*1 88 for Re- Counsel Sumter, Clifton, Wayne
Mr. Law spondent, 22, 1942.
July
Per Curiam: of the and consideration record a careful study
After issues made by case, exceptions, 'this light in its decree that the Circuit Court opinion we are of decree as the We adopt decided the case. correctly it this Court. be reported.' judgment Ret affirmed. Judgment Bonham, Mr. Messrs. Ci-iiee Associate Justice Jus- G. Stukes, Judge Circuit
tices Fishburne Acting concur. Dewey Oxner, Justice, Associate PARKER FUNERAL HOME FRASER AL. v. FRED ET (21 (2d), 577) E.S. *15 Warren, Mr. George Mr. Heber Hampton, Padgett, R. Walterboro, Crews, and Mr. W. Mr. John D. Rob-W. inson, Jr., Nettles, and Mr. Jos. Jr., Columbia, all L. counsel for appellant, *16 Jr.,
Mr. Mr. I. A. Randolph Mui'daugh, Hampton, Walterboro, Anderson, Mr. Smoak Prince of Samuel L. Winter, Columbia, D. counsel for re- McK. Mr. spondent,
Counsel for appellant, reply,
Mr. : Chiee Bonham Justice
I am unable in to concur of Mr. opinion Acting Associate . For reason stated in the de- Lide. Justice Greene, cree of I in Judge concur it. Mr. and Judge Circuit G. Associate Stukes Justice Acting
Dewey Oxner, concur. Justice, Associate
Mr. : Associate Stukes (concurring) Justice control, In a the absence of ordinance or other zoning as here, think I each such case decided its upon should own R, facts A. which is the particular (87 1061), R. final conclusion announced in the of Mr. opinion Acting Lide, am Associate and I in accord it. How- with Justice ever, do in war- not evidence this case agree I that the rants the reversal in the contained Circuit findings I its affirm- decree, so the Chief join favoring Justice ance.
108 Acting Dewey Oxner, G. Associate Judge
Circuit : (concurring) Justice of the Circuit Court judgment am I of opinion have conclusion In this I reaching should be affirmed. as a involved of considered the Wichman Street portion by fact found was the conclusion of residential area. Such a Master, made careful inspection who probably Special and had of seeing and who the benefit of Wichman Street fact was confirmed This of finding the witnesses. observing Judge. Circuit by are diver widely question the decisions upon
While inis the Circuit Judge I the view adopted think gent, sound in and is authority weight accord with the great with the'modern trend is also accord His view principle. where the precise in those jurisdictions of the decisions al. first Jordan et v. impression. arose as one question et 226, P., 1096; al., Okl., et 132 269 Williams Nesmith 547, So., 302; Miss., et 184 186 Al al., al. Montgomery v. 388, N. al., 185 et 97 Ind. App., et al. v. bright Crim E.. Misc., 483, al., N. 304; 258 Arthur et al. et Virkler v. S., 886. Y. recent case from the think the following language
I al., Mich., 15, 298 et v. et Kundinger Bagnasco al. 1941, and cor W., 386, clearly 387, June, N. decided re “It law: sets forth the principles rectly applicable that a the conclusion to reach no quires expert opinion death, has establishment, constant reminder as a funeral Funerals, hearses,' most people. influence upon depressing coffins, the of dead bodies on the keeping premises, conducive to and of bereaved are comings goings persons, sorrow, of the com home depression, deprive is not which owners are entitled. fort its It repose *18 from disease or to show necessary danger unpleasantness a the of such business in of odors from maintenance arising 483, Arthur Virkler, v. 144 Misc. 258 order to it. enjoin 547, 886; Miss. Montgomery, Y. N. Williams v. S. Emotions, constant 302. caused the by contempla- 186 So. death, tion of as well as the realization that bodies of the often, deceased are if not persons on such continuously, as in those here more premises are acute in their question, cases, in than painfulness, many suffering perceived throug'h senses; the and mental are pain suffering elements of in the damage, law. eyes the Where there can be said to a district, be residential as long-established case, such in this the intrusion of the funeral business therein will be re- as a strained by injunction.” nuisance
In a a conclusion in of this reaching case kind it is nec- to in essary bear mind the facts involved. particular Cases arise in a may residential area where those are complaining so far removed could not they be said to reasonably affected, or where have allowed a funeral they to be home permanently established and remain an for appreciable of time length are not unchallenged. We now with dealing cases of the kind the just mentioned. Under facts found by the Master Special and Circuit I Judge, injunction think sought should be granted. Acting Lide, Judge Circuit D.U Associate Justice :
(dissenting) This action was to a brought enjoin operation funeral home at a certain in Walterboro. The place respond- ents below, were plaintiffs Court and will be hereinafter referred as such; and the which appellant, below, was the defendant in the will likewise Court be here- inafter referred to as such. The defendant is corporation, property business of which are owned and controlled D. Fred Parker and his wife, and hence Mr. Parker may sometimes be referred to as he were though the defendant. The case comes to this Court defendant’s from upon appeal decree Greene Judge granting permanent injunc- tion.
