241 Mass. 245 | Mass. | 1922
The plaintiff Stodder carries on a retail shoe business at No. 10 and 14 School Street, in Boston. He sublets the second floor of the building to the plaintiff Hurwitz for a tailor shop, and the third floor to the plaintiff Imbruglia for shoe repairing. The defendant’s place of business is at No. 11 School Street, the entrance being almost directly opposite the shops of the plaintiffs. The width of the street between walls is about thirty-six feet. The door of the defendant’s store is ten feet in from the sidewalk; and the intervening space is in the shape of a trapezoid, twelve feet wide at the sidewalk and six feet wide at the door. At about the middle of this doorway space the defendant located a Columbia grafonola for advertising its merchandise, and operated it by an electric motor. 'This bill in equity was brought praying for an injunction and damages.
The defendant demurred to the bill on the ground that these plaintiffs could not join in a suit of this sort. So far as the plaintiff Imbruglia is concerned, the finding of the master that he is entitled to no damages renders his joinder immaterial; as the issuing of an injunction is not affected by his presence or absence as party. All the plaintiffs complain of a single wrong committed by the defendant, which affects them alike and entitles them to the same relief in kind. As was said in Cadigan v. Brown, 120 Mass. 493, 495, where the owners of several lots of land joined in a bill to restrain a private nuisance: “ . . . the plaintiffs . . . have a common interest in the subject of the bill. They are affected in the same way by the acts of the defendants, and seek the same remedy against them. There is no danger of confusion in the trial, or of injustice to the defendants, from the joinder of the plaintiffs; but the rights of all parties can be adjusted in one decree, and a multiplicity of suits is prevented.” The additional ground of demurrer, that the plaintiffs do not
As to the merits: it is unnecessary to recite at length the findings of the master. Among them are the following: The machine complained of produced a tone slightly louder than that made by others of the same general type; and the defendant made use of the loud or “full tone” needle, and no muffling device. The machine was played substantially all day, from 10 a.m. until 5 p.m. or later, except during cold winter and stormy weather. The records consisted of every variety, — singing, speaking, and instrumental; and the music or “noise” was plainly audible in all parts of the premises occupied by the plaintiffs. The continuous and monotonous playing of piece after piece, according to his findings, “did injuriously affect the employees of the plaintiffs by a gradual wear on their nervous systems, and in some instances producing headaches, in other instances making it most difficult for the person to concentrate on his or her particular work, and in other instances getting the person in a condition such as is generally described with ‘nerves on edge.’” Further, he finds that the noise of the defendant’s grafonola “is a substantial addition to all the other noises absolutely incident to the street, that is, it tends to reduce and diminish the efficiency of the plaintiffs and their employees by reason of the fact that their minds and also the minds of customers are often diverted and is the cause of some harm and injury to the health and comfort of ordinary persons and does to some extent inter
On the facts found by the master it is clear that the decree for an injunction and damages was warranted. Stevens v. Rockport Granite Co. 216 Mass. 486. Davis v. Sawyer, 133 Mass. 289. Godin v. Niebuhr, 236 Mass. 350. And we see no necessity for modifying the terms of the decree by omitting the word “appreciably,” as urged by the plaintiffs.
Decree affirmed with costs.