The respondent, plaintiff below, instituted this action against appellants, defendants below to obtain injunctive relief against the continued maintenance and operation of a semi-funeral home at the northwest corner of Wentworth and Smith Streets in the City of Charleston, adjoining the property of respondent on Smith Street.
Following the settlement of questions of procedure by this Court (see 190 S.C. 529, 3 S.E.2d 606; and 193 S.C. 422,8 S.E.2d 737, 129 A.L.R., 880), the cause was referred to the Master of Charleston County for the purpose of taking and reporting the testimony.
The case finally came on to be heard before Honorable E.H. Henderson, presiding Judge, who in a decree dated January 2, 1943, granted the permanent injunction prayed for in the complaint. The appeal herein is from this decree.
At the outset, attention is directed to the fact that this is not a case for the enjoining of a private nuisance as wasFraser et al. v. Fred Parker Funeral Home, 201 S.C. 88,21 S.E.2d 577, but is an action to enjoin the violation of a zoning ordinance. To entitle an adjoining property holder to the drastic remedy of injunctive relief against the violation of a zoning ordinance, conceding the validity of such ordinance, and that it is apposite, the adjoining property *Page 379 holder must show special damage not suffered by the general public. See Momeier v. John McAlister, 193 S.C. 422,8 S.E.2d 737, 129 A.L.R., 880.
Before entering upon a discussion of the facts of this case, it is not amiss to reiterate that each case of this nature must be decided on its own merits, and on its own particular facts.Fraser et al. v. Fred Parker Funeral Home, supra.
In the interest of brevity, we will treat the "funeral home" property as that of all of the appellants.
By deed dated May 14, 1937, the appellants acquired a lot of land with the improvements thereon at the northwest corner of Wentworth and Smith Streets in the City of Charleston, South Carolina, measuring on Wentworth Street approximately 212 feet, and on Smith Street approximately 195 feet. The large residence situate thereon, which is well back from both of said streets, is occupied by one of the appellants, James A. McAlister, as a home for himself and his family, and as needed, also for a semi-funeral home in connection with the undertaking business of another of the appellants, John McAlister, Inc., conducted in the main at 169 Meeting Street, a crowded business district, at which last-named location bodies are prepared for burial, and in the majority of such instances then transferred to the Wentworth Street property there to await funeral services and interment. The residence and out buildings are shaded by a substantial grove of trees and shrubbery.
The respondent owns the adjoining lot to the north of the property of appellants, his outlet therefrom being on Smith Street. The residence situate thereon is occupied by the respondent and his family, and is of typical Charleston architectural design, being three stories in height, and the porches thereto, one for each story, being to the side of the home adjacent to the McAlister property. The north wall of the main building of the McAlister residence and funeral home is approximately forty feet from the home of respondent, and on the dividing line between the properties there *Page 380 is a brick wall approximately six feet in height, which obscures all view of the McAlister premises from the ground floor porch of the respondent's home.
Vehicles enter the McAlister property through an entrance on Smith Street and follow a circular driveway behind and to the north of the main building, turning towards the south on the west side of the premises on a driveway which leads into Wentworth Street. These vehicles can be seen from respondent's residence for only a short distance after entering the McAlister property, and when the vehicles pass the servants' quarters beside the brick wall above referred, to, they cannot be further seen by anyone on the upper stories of the respondent's residence. Remains of deceased persons are handled in and out of a doorway of the funeral home where it is impossible for respondent and the members of his family to see this operation from their home.
The properties involved are not located in a strictly residential section of the City. On the northeast corner of Smith and Wentworth Streets there is situate the American Red Cross Headquarters. Immediately to the north is an apartment house which is directly across Smith Street from respondent's residence, and the next lot going north has an apartment house thereon. On the southeast corner of Wentworth and Smith Streets, there is located the office building of Atlantic Coast Life Insurance Company, and on the southwest corner of said streets there is an apartment building. On Wentworth Street within the same block as is the appellants' property, there is a grocery store, an apartment house and an office. On the south side of Wentworth, opposite the same block, is a grocery store and a physician's office. On first block east of appellants' property, on the South side of Wentworth Street in addition to the office building at the southeast corner of Smith and Wentworth Streets hereinbefore referred to, there is an old stable, a drugstore, a Negro residence, a duplex apartment house and an apartment house and beauty shop. *Page 381
The City of Charleston in adopting a zoning ordinance recognized that this section of the City was not strictly residential.