The inter alia complaint alleges that the are plaintiffs owners or property have interests on Wich- property Street, man Walterboro, the Town of “on or about December, 1939”, day defendant re-
110 to conduct the Town of Walterboro license from ceived Street, Fred and the thereupon a funeral home on Wichman its from location removed Parker Funeral Home was in the residence and area of the town operated the business and that it “has Street, at Parker 156 Wichman of Mr. location.” at the said continually operated been and is being essentially is in an location is further the alleged It that the “That because of and: and residential section exclusively in this located residential Funeral Home is fact that said section, are almost daily in said section residing the plaintiffs embalm- and with the moving association into close brought funerals, bodies, of dead or distress- ing harrowing and.the death, incidents of suffer mental ing them to causing great discomforts, their health anguish, physical thereby affecting and their and the and comfort of homes disturbing peace value, their to to decrease in dis- causing tending property chil- domestic to .and mortify growing rupt help, depress dren, and other causing damage.” then the acts consti-
It was that of the defendant alleged tute a for damages nuisance continuing causing irreparable law, at and remedy which the no plaintiffs adequate have is for relief. injunction prayer general a tem- this which was duly verified, Upon complaint, was Honorable injunction by order porary granted J. 26, dated resident Henry Johnson, Circuit Judge, April In to 1940. due defendant demurrer time the interposed it the face showed complaint upon ground upon that the, had a license for thereof that the town council granted involved, home of the funeral the plain- that operation an at defendant tiffs have adequate remedy law; for a injunction. also moved dissolution of temporary the demurrer and re- however, overruled Johnson, Judge increased the injunction fused the motion to dissolve (but 10, order 1940. bond) May dated by elaborate, The answer is full and denying defendant’s nuisance, with creation of a it allegations charging but the license admitting granted that pursuant Walterboro, Town of the funeral home was located at Street, and Wichman it had been alleging conducted at December “in a 18, 1939, place since quiet, peace- *20 ful, manner, unostentatious and in accordance with the strictest in a sanitary and manner requirements, would that cause no normal to have person any grievance whatsoever reason of to their the Funeral proximity said Home.”
The answer also further sets up the defend- affirmatively ant’s method of home, the funeral operating and among other it things is “That the location alleged: of Fred the Parker Funeral is in Home the residence D. occupied by Fred Parker and his that the bodies family; of de- persons ceased are carried to the rear of the residence of said the Parker family of a by way side and street the to entry-way street, said side and that no or person persons who live on Wichman Street have view any whatsoever of any loading or of deceased unloading at said persons funeral that home; the rooms that for are used the bodies preparation of de- ceased are at rear persons the of said residence and are not in to said proximity the Wichman Street; the windows of the room are so preparation located that it would im- for possible from the anyone outside to have what- any view soever of work in any interior. the The front of said funeral residence, is home the front of a normal the in rooms the front portion house an being office and two living rooms. In front said and trees, residence funeral home are shrubbery flowers. That none of the work of the Fred Parker Funeral Home is conducted from the of said front residence, the except entry at persons said home calling and those therefrom.” departing
It is further that there had been alleged no ordi- zoning nances in passed Town of the Walterboro forbidding location in question defendant’s funeral but home, on contrary legal authorities vested with had power granted the defendant a to own and license the same operate at in place question, that'the location “is not exclusively in a residential section.” And is further it “That alleged: its has better- expended on license receiving
defendant said at said ments and to its property place, improvements licensed, sev- for which it was thereunto for the purposes dollars, around the eral has beautified grounds hundred home, and lias so constructed the same residence and funeral will that the and those the neighborhood living public dead, nor with the to any not association any be exposed death; and this de- incidents of or harrowing distressing have may any grievances fendant alleges plaintiffs funeral home at said with location of said connection is fancied imaginary.” place purely in the answer which need And there are other allegations here, affirma- that the defendant be mentioned not except an at remedy have ample tively alleged that plaintiffs license, defendant’s law for revocation by petition *21 of action the commencement the and that had to they prior taken invoke such a to steps remedy. 28, 1940, Court,
On was order of in- the cause by June all fact referred to Honorable cluding law, issues of' and of Searson, Master, P. after the R. as who Special taking the of testimony by offered the respective parties, volume considerable, which is filed his dated March quite report 1941, 7, in a matter of the which he found as fact all of to which the of Wichman portion allegations Street area, the a residential and: the relate is “That pleadings defendant’s funeral home was at the time the filing the in complaint, conducted the said area under modern methods, scientific and sanitary and in an unostentatious and considerate manner the to administration of appropriate dignified and And necessary the contains calling.” report involved, which, discussion of law discriminating the upon in evidence, the it was the light recommended that injunction temporary be' dissolved the relief for prayed in the refused. complaint
Upon to this filed counsel the exceptions for report Greene, the cause was heard B. plaintiffs, by Honorable G. who presiding Judge, handed down his decree dated Julv 11, 1941, its permanently defendant, enjoining agents, successors, servants and from and build- using premises in described and referred to ings as No. 156 complaint Street, Walterboro, Wichman in or of such any part prem- ises and. “as and for an buildings, undertaking establish- ment, funeral observed, or morgue.” home should be (It however, there is in no the record which testimony would sustain that a in any charge morgue ordinary of that word had sense been -or was intended to be operated Indeed, in the there question. is no such place charge does not Greene Judge sharply complaint.) disagree with facts, Master on the but Special he them interprets in the as to his views light contrasting applicable legal principles.
