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was objected to by the proponents of the will, who were the executors named therein.

That all of the parties mentioned in the statute need not join in the waiver, but that any of them may waive the statutory prohibition, is held, also, in Re Hopkins (1902) 73 App. Div. 559, 77 N. Y. Supp. 178, in which the widow and executors of the deceased patient, in a contest of his will, were held to have the right to waive the professional privilege of the physician, without the heirs joining in such waiver. The decision was reversed on other grounds in (1902) 172 N. Y. 360, 65 L.R.A. 95, 92 Am. St. Rep. 746, 65 N. E. 173.

In Lippe v. Brandner (1907) 120 App. Div. 230, 105 N. Y. Supp. 225, it was held that the objection to a ruling of the court on the ground that it required all of the parties to the action to agree to the waiver was not well taken, because, properly construed, the ruling applied only to confidential communications and to such facts as would tend to disgrace the memory of the patient, and the statute did not permit waiver as to these, but provided that, when the privilege had been waived as therein specified, a physician might disclose any information as to the mental or physical condition of his patient except confidential communications and such facts as would tend to disgrace the memory of the patient.

That all of the heirs, where they are on opposing sides of the controversy, need not join in the waiver, but that any heir may waive the privilege, see also Re Oldenberg (Mich.) under III. supra. V. Disclosures tending to disgrace mem

ory of deceased. It is intimated in the reported case (SCHORN CK V. SCHORNICK, ante, 159) that the rule permitting waiver of the statutory privilege by heirs or personal representatives of the deceased patient is limited to waivers for the protection of his memory and estate, and does not extend to testimony which would have a tendency to disgrace and humiliate him.

Under the provision of the New York statute that a physician may,

upon a trial or examination, disclose any information as to the mental or physical condition of his patient which he acquired in attending such patient professionally, except confidential communications "and such facts as would tend to disgrace the memory of the patient,” when the statutory prohibition relative to competency of a physician has been expressly waived by the personal representative of the deceased patient, it was held in Mulligan v. Sinski (1913) 156 App. Div. 35, 140 N. Y. Supp. 835, affirmed without opinion in (1915) 214 N. Y. 678, 108 N. E. 1101, that in an action on a note given by a married woman, her husband, who was also her executor and the defendant in the case, could not prove by the testimony of her attending physician that at the time of the execution of the note, the wife was mentally incompetent to make the same by reason of delirium tremens, caused by excessive use of intoxicating liquors, since such testimony tended to disgrace the memory of the dead, and the personal representative of the deceased patient was, by the terms of the statute, forbidden to waive disclosure of information having this result. See also, applying the provisions of the New York statute, Lippe v. Brandner (N. Y.) under IV. supra.

That the courts have authority to protect the memory of deceased persons from objectionable disclosures, notwithstanding the privilege arising under statute in the case of information obtained by a physician from his patient while acting in a professional capacity is waived, after the patient's death, by his personal representative or heirs, is supported also by the language of the court in Re Gray (1911) 88 Neb. 835, 33 L.R.A.(N..) 319, 130 N. W. 746, Ann. Cas. 1912B, 1037.

But one of the reasons given in McCaw v. Turner (1921) 126 Miss. 260, 88 So. 705, for holding that the patient alone should be allowed to waive the statutory privilege is that, otherwise, heirs or devisees, in quarreling over his property after his death, might tarnish his reputation by testimony of his physican. See quotation from this case under I. supra.

R. E. H.

(222 Mich. 656, 193 N. W. 214.)

STANLEY KOBIELSKI and Wife Appts.,

V.
BELLE ISLE EAST SIDE CREAMERY COMPANY.

Michigan Supreme Court - April 27, 1923.

(222 Mich, 656, 193 N. W. 214.) Nuisance creamery in residential section.