We think that the foregoing brief description and locale of the respective properties of respondent and appellants is sufficient for the purposes of this opinion.
Shortly after the acquisition of the property at the corner of Wentworth and Smith Streets by the appellants, in addition to James A. McAlister and his family occupying it for a home, the appellants commenced to use it as a semi-funeral home, that is, being engaged in the business or profession of undertakers and embalmers (morticians), after bodies are prepared for burial at their establishment on Meeting Street, the bodies are, in a majority of such occasions, transferred to the Wentworth Street premises, where they remain until the time fixed for the last sad rites; and funeral services are conducted at the Wentworth Street property. (We think it is a safe assumption that it was and is the intention of appellants to convert this property to the use of a complete funeral home.)
Respondent's complaint, after alleging the ownership by appellants of the premises at the northwest corner of Wentworth and Smith Streets, consisting of a dwelling house, out-buildings, and garden and lawn, which were erected for and have always been used as a private residence, further alleged that said premises are situated within a "B" Residence District, as defined in the Zoning Ordinance of the City of Charleston, and that the use of the property for the general purposes of a funeral home, to which use the property was then being put with such frequency as to constitute a course of business, was forbidden by the said Zoning Ordinance; that such use of the property is and will be injurious to the respondent and to his property adjoining in that the conduct of such a business next door to respondent's home will interfere with the enjoyment by the respondent of his home, will be injurious to his health, and that of his family, and *Page 382 will impair the value of his property, which is valuable and saleable primarily as a residence; that respondent will suffer special and irreparable damage if appellants are permitted to use their property adjoining that of respondent for and as a funeral home; that the city officials of Charleston had in effect refused to take any action thereabout, notwithstanding its Zoning Ordinance.
The answer of appellants admitted the ownership of the property, and that on occasions mortal remains of persons have been taken to the said premises pending their interment, and that funerals have been conducted over the mortal remains of some of them, and that some of them have been taken from the said premises to churches for funeral services. Further answering, they denied that it was unlawful to maintain a "funeral home" at the premises if properly conducted, and denied that respondent had suffered or will suffer any damages special or otherwise by reason of their alleged use of the property. There is also a denial that the Zoning Ordinance forbids the use of the property for the purpose of a funeral home, but alleges that if it does, then such Ordinance is to that extent arbitrary and unreasonable, and in violation of named articles and sections of the Constitution of South Carolina; and of the Fourteenth Amendment of the Constitution of the United States.
The foregoing is a brief summary of the contents of the complaint and answer, but sufficient for an understanding of the issues herein to be decided.
Conceding the validity and appositeness of the Zoning Ordinance, the gravamen of the action is that special damage is shown by: (1) The proximity of a funeral home to respondent's place of residence injuriously affects the value and salability thereof; and (2) the depressing effect of residing in such close proximity to a funeral home.
It is to be observed that there is no charge in the complaint that there is anything about the manner in which the appellants' business is conducted that causes injury, or that *Page 383 the conduct of the business involves any public risk, or risk to the respondent, of contagion from infectious diseases, or that the comfort and enjoyment of his home are impaired or disturbed by noxious odors, unnecessary exposures, or any other character of physical conditions that are repulsive to the senses. The complaint is definitely restricted to the physical discomforts that result from the mental reactions of being subjected to close association with the moving of dead bodies and funerals, and the distressing incidents of death. The alleged physical discomforts, that is, the disturbance of the peace and comfort of respondent's home, and the depreciation in value of his property have relation to the normal conduct of the appellant's business without any suggestion of criticism either of the business, or of the proprieties enveloped in its operation.