The order of Judge Johnson, the Master’s Special report, and the decree of Greene were all Judge with prepared care and make more or less painstaking extended reference authorities, to the most which are from gathered other states. Greene’s Judge decree accords with the view of the law but expressed by Judge Johnson, goes more into fully the discussion of the cases. The this to is appeal Court course based the defendant upon exceptions by to the decree of Judge Greene, but the abundance of evidently caution there are also order of exceptions Judge Johnson to dissolve the refusing injunction, temporary' although such an order does not determine the law of the case. Alston *22 C., Limehouse, v. 559, 60 E., S. 188. S. The plaintiffs “additional, their by attorneys also notice of certain gave sustaining grounds.” however, there is Fundamentally, but one question involved in this and that the appeal, is: Did of operation the funeral home the at by the defendant place in and in the question manner shown thfe evidence by con- a stitute private nuisance other warranting injunctive or ? relief
We are in fortunate us three able and having before com- prehensive dissertations on law to subject the the relating involved, wit, to the Master’s Special report, Judge John- And after carefully and Greene’s decree. order Judge
son’s men- authorities therein same, the the reviewing considering we been able such authorities as have tioned, and other counsel for find, which are cited the by respective of most briefs, and after analytical study in their helpful parties considered that the judgment Special is our testimony, the it and conclusion, and we just equitable Master reached the in all substan- with his well-considered report in accord are in- the In of the issues view importance tial respects. in reasons for this determina- shall detail our give we volved here think it is to say And we appropriate tion of the cause. should is a case where special weight in that our this opinion “saw wit- the Master the given fact that Special be to the stand, and from the nesses, the delivered testimony heard of and contact observation of that had the personal benefit be of value which peculiar witnesses ma)'- with and parties he and result”; furthermore, in a correct that at arriving locale, because the himself with familiarized doubtless counsel he should by that it was agreed record shows fune- surroundings location and observe the “go in question”, accompanied home and adjacent property ral on one side. attorney each review of outstanding Perhaps cursory portions is- be of subordinate testimony clarifying may help is located on the sues. The funeral home south question Street, and this street is a side of Wichman part State 64, much traveled No. highly important Highway because highway a link in a short route to the constituting home, The funeral which was South. is residence Parker, fronts on Mr. is Wichman the cor- but at Street ner of that and an street street side known as unpaved evidence, A at the Tracey glance which was map Street. admittedfy correct, will show approximately block that the where funeral home is situate and block immediately Street, residences, to the east of contain Tracey they while could scarcely considered residential in exclusively term, in usual of that view of meaning there fact *23 is a church and Negro them, situated on parsonage each of besides other homes, and there Negro is a small workshop on one of The Glover, them. M. plaintiff, Mrs. M. has home block, on the eastern bút her residence is separated from the funeral home by the on her workshop premises, a Negro fact, church and and parsonage, In Tracey Street. the itself the complaint that “is alleges workshop approx- a block from the imately away” However, funeral home. Glover, Mr. Glover, W. C. who is son M. Mrs. M.
uses the small testified that the workshop, location the funeral him, home depressed that fune- admitting, however, rals from nearby Church and other Negro churches had a like effect him. upon
The Fraser, O’H. has a plaintiff, W. residence same situated, block the funeral where home is but sepa- rated from it by the residence of C. Rivers. Mr. and M. Fraser objections Mrs. testified to their to location home, the funeral Fraser said Mr. “main itwas thing my He depreciated qualified this property”. that that was his
saying Mrs. Fraser opinion; indicated that her objection was on account of their children. partly To the west of Fraser home in the same block is .the other Church and The Negro parsonage. occupants house, Rivers’ which is from home, 20 feet the funeral about did not testified to definitely they object location and of the same. operation
North of Wichman there Street are two blocks on which certain of the own plaintiffs are interested (or resi- in) dential and this area property, may more de- literally be scribed residential, as for same exclusive- appears so, ly that the except Church is on the Episcopal western end street, on another fronting and all of this is territory from the separated funeral home by Wichman but Street; even zones where have been town, created in a streets or highways may constitute the boundaries thereof.
