Louisville Athletic Club v. Nolan

134 Ky. 220 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Hobson

— Reversing.

George Nolan brought this suit against the Louisville Athletic Club ;and James Norton. He alleged in Ms petition that Norton is the owner of a building in Louisville on the north side of Broadway between Eighth and Ninth streets; that he resides on Broadway between Seventh and Eighth streets,, about a square from the Norton building, and on the same side of the .street; that Norton has leased to the Louisville Athletic Club a hall on the third floor of his building for the purpose of its holding there a series of prize fights, the first to be held on «December 18, j 908; that the prize fights will be brutal and demoralizing, corrupting the morals and disturbing the peace of the neighborhood; that crowds will be congregated in and about the building and a large number of disorderly persons who will be noisy and vicious, emitting loud cries during the progress of the fight; that, by reason of the proximity of his property, he and Ms family will be brought into contact with a large number of disorderly persons, and disturbed by the noises from the building; that thereby the peace and happiness 'of his home will be destroyed, Ms rest at night disturbed, and the value of his property decreased. An answer was filed putting in issue the allegations of the petition, proof was taken, a temporary injunction wias granted, and this on final hearing was perpetuated. The atMetic club 'and Norton appeal.

The case has been briefed entirely upon the question whether the contests wMch the athletic club proposes to give will be prize fights under the statute. But there is another question in the case which must be determined before we reach that question. It will be observed that the injunction is aimed at an anticipated nuisance. At the time the petition was filed no prize fight had come off, no crowd had gathered, and no noise had been made. Ordinarily the chancellor will not grant an injunction to restrain an anticipated nuisance unless the proof shows that substantial injury will be done the plaintiff if the injunction is not granted. Nolan is the only witness who is introduced on the question. He testifies thalt prize fights are brutal and demoralizing; that a good many disreputable people attend them, and are very noisy sometimes. Being asked what effect the prize fights held there would have upon his family and the enjoyment of his home he says: “ A. They would have no effect — 'only the crowd going there and coming back, inclined to be, some disreputable characters raising a noise, and 1 don’t know what other trouble. I only know there is a great many disreputable people. We don’t know what trouble they might cause. They create a good deal of noise. Q. As I understand it, you live on the same side of the street as this building is on? A. Yes, sir. Q. Within a square? A. Yes, sir. Q. How many brothers in your family? A. Three. Q. And your mother lives there with you? A. Yes, sir. Q. Do you consider that you would be injured by the holding of this prize fight? A. I believe I would. Q. And you object, do you? A. Yes, sir.” This is the only evidence to show that Nolan will be injured in any way by the proposed prize fight. It is insufficient to warrant an injunction. Although the prize fight may be a public uuis'anoe, still a private citizen cannot maintain an action to enjoin it unless he suffers some special injury. It does not lappeax that the value of Nolan’s property will be in any way depreciated, or that the peace or quiet of his home will be disturbed. The persons who attend the prize fight may not pass his house, and whether or not a sufficient noise will be made to disfcurb anybody at Ms house is wholly a matter of conjecture. We held in Commonwealth v. McGovern, 116 Ky. 212; 75 S. W. 261; 25 R 411; 66 L. R. A. 280, that the state may maintain a petition in equity to enjoin a prize fight; but a private citizen cannot do >so unless he suffers some special injury therefrom.

Judgment reversed and cause remanded for a judgment dismissing the petition.