There are, in addition to respondent, two owners of property immediately adjoining the property of appellants, who reside thereat. One of these, a Mrs. Ratcliffe (154 Wentworth Street), who has a perfect view of appellants' premises in that eight windows to her home and her porch affords a view, and she can observe and has observed the activities going on at the premises of the funeral home, has no objection to such activities, is in nowise depressed or made nervous thereby, and does not consider that the maintenance of the funeral home there has impaired the value of her property. The other adjoining property owner, a Mr. McGee (80 Rutledge Avenue), whose backyard abuts and adjoins the property of appellants, is depressed and believes that his property has been impaired in value by the maintenance of the funeral home. The only other close resident to testify in the case, other than the respondent and the members of his family, was a Mrs. Jenkins, residing at 48-b Smith Street, opposite the premises of the respondent and the appellants who testified that the activities at the funeral home and premises would not affect one's health; nor make one depressed or nervous; nor make social life unpleasant. *Page 384
There were other "neighborhood" witnesses, some for respondents, some for appellants. Miss Martin, a school teacher, residing at 156 Wentworth Street, stated that in her opinion that the value of respondent's property had been impaired by reason of the establishment of the funeral home by appellants; that such activities were depressing, and that the ordinary and average person would not buy property in close proximity thereto; that she would not purchase property adjoining appellants. A Mrs. Gibbon, who owns property in the immediate vicinity, but who resides on Rutledge Avenue, about one and one-half blocks from the property under discussion, said she would not buy next to the appellants because the activities there are a constant reminder of death. It was her opinion that the salability of nearby property would be diminished. Dr. A.P. Aimar, a druggist, 76 years of age, owner of and residing on a lot at the southeast corner of Wentworth and Rutledge Streets, less than a block from appellants' property, does not consider that the value of his property has been impaired by the use to which appellants are making of their property, and that the activities there do not depress or make nervous either him or the members of his family. J.C. McCue, residing at the northeast corner of Smith and Montague Streets, which is on the corner opposite the property of Mrs. Gibbon, a witness hereinbefore referred to, testified that activities carried on by the appellants had in no way affected him and his family, nor did he consider that the value of his property had been impaired. Joseph C. Thomas, 51 years of age, born and still living at 142 Wentworth Street, which is next door to the Red Cross building going east on Wentworth Street, testified that activities at the McAlister premises have not caused him or his family to be depressed or nervous, and have not decreased the value of his property. Dr. Josiah E. Smith, a practicing physician, owns the property at 48-b Smith Street (diagonally across from the premises of appellants), which is an apartment house. His tenants have never objected *Page 385 to the activities on the property of appellants, considers his property a good investment, and would have no objection to living next door to where the activities under discussion are conducted. Maier Triest testified that he is engaged in the business of real estate and insurance and lives on the corner of Rutledge Avenue and Wentworth Street; that this is a little more than one-half block, and the width of Rutledge Avenue and the width of Wentworth Street, from the western boundary line of the property of appellants; that he and his family have no objection to the activities conducted on the premises of appellants, and that he does not consider that the value of his property has been affected thereby.
There is a mass of opinion evidence by real estate brokers, both in and out of the City of Charleston; by medical doctors and by ministers of the gospel; the real estate brokers largely confining their testimony to the issue if the value of respondent's property had been impaired; the physicians' testimony, and that of the clergy being directed more to the physical and mental issue herein, that is, to issue No. 2. There were also a few miscellaneous witnesses.
We do not deem it necessary to detail the testimony of these witnesses. Suffice it to say that the testimony of respondent's witnesses was based almost wholly upon the theory that a goodly number of people shared their personal views, and would object to residing in close proximity to a funeral home, which as expressed by at least some of them, would be a constant reminder of death. Only one of the real estate brokers testifying for respondent had never known of such objection being made by a prospective purchaser, and he attributed his failure to make a sale of property to this one individual to the fact that a funeral home was in close proximity to the property sought to be sold. Of course, the prospective purchaser may have had other reasons unvoiced. *Page 386
While definite and positive views and opinions were expressed, some that the "funeral home" of appellants had impaired the salability of respondent's property, and would cause the average person residing in such close proximity to be sad, nervous and depressed, yet other witnesses of the same professions, just as numerous, and equally qualified to express opinions, testified that the salability of respondent's property had not been affected, and that there was no basic reason for the presence of the funeral home to injuriously affect the respondent and his family in the enjoyment of their home. Of course, the testimony of the various witnesses, pro and con, was dependent upon their divers mental pictures and conceptions. The testimony on behalf of appellants at least balanced the testimony offered in behalf of the respondent.