Across this thereof, street on the northern side almost directly home, front of the is .funeral residence *24 Smoak, testified that his residence A. who Judge I.
Probate the funeral and the home; 90 feet from was approximately his measurements Parker testified that from “defendant” and from his to Mr. Judge was 134 feet home it Smoak’s. and in detail that quite Mrs. testified positively both Smoak distaste- exceedingly the funeral home was presence that, in its was a con- them, to presence ful and annoying death; members of sorrowing reminder of perceptibly stant home; the bodies sometimes visited bereaved families home, were to the conveyed although by deceased persons that em- and it their entrance; understanding rear was the. And were therein. also they conducted balming operations like ill and servant suffered that their little girl testified Ritchie, who with his However, R.W. Captain effects. residence, in testi- an the Smoak apartment wife occupied he and Mrs. were not as that fied Ritchie just unequivocally and that funeral home, all disturbed by presence at that unusually to be an and quiet place, in fact it appeared eye home was to the very pleasing the appearance with ref- result of careful planning show the and seemed to and Ritchie shrubbery. Captain and to the trees erence grass there it the lawn looked better he recalled said that as also was a street, that “it very pleasing- on any than place sight.” that the pres- also
Judge opinion Smoak expressed market reduced materially ence of the funeral home value line by of his the same was along given Testimony property. on Smith, whose home is also the north the plaintiff H. L. Street, side of Wichman objections that his except manner, funeral in a home were stated more and qualified value, as to the matter of he in said depreciation effect home, he did a funeral that not know about but he thought mercantile establishment that location decrease any would values. was also similar from certain testimony other There Cone, Dr. witnesses for the but W. H. plaintiffs; druggist, man, and business Honorable experienced E. James each of whom resides on Judge, former Circuit Peurifoy, the north side home, Wichman near the funeral Street both testified that the of the home presence was not distaste- ful to them. Dr. Cone said that his family, two including children, were it, not adversely affected that it was his opinion there had been no decrease in the value his property. Judge is a who man of Peurifoy, long varied business Walterboro, experience stated positively the funeral did home disturb him- the comfort of not self and his and that family, he had not “seen anything *25 that would indicate a it was further nuisance.” He testified that the presence of the funeral home would not him cause to take less for his any that he property, and it thought was before, worth as much as it was but that had he not heard of There was any sale. also other like for testimony the defendant.
Without further going any into the of this testimony character, we that it be may say to sum- appears correctly marized counsel for by the defendant in their brief in which that the owners they say of six of the neighboring residence to the location the buildings objected of funeral home, while the owners of four thereof and the occupants of four more testified its that was not presence objectionable them; to and it may that added with reference to the ef- fect on children there was affirmative in behalf testimony of the defendant some of the children in the neighbor- hood with played the Parker children in the at the yard Parker residence which was the- funeral home. It will be remembered that the home was as a occupied residence Mr. and Mrs. and Parker their two children.
The “defendant” D. Fred Parker testified at considerable with length to his regard of the funeral home. operation His education, shows testimony that by and training expe- rience he was well fitted to the duties of an under- perform taker Indeed, or mortician. was it counsel the agreed by for for the plaintiffs record “that he is a purpose good undertaker.” And at the time the was taken he testimony -wasthe of the Funeral president South Carolina Directors in this formerly
Association. He was engaged calling Walterboro, main a store on the business street building there was he fact that a resi- interesting and mentions the to in front it at that location others rear dence and on thereof. He Wichman property Street purchased removal resided for some time before the of the there home, its establishment was his place- funeral but at which he when made intention he bought property, upon in its beautification improvements considerable and expensive vocation; for the of his and to make it suitable purposes he built on a premises in order insure privacy to Indeed, fence. Parker’s testi- crossworlc lattice Mr. high of the answer allegations to clearly support tends mony to funeral home with reference hereinbefore quoted is no substantial and there and its conduct operation, he had said that yet to never contrary. (He evidence there, a funeral some of the had from plaintiffs althoug-h He stated contrary had have impression.) appear funeral rather than that the use the old home effect is for the benefit decidedly time establishment undertaking that is thereby bereaved families because privacy *26 and of the and place, the homelike atmosphere provided their much rather know loved ones would “family that and Mr. Parker in the care friends alone.”. were of not left as a sacred trust. that his he profession also said regarded as to other examination In the course his extended pos- of funeral home in he said locations his Walterboro sible for town described as a whole be might in substance that the in business section there even the area because residential were residences. are adduced the