A creamery turning out about 2,500 cases of milk per day, separated from a dwelling house in a residential section of a city by a narrow alley through which the loading platform is reached, the operation of which, by noise of horses, cans, and automobiles, and loud talking of men in the night, disturbs the sleep of inmates of the dwelling to the injury of their health, is a nuisance. [See note on this question beginning on page 187.]

(Moore, Clark, and Fellows, JJ., dissent.)

APPEAL by plaintiffs from a decree of the Circuit Court for Wayne County, in Chancery (Mandell, J.), dismissing a bill filed to abate a nuisance alleged to have been created by defendant in the vicinity of plaintiffs' dwelling. Reversed.

The facts are stated in the opinion of the court.

Mr. Walter M. Nelson, for appel- Moran, 81 Mich. 52, 8 L.R.A. 183, 21 lants:

Am. St. Rep. 510, 45 N. W. 381; Water Defendant has created, and con- Comrs. v. Detroit, 117 Mich. 458, 76 tinues, a nuisance which deprives N. W. 70; Merritt Twp. v. Harp, 131 plaintiffs of their property rights. Mich. 174, 91 N. W. 156; Caldwell v.

Atty. Gen. ex rel. Wyoming Twp. v. Gale, 11 Mich. 77; Hickey v. Michigan Grand Rapids (Bird ex rel. Emmons v. C. R. Co. 96 Mich. 498, 21 L.R.A. Grand Rapids) 175 Mich. 503, 50 729, 35 Am. St. Rep. 621, 55 N. W. 989; L.R.A.(N.S.) 473, 141 N. W. 890, Ann. Whittemore v. Baxter Laundry Co. 181 Cas. 1915A, 968; 20 R. C. L. 88 55, 67, Mich. 564, 52 L.R.A. (N.S.) 930, 148 pp. 441, 453; People v. Detroit White N. W. 437, Ann. Cas. 1916C, 818; Barth Lead Works, 82 Mich. 471, 9 L.R.A. v. Christian Psychopathic Hospital 722, 46 N. W. 735; Northwood v. Bar- Asso. 196 Mich. 642, 163 N. W. 62; ber Asphalt Paving Co. 126 Mich. Brink v. Shepard, 215 Mich. 390, 18 284, 54 L.R.A. 454, 85 N. W. 724; A.L.R. 116, 184 N. W. 404; Saier v. Joy, Rodenhausen v. Craven, 141 Pa. 546, 198 Mich. 295, L.R.A.1918A, 825, 164 23 Am. St. Rep. 306, 21 Atl. 774; N. W. 507; People v. Wabash R. Co. Mackenzie v. Frank M. Pauli Co. 207 197 Mich. 404, 163 N. W. 996; RobinMich. 456, 6 L.R.A. 1305, 174 N. W. son v. Baugh, 31 Mich. 290; Rucklich 161; Brady v. Detroit Steel & Spring

v. American Car & Foundry Co. 218 Co. 102 Mich. 277, 26 L.R.A. 175, 60

Mich. 561, 188 N. W. 440. N. W. 687; Skelton v. Fenton Electric

Mr. Edward D. Devine for appellee. Light & P. Co. 100 Mich. 87, 58 N. W. Bird, J., delivered the opinion of 609; Wilkinson v. Detroit Steel & the court: Spring Works, 73 Mich. 405, 41 N. W. Plaintiffs filed their bill in the 490; Edwards v. Allouez Min. Co. 38 Wayne circuit court to abate a nuiMich. 46, 31 Am. Rep. 301, 7 Mor. Min. sance alleged to have been created Rep. 577; Wilmarth v. Woodcock, 58 by the defendant in the vicinity of Mich. 482, 25 N. W. 475; McMorran v.

their dwelling. Relief was denied, Fitzgerald, 106 Mich. 649, 58 Am. St.

and the bill dismissed. Plaintiffs Rep. 511, 64 N. W. 569; Burke v. Smith, 69 Mich. 380, 8 LR.A. 184, 37 N. w appeal. 838; Kirkwood v. Finegan, 95 Mich.