Thus far, we have not mentioned that the respondent and members of his family testified tending to sustain the allegations of respondent's complaint, and that the appellant, James A. McAlister, although called as a witness by respondent, testified in the main in accordance with the allegations of the answer. It should also be mentioned that so far as the record discloses, the respondent is not desirous of disposing of his home.
The witnesses for respondent, in reply to the direct question if they were average and normal people, replied in the affirmative, but it avails nothing to characterize the respondent and his witnesses as "normal" and "average" people. Presumably the witnesses who testified for the appellants are normal and average people, too, but it adds nothing to the disposition of the problem before us to so describe them.
Without disparagement to the respondent, or any of his witnesses, we cannot accept the mental state of respondent and his asserted fear as to future impairment of health, and of depression as representing a normal consequence of the activities of the adjoining "funeral home." This is not to *Page 387 say that the respondent and the members of his family have not truthfully expressed their mental reactions.
The effect of much of what is said by respondent and on his behalf, and the principal complaint deducible from the whole record and supported by adequate factual testimony, is that the objection of the respondent to the activities on the property of appellants rests mainly upon the relation of their business to the subject of death. Properly interpreted, the repeated references to the operation, of hearses, the attendance of bereaved people at the home, the transportation of bodies to and from the home, and the like, relate in the respondent's mind not so much to the physical operations that are conducted on the premises as to the fact that they have, as stated, relation to death.
It is this factor that seems to create the morbid or depressed states of mind described in the testimony. It is the contemplation of death which in the minds of the respondent and the members of his family affects their enjoyment of their home. Does this furnish a ground for judicial action to restrict the incidents of property ownership by the appellants?
Whether we adopt the view that relief could not be obtained by way of injunction without proof of the essential facts by clear and convincing testimony, or that merely a preponderance of testimony is sufficient, we cannot conclude from this record that the respondent has made out a case within the scope of his complaint, unless we define the case he attempts to make as a suit for injunction on the sole ground that the respondent himself, and not people generally living in the same vicinity, suffered such mental reactions from the contemplation of death and the handling of dead bodies as is involved in appellants' business as to interfere with his enjoyment of his home and to give rise to impairment of health due to worry and depression from that cause alone.
Directing ourselves to the specific issue last stated, we are unable to accept the view that because certain individuals *Page 388 living in the vicinity of a funeral home suffer adverse mental reactions, while other people in the same vicinity suffer no such reactions, the former may have the business eliminated from the neighborhood without any showing of conditions that are unsanitary or in any respect repulsive or otherwise objectionable.
Every theological and spiritual concept denies to death the pervading atmosphere of morbidity and depression which the respondent asserts as the principal ground of his complaint in this case. Death is a state that is as normal as life itself. Whether a particular individual views it with fear and dread, or with the exultation that comes from the inborn conviction of a higher life that follows, or with an utter indifference founded on a rejection of the hope and belief of future life upon which Christianity rests, death is a normal and inevitable incident for which all the living must make preparation. To families of the ones who die there is inevitably the mourning that comes from the loss of the presence and companionship of loved ones; but the event of death itself creates social problems that are largely unrelated to the feelings and desires of the family, and that are represented through human history in the development of what is now the science of the mortician.
It is anomalous, to say the least, to cast the stigma of illegality on a business which touches so deeply the feelings of those who are bereaved, and that at the same time is so indispensable both to such persons and to the public at large, and that deals with a phase of life which an inscrutable Providence so far has denied us the capacity to understand while at the same time planting in our hearts a conviction that it is a step in the evolution of man to a higher (or lower) state.
The authorities of the general subject we are considering are numerous, and the results are divergent. Although the text writers classify these cases into a so-called majority group, in which injunctions against the maintenance of *Page 389 funeral homes were granted, and into a so-called minority group, in which injunctions were refused, this classification vanishes when the cases are carefully analyzed. In the main they will be found collated in annotations in 23 A.L.R., 745, 43 A.L.R., 1171, and 87 A.L.R., 1061, each annotation being preceded by one or more reported cases on the subject.