We of that the testimony by opinion, adduced even if did not consider the by we that plaintiffs, defendant, is show that wholly sufficient to the plaintiffs failed to establish the their that allegations of complaint “the in said are plaintiffs residing section daily almost into brought close,association with and the embalm- moving funerals, bodies, of dead and ing the or distress- harrowing etc.; death”, incidents of ing that the of fact by finding the Master hereinbefore is Special established quoted firmly by evidence, the well as as the additional following excerpt from his evidence “The fails to me the report: satisfy that conducted, conduct, defendant has or his may business in such a manner as to thrust the vision of upon nearby those or scenes. repugnant contrary On the the repulsive premises are so arranged that for all ingress ma)^ egress purposes be with no gruesome had detail of business the to brought the attention or of residents is passersby. It true friends home, and relatives of those bodies whose are to the brought Street, confe the on may entrance go through Wichman but with no than will perhaps greater be the case frequency in conduct the of funerals three the churches. neighboring Nor am I able to find from the dan- testimony is there the ger disagreeable odors. If this should escape be business, the case the'future conduct relief could nature, be condition of this certainly afforded against to which would in no manner right by impaired case.” outcome this
There was testimony some behalf of given the plain- tiffs not within the (although scope complaint) effect that under some to the certain circum- physicians cause stances of dead bodies handling might spread wit, witnesses, of disease. As of these to one C. .Dr. James said, Brabham, there was some if potential danger great care was not taken. But there wás not the slightest evidence of lack of care on or part failure any defendant, on its with part comply prescribed rules and regulations, or that the were plaintiffs subjected ever to such a risk. The from following quotation Master’s Special report *27 warrants, is correct: clearly “I do think that not the proof the that finding of the danger of spread contagion resulting from the conduct of the business exists in such as degree it to as more a than remote regard which must possibility be looked one as of normal upon simply the commonplace hazards of everyday existence.” And it should be mentioned
120. the of this part evidently accepted Greene Judge that here to in of the referred one this it'is and because of report, in- for reasons the which grounds,” “additional sustaining bemay In fact, be overruled. it dicated think should we with be held to if should exist danger such observed establishment, undertaking a reference to operated properly or location, whether a business it be true as any would to section. residential that has the reminds us of progress case naturally
This business, tend- undéftaking in the been made recent years deceased families of the relief and comfort of to the ing aof to dignity pro- has elevated Indeed, it been persons. cus- funeral fession, very disagreeable and of the many eliminated, doubt- and have been formerly toms prevailing this And along line. less much will made yet progress modern looking of times “funeral home” is a development of a homelike at- creation by the toward dignified privacy as with surroundings everyday contrasted mosphere a These be found in business. are course to great homes State, sometimes, and and as towns cities many case, as are formerly only this used residences buildings frequently being now devoted to this improved purpose, beautified. surroundings In connection, this we think from the following excerpt “In testimony of Judge truly is Peurifoy significant: the funeral home the mortician after the family, keeps looks out who would intrude in the sacredness that hour people as In midst much as protects family possible. life, in death, we are we not hardly is week do it have it us.” before now to the consideration of law
Coming governing case, this that the say jurisdiction we may equity is, be, in a case enjoin nuisance as it should private proper well established. And think a nuisance is correctly we defined in the of Mr. in the case of Woods opinion Justice Co., 181, Power C., State v. Water 82 63 Columbia S. S. 435, E., 889, Am. R. 884, (N. S.), Rep., A. L. St.
121 876, 17 Cas., 343, Ann. as follows: “A is nuisance anything hurt, which works inconvenience, or damage; anything which essentially interferes with the enjoyment of life or And property.” nuisances bemay divided into two general wit, classes, to nuisances se and per nuisances per accidens. It is conceded all by before us that parties operation an establishment undertaking or funeral home is not a nui- se, sance but it is per of course true that an lawful entirely business in such an may conducted improper manner as nuisance, to make it a and there are some kinds of busi- ness which in their nature would be very nuisances in some locations.