Plaintiffs were the owners of a 543, 55 N. W. 457; Peek v. Roe, 110 two-family flat known as 1030 ForMich. 52, 67 N. W. 1080; Flaherty v. rest avenue east, in the city of Detroit. They occupied one of the flats house. The milk cans are thrown and rented the other one. To the against each other, and the clinking west of plaintiffs' lot is a public al- .. of bottles is heard when the men are ley 25 feet in width, and west of the loading up or returning the bottles. public alley are the lots occupied In addition to this activity, the men by defendant as a creamery plant. are talking to each other in a loud When plaintiffs purchased their voice in order to be heard. Some property there, there was one resi- of them swear at their restless dence immediately west of the alley; horses. Automobiles are started but those premises were purchased and stopped, and some of them are by defendant and the house moved left running during the process of therefrom. Now defendant's prem- loading, and the smoke and bad odor ises bound the alley on the west, and work their way into plaintiffs' house plaintiffs' premises are on the east; in the warm weather, when the wintheir house being situate within 2

dows are up. feet of the alley. About a year aft- The plaintiffs allege that this iner plaintiffs purchased their prem- tense activity keeps them awake at ises, defendant bought some lots on night; that they are frequently that block and established its cream- awakened by this medley of noises, ery. Since that time defendant's and are afterwards unable to sleep plant has gradually expanded and again by reason of them; that the absorbed other lots.

deprivation of sleep has had an unDefendant has a capital of $750,- favorable effect on their health and 000 and does a large business. It produced nervous disorders to such has seventy-five routes over which it an extent that plaintiff lost his posidelivers milk. It delivers milk to tion by reason of it. Plaintiffs furtwenty independent dealers for their ther complain that by reason of the routes. It employs a large number noise they are unable to rent the of men, and operates between nine- other flat in their house; that their ty and one hundred vehicles, some tenants would remain only for a of which are automobiles and some short time, because they could not are wagons. It uses in its business sleep. This claim was verified by a large number of milk cans, bottles, several ex-tenants appearing as witand cases. It turns out about 2,500 nesses and testifying to the fact. cases of milk every morning. It Several other witnesses, some of maintains in the plant a conveyor, them neighbors, testified to the which conveys the milk from the boisterous manner in which the plant to the loading platform.

To

work of the plant is carried on. the south of the plant and plain- Other witnesses appeared for detiffs' premises, it maintains the fendant and gave testimony modifybarns for its horses.

ing to some extent that given for The testimony shows that the ac- plaintiff. At the conclusion of the tive work with trucks and wagons proof the chancellor announced the commences about 12:30 at night and following conclusion: "The court: increases in activity up to 2:30 or I will find as a fact, and as a matter 3 o'clock A. M., when the maximum of record, that the conditions as is reached, and then continues on shown by the evidence to have exuntil between 7 and 8 in the morn- isted do constitute a nuisance, and I ing. Heavily loaded auto trucks do think this should be so changed come in over the paved alley and un- and modified by a decree as to abate load, and then reload with empty in a degree the nuisance that now cans. Horses and wagons to carry exists." the milk over seventy-five routes are The chancellor concluded, howgotten ready about 3 o'clock in the ever, to give defendant an oppormorning, and they load up their tunity to better conditions, and sugmilk and drive out over this paved gested that a shed be built over the alley within 2 feet of plaintiffs' paved alleyway between plaintiffs'

a

(222 Mich. 656, 193 N. W. 214.) house and the creamery. The case N. J. Eq. 57, 138 Am. St. Rep. 510, was adjourned and this suggestion 71 Atl. 700, it is said: “The next was acted upon. A shed was built, question is whether noise alone may and further proof was then taken as constitute such a nuisance as to subto its efficiency. At the conclusion ject the one creating the same to of the adjourned hearing the chan- restraint in equity. That such is cellor denied the relief prayed for the case I am convinced from the and dismissed plaintiffs' bