the property of another. Such burdens are ordinary incidents to residence and ownership in a city. * * *"
In the opinion of the New Jersey Court in the oft-cited case of Westcott v. Middleton, 43 N.J. Eq., 478, 11 A., 490, 492, affirmed without opinion, 44 N.J. Eq., 297, 18 A., 80, supra, there is laid down the principles which we think are controlling here, for while there were some additional factors in that case its holdings are clearly in point on the vital issue. We quote the following from the opinion:
"* * * Must the undertaker retire from the inhabited parts of our villages, towns, and cites? Is an occupation which is absolutely essential to the welfare of society to be condemned by the courts, to be classified with nuisances, and to be expelled from localities where all other innocent and innoxious trades may be carried on? In other words, is this business so detestable in itself as unreasonably to interfere with the civil rights or property rights of those who dwell within ordinary limits, and who can and do, without effort, see and hear what is being done? The inquiry is not whether it is obnoxious to this or that individual or not; but whether or not it is of such a character as to be obnoxious to mankind generally, similarly situated. There are certain obscene or offensive sights, certain poisonous or destructive gases or odors, certain disturbing sounds or noises, which affect most persons alike; can the business of an undertaker be classed with any of these? Is the business of an undertaker of this class? Before the court can condemn a trade or calling, it must appear that it cannot be carried on without working injury or hurt to another; and, as I have said, that injury or hurt must be such as would affect all reasonable persons alike similarly situated. The law does not contemplate rules for the protection of every individual wish or desire or taste. It is not within the judicial scheme to make things pleasant or agreeable for all the citizens of the state. (Emphasis added.)
* * * * *
"In this case, then, we have the broad, yet perfectly perceptible or tangible, ground or principle announced, that the injury must be physical, as distinguished from purely imaginative. It must be something that produces real discomfort or annoyance through the medium of the senses; not from delicacy of taste or a refined fancy. This is very comprehensive; indeed, I cannot conceive of a more liberal or broad statement of the law; yet I apprehend it is a true delineation of the law. * * *"
It will be borne in mind that we are not dealing with a case where a zoning ordinance has been adopted and put into effect, or with any statute relating in any wise to the location of a funeral home or undertaking establishment, although in the year 1924, the General Assembly did adopt an Act authorizing cities and villages to pass zoning ordinances, prescribing in detail the contents thereof. This Act is embodied in Sections 7390-7398, both inclusive, Code 1932. But of course we do not presume to suggest any legislative policy, nor do we attempt to prescribe a formula which will apply to all cases; on the contrary, we confine our decision to the facts and circumstances of the case at bar. For we are in substantial agreement with the quite recent Louisiana case of Moss v. Burke Trotti, 198 La., 76, 3 So.2d 281, 283, decided in 1941, which holds in effect that the law as announced by the Kentucky Court in the Pearson case, supra, is fundamentally correct; and that whether a funeral home and embalming business will be permitted in a particular district depends on the application of the "rule of reason." After referring to the conflict of interests, the Court said: "`Doubtless it would be difficult, if not impossible, to state a rule by which this conflict between the interests of the individual home owner and the community necessity of care for the dead may be wholly harmonized. The nearest approach is to say that the rule of reason should prevail; which means that each case must depend upon its own peculiar circumstances as to whether the use of certain property in a certain locality for the business of undertaking and embalming is reasonable or unreasonable.'"
The decree of the Circuit Court should be reversed, the injunction thereby granted dissolved, and the complaint dismissed with costs.
N.B. The foregoing opinion was written as and for the opinion of the Court, but a majority of the members not having concurred therein, it became a dissenting opinion in which Justice Baker joins.
I dissent from the majority opinion and concur in the opinion of Acting Associate Justice Lide. The cause has been argued before this Court twice. Following the original argument I wrote an opinion in which I expressed views and conclusions similar to those set forth in the opinion of Judge Lide. At the suggestion of the Chief Justice that opinion has been filed, but the same need not be reported. Judge Lide has in his opinion ably presented the controlling factors in the case. To what he has said I would merely add an expression of my profound conviction that this Court by its majority ruling has impinged upon a fundamental right of property, and has undertaken to do what the legislative authorities of the municipality in question have with obvious deliberation refrained from doing.
Indeed, where, as here, the evidence is undisputed that the home is operated and maintained with the utmost regard for the sensibilities of neighbors, and without any suggestion of discomfort or danger to neighbors or others by reason of odors, disease or other physical factors, it might be questioned whether the municipality could even by ordinance impose the restriction or limitation which the Court is imposing, due regard being had to the undisputed testimony as to the surroundings of the property in question in this case.
There being however no legislative mandate to control the Court, our decision must stand as a declaration of the common law. The sources of such law must be found in the customs of our people, and in their social and business standards as affected by common-law principles established in related situations. Whatever may be the situation in certain other states, the people of the small communities in South Carolina have long displayed their recognition and acceptance of the conclusions stated in Judge Lide's opinion.