The South Carolina “nuisance” cited cases by Judge decree, Greene his follows, as to wit: Frost Berkeley v. Phosphate C., 42 Company, 402, E., 280, 20 S. S. 26 L. A.,R. 693, 736; 46 Aiken, Am. Matheny St. v. Rep., 68 S. E., 56; C., 163, 47 Henry C., S. Ry., v. Southern 93 S. E., 125, 1018; 75 Peden v. Furman S. University, 155 S. C., 1, E., 151 907; and Douglas S. Council City Green v. ville, E., C., 374, 92 687, 75 S. A. S. 49 R. (N. 958, S.), L. were and soundly decided, correctly but do not throw much on the instant light is, however, case. There a more recent which, decision while not precisely point, furnishes a useful side refer light. We case of Fincher v. City Union, E., C., 186 232, S. 1, 4, in which S. was opinion delivered Mr. Baker. This case in Justice volved a ordinance municipal prohibiting the operation a barbecue stand located in residential any area of the city hours, certain during residential area defined as a being section of the where city two or more houses for used resi dential are located purposes on abutting The property. Court held such an ordinance was unconstitutional because of its arbitrary definition capricious df area, residential thus unduly restricting business, of a lawful operation which indeed might become nuisance if not operated a decent, manner, respectable, quiet peaceable but was not a nuisance in itself. The uses this Court lan- significant reflect and social progress changes “Economic
guage: of the' various themselves in the law. These interpretation is an The case forces are interlinked. present inescapably *29 new a about brought by entirely illustration of situation fundamental consti- is covered by it fully conditions. But need in the light that only interpretation tutional principles of facts.” today’s shows, counsel, and that of no research far as our
So Court, that has come to this except case ever funeral home McAlister, in there have which Inc., v. John of Momeier The the merits. two opin but none upon been two appeals, 529, C., in 190 (2d), in this 3 reported case are S. S. ions E. 737, R., C., 422, A. 606, (2d), 193 8 129 E. L. S. S. this heard that case has not been the fact Aside from 880. merits, observed that it in may it the this on Court by ordinance, thus a zoning of city the violation alleged volves it from case. the distinguishing present however, in case of this Court the is, The second decision here, therein interest because the Court indicated clearly of Co., Kennerty rule v. Phosphate that the applied Etiwan 607, C., Am. the that to effect before 411, 43 Rep., 17 S. a it de will nuisance must first be enjoin private equity exists, trial law that such a nuisance a at by jury termined the modern which will practice not to permit does conform such injunction any an without determina the issuance of of But such a the the Court. does holding on law side tion the with to dras regard tend to relax strictness judicial not as the to applied tic of remedy injunction, especially opera a tion of business or which is a se. per nuisance calling not a funeral declared In whether home shoitld be considering nuisance, re a we have the must due to private regard wit, to right ciprocal important rights parties, of the defendant to on its own a business operate property is not lawful it does which but only indispensable, provided manner; so in the and also the right the plaintiffs proper in the to be reasonable enjoyment prop- their protected Nor forget should we the interests of erty. who public are the defendant in the served exercise its by vocation.
The record contains a allusions good many to the fact that the of Walterboro Town defendant a granted for license funeral home its at the operation place and as to this it is question, may say we by while conclusive, no means could not oust Court certainly of its it ais circumstance in defend- jurisdiction, favor of that, ant to be But due without given regard to we weight. are rule persuaded same should practically apply a injunctions reference to nuisance against as private that indicated reference In tó nuisance. public with case of Rawlinson, Morison v. Police, C., 193 S. Chief of 25, 635, 640, (2d), S. Fish- E. opinion Mr. Justice burne, is it said that since the *30 remedy of public enjoining nuisance is severe, so often in wholly depriving “resulting an owner of the use of his will the Court pro- property, ceed with the caution.” utmost
Viewing the issues before inus the of our own light decisions, without reference to those of other jurisdictions, arewe convinced that the Master reached the Special right said, conclusion when he referring to the the operation by defendant of its funeral “The whether home: of question or the of such a not so could operation business located be a as designated defined, nuisance would involve the legally existence of some or element elements other than of lo- such cation, as methods and com- unsanitary menacing health fort, odors, scenes surroundings, objectionable depressing and conduct of and grief distress forced vision the upon and of owners, sensibilities citizens or neighboring property or other similar evidences of tangible death and its grievous and attendant incidentals. It is sufficient that unhappy not there are those whose humors living nearby feelings affected the by are mere abstract unhappily knowledge of a the existence where dead bodies are place for prepared burial, or where funeral rites are conducted. is not suffi- It minds of in the cient the some persons should vicinity there disease unless by
be fear of the spread depressed fear.” actual and reasonable foundation for such should be that the discomforts It is a sound principle and equitable not such an nuisance “must be from physical, arising alleged claim- of the persons as taste or imagination” depend upon when others affected, ing, especially prac- to be adversely mental do not such same situation experience the tically “reactions”. by are just supported believe views expressed
We states, there other from although well-reasoned opinions authority contra. Judge a deal respectable is good highly were both concluded that they Greene Judge Johnson in cases from view as majority expressed following statements there are indeed other jurisdictions, inference; this be yet may it books which would lead of the following statement to observe that significance work, accurate usually Corpus law in that as contained un we have Juris, especially portion quotation derscored, view indicates that might per majority “An establishment undertaking other haps just way: but reason per se, by or a funeral is not nuisance parlor it a nuisance. It circumstances become surrounding may as, location, its for nuisance reason of may constitute circumstances, when located instance, under it is particular held, district, it has been notwithstanding, a residential it the health or offend grossly not affect directly does *31 held that sense; it has been more frequently but physical is district not the meire location in a residential swfficent cmestablishment nuisance." 46 726. make such C. J., (Em added.) phasis the italicized the fore in the footnote to of portion
Cited interesting are' the and following excerpt important going Dean Company, cases: v. Powell 55 Cal. Undertaking App., Bonnie, 307, & 545, P., ; Ky., Pearson 209 203 1015 Son v. Middleton, 375, R., 1166; W., 272 43 v. A. Westcott S. L. 478, 490, affirmed A., 43 without Eq., opinion, N. 11 J. A., 297, 44 N. 18 80. Eq., J.