In many of the cases in which injunctions were granted there were present factors which do not come into play in the present controversy. In some of them noxious odors and gases were emitted from the premises; in others the operation of a more or less public morgue was a factor in the situation; and in a considerable proportion of the cases which are pertinent here the testimony showed beyond question that the area in which the funeral home was to be conducted was a strictly residential area in the literal sense that large sums had been expended in the creation or maintenance of a residential subdivision, or that the area had acquired the characterization from its location in a section divorced from the commercial activities of the municipality, or that although there has been some slight intrusion of business the other essential factors of an exclusive residential area above indicated are still present.
And similarly in a number of the cases in which injunctions were refused there were factual considerations differentiating the cases from the facts of the present case.
A typical illustration of the need of a close analysis of the facts of each case for the purpose of determining the intent of the Courts of the respective jurisdictions is that of Dillon v. Moran et al., 237 Mich., 130, 211 N.W., 67. Because of the holdings of the Michigan Supreme Court in several cases on the subject (cited in the annotations above referred to) the Michigan Supreme Court is generally classed as holding the so-called majority view that the maintenance of a funeral home in a residential district will be enjoined. In the case cited an injunction was granted on a finding of *Page 390 fact stated as follows: * * * The testimony and the photographs introduced in evidence are convincing that the district is a strictly residential district. There are many substantial homes, some single dwellings, some duplexes, and some apartments; a few roomers are taken, and some of the places are rented. although in the main the homes are occupied by their owners. The particular district here involved has retained its residential character, although outside of it in some direction business has crept in and become the predominant factor. * * *".
But in the concurring opinion of one of the Justices, which by reason of the concurrence of other Justices of the Court became the majority concurring opinion, the following express limitation is stated:
"Funeral homes, during recent years, in great numbers have been removed from the business sections of cities, and have become established in purely residential districts.
"An undertaking business is not a nuisance per se, and where one has been allowed to establish itself and carry on business as such in a residential part of a town, no one may disturb its continuance. It must not be understood that any one, at any time, can complain of a funeral home in a residential section and compel its removal.
"With this addition I concur in the opinion of Mr. Justice Fellows in all respects"
And the Supreme Court of Kansas, too, which is classed in the so-called majority group, took pains in one of its more recent cases on the subject to emphasize by quotation from an earlier case that: "`There is no fixed or arbitrary rule, however, governing cases of this kind. Each case must be determined by the facts and circumstances developed therein.'"Hatcher v. Hitchcock, 129 Kan., 88, 281, P., 869, 872.
In the case last cited, in which an injunction was granted. material facts were disclosed by the testimony that are not present in this case. One of the plaintiff's was the owner of a home next door to the funeral home. Adjoining the home *Page 391 of this plaintiff, a distance of only seventy feet from the funeral home, was a hospital involving an investment of about a hundred thousand dollars. The establishment sought to be enjoined included a morgue. The report of the case discloses no contradictory testimony, such as appears in the present case, as to the effect of the presence of the funeral home on the persons living in the vicinity and on the value of the property in the vicinity.
Probably the most widely quoted case on this subject is that of Westcott v. Middleton, 43 N.J. (Eq.), 478, 11 A., 490, 492, affirmed without opinion, 44 N.J. (Eq.), 297, 18 A., 180. While the facts of that case are such as to render it readily distinuate, yet when the City authorities fail, and in effect refuse to take any action thereabout upon its being brought to their attention that the ordinance is being violated, before an adjoining property holder may successfully maintain an action for injunctive relief, such property holder must show by the preponderance of testimony that he has suffered and will continue to suffer special damage not suffered by the general public. Such damage must be real and not merely speculative and imaginary.
Under the facts of this case, and applying the rule of reason, we must conclude that the respondent has failed to meet the burden of showing that he has suffered any form of special damage normally to be expected by reason of the activities of appellants in the use of their property.
It is therefore our opinion that the decree appealed from should be reversed; and the permanent injunction thereby granted, dissolved.
NOTE: The foregoing was written as and for the opinion of the Court. None of the other Justices having concurred therein, it becomes a dissenting opinion. *Page 392