125 After decisions, rather intensive of study the we various find it somewhat difficult to divide into them two distinct classes, in view of many differentiating the varying cases, facts circumstances; some of for example, that of a funeral home in a holding certain operation constituted a inter locality nuisance because alia there was evidence of noxious In odors from the arising premises. other cases there was a statute or ordinance relating to matter; in some there was the of a more alleged operation less bodies or where were public morgue constantly kept for and in time; was a long some cases there periods Indeed, area congested residential city considerable involved. is taken in out such space many opinions pointing up details. And it distinguishing of note may worthy be one the cases cited both the order Judge Johnson the decree of Greene as Judge strongly supporting their 295, conclusions is that of v. 164 Mich., Joy, Saier W., A., 1918-A, 507, 825; N. R. decision was but this R. Pales, in a case, later distinguished Michigan Dutt v.
Mich., 579, W., in the 948, 230 N. on ground case the was from plaintiff’s only Saier property feet 13/4 that of defendant that noxious odors and the Court thought might escape.
But while isit difficult to classify the numerous into cases two categories, definite is it true that quite the authorities are here, divided involved upon specific point and there are decisions to the effect that in a case where is no there tangible invasion of odor, the neighboring no noise property, or contagion, save that the funeral nothing reminds of home death, if area is involved residential exclusively neigh- boring funeral will home a nui- property, enjoined as sance. On other other hand, have Courts held, basing their opinion established upon that the principles equity, invasion must be actual and and that a mere sen- physical, timental distaste the minds of nearby owners property is not sufficient.
126 lie, we numerical weight may where the of
Regardless reasoning. latter cases based sounder upon believe the are may the fact that some be displeased Surely persons due death, the of to of reminder annoyed perhaps because to is warrant the process not imaginations, enough sensitive a lawful of injunction operation of to the proper prevent fact, for In we suited its conduct. in a well business place inevitable and time be reminded of the from shall time to matter where funeral homes death no fact of inexorable home were surrounded by If the funeral be may located. removed beyond ordinary or the mercantile establishments eliminate from our minds not men, haunts of this would when “darker musings thoughts occasional those over But .the blight spirit.” bitter come like last hour of say nothing to the living, pre- exigencies the of practical to to ourselves this con- adjust us require cepts religion, is one the death dition, processes remembering nature, as natural indeed as birth. do this unduly by
We not wish to prolong opinion cases on the will subject citation of Most of the authority. R., 745, in found in annotations A. the valuable 23 L. 1171, R., The R., A. 43 87 A. 1061. Kentucky L. L. Bonnie, & in Court case of Pearson Son 209 v. leading 375, R., 307, W., 1166, A. supi'a, exam- Ky., L. S. ines and in many discusses of the cases and holds in point, accordance with the views we have hereinbefore indicated that an will injunction not lie against establishment ah business in the residential of a undertaking city, portion where is only injury value of neigh- depreciation and the boring of its occu- injury feelings property because of sentimental to such pants repugnance business. bar, shown, In the as case at we have there already was some con as to testimony pro value of depreciation of the funeral vicinity by reason property home location, all of its but of this evidence consisted of mere individual not based sales upon any expressions opinion, Hence it is or sales whatever. a matter of attempted specu-
127 has resulted or whether such as to any depreciation lation if should assume that the even we pre- would result. But this shows such depreciation, of the evidence ponderance in warrant itself to would be sufficient not certainly case, in the Pearson This the holding is injunction. The true rule same to the effect. other authorities
there are in case well stated the California to be seems subject on this 55 Company, App., Cal. Undertaking v. Powell Dean “The trial court 1018, as follows: P., 1015, supra, 545, 203 for resi- property of the plaintiffs’ that the value found stand- will be findings, dential depreciated. Such purposes alone, and other by findings showing not supported ing maintain, is about to is or maintaining, that the defendant in- nuisance, In many judgment. will not support of one neighborhoods property per- stances populous near proximity property by son is depreciated are incidents to resi- ordinary burdens another. Such * * *” in a city. and ownership dence oft-cited In the of the New Court Jersey opinion A., 478, N. Middleton, Eq., v. 43 11 case of Westcott J. 490, 297, 18 N. 492, Eq., affirmed without opinion, J. A., 80, laid which we there is down the supra, principles here, for were while there some addi- controlling think are are factors in that case its holdings clearly point tional from issue. quote following on vital We the opin- : ion “ * * * retire inhab- undertaker from the Must the towns, Is an and cities?' villages, ited of our occupa- parts is to the society which essential welfare absolutely tion courts, be classified with nui- to be condemned to all from where other in- localities sances, and to be expelled nocent and carried innoxious trades be In other may on? words, is this business so in itself as unreasonably detestable to interfere with the civil or rights property rights those limits, dwell within can do, who and who with- ordinary effort, see and hear what The is out is being inquiry done? to not whether it is obnoxious this or individual or not; but whether or not it is of such a character as to be obnoxious to mankind situated. generally, similarly There are certain obscene or offensive certain sights, or poisonous odors, destructive or certain gases sounds or disturbing noises, which affect most alike; can persons the business of an undertaker be classed with of these? any Is the business an undertaker of this class? Before the can con- court demn a trade or it calling, must it appear cannot carried on or hurt and, without working injury another; *34 said, as I have that hurt injury or be such must as would affect all reasonable alike persons situated. The similarly law does not the contemplate rules protection every for individual wish or desire or taste. It not within is the judi- cial scheme to make things or pleasant all the agreeable for citizens the state. (Emphasis added.)
-i: -S' 'í' -I' case, then, “In broad, this we have yet perfectly per- or ceptible announced, or tangible, ground principle that injury must be physical, as distinguished from purely imag- It inative. must be that real something produces discomfort or annoyance the medium of the through senses; not from delicacy taste or a refined This is fancy. very compre- hensive; indeed, I cannot-conceive of more liberal or law; broad yet I it statement is a true apprehend * * *” delineation of the law. . It will be borne in mind that we are not with a dealing case where a zoning ordinance has been adopted put effect, into or statute any with in relating any wise to the location of a funeral or home establishment, undertaking in 1924, although year the General did Assembly adopt an Act cities and authorizing to villages pass ordi- zoning nances, in detail prescribing the contents This Act thereof. is in 7390-7398, inclusive, embodied both Sections Code 1932. But of course we not do to presume suggest any legislative nor do we to policy, attempt prescribe formula which cases; will to all on the apply we confine contrary, our decision to the facts and circumstances of the case at with the agreement we are substantial quite bar. For La.., Burke & of Moss Trotti, recent case v. Louisiana 281, 76, 283, 1941, decided which holds 3 So. (2d), iu that the law as announced by Kentucky effect Court case, correct; is and that supra, fundamentally Pearson will a funeral home and business embalming whether -on in a district the application depends permitted particular After conflict of of reason.” referring “rule “ difficult, interests, ‘Doubtless it would be the Court said: this conflict be- a rule which if not to state impossible, home owner and the of the individual tween the interests for bemay wholly of care the-dead necessity community is to rule of say nearest approach harmonized. The reason case must should which means each prevail; as to whether its own circumstances depend upon peculiar for the busi- the use of certain in a certain locality property or un- ness is reasonable undertaking embalming ” reasonable/ reversed, the The decree should be of the Circuit Court dissolved, and the complaint injunction thereby granted *35 dismissed with costs.
N. B. The written for the was as and foregoing- opinion Court, of the but a of the members not opinion majority therein, concurred it became a having dissenting opinion in which Baker joins. Justice and con (dissenting- Mr. Associate Baker Justice :
curring) I dissent from the and in the concur majority opinion of The has Associate cause opinion Acting Lide. Justice been before this twice. argued Court Following original I wrote an in which views argument opinion expressed I set forth in and conclusions similar to those the opinion At the Chief that Judge suggestion Lide. Justice filed, need same not be has been but the reported. opinion has in his ably controlling- Judge opinion presented Lide in has said I would merely factors To what he case. this an conviction my add expression profound Court its has a funda- by majority ruling impinged upon mental and has undertaken to do what right property, 'the of the legislative authorities municipality question have with obvious deliberation refrained from doing.
Indeed, here, where, as is the evidence undisputed the home is maintained with utmost regard operated for the sensibilities of and without neighbors, any sugges- others tion or or danger neighbors by discomfort odors, factors, reason of disease it or other might physical whether could even ordi- questioned the municipality by nance the restriction or limitation which the Court impose is due had to the testi- regard imposing, being undisputed as of the mony to the surroundings property question this case.
There however no mandate to control legislative being Court, must stand as a declaration of the our decision such law be found in common law. The sources of must in their social and business the customs of our people, standards as affected common-law established principles in related situations. be the in cer- may Whatever situation tain states, other of the small communities in people South Carolina have long their displayed recognition acceptance conclusions stated in Judge opinion. Lide’s
LYNCH ET AL. v. LYNCH ET AL.
(21 E. (2d), 369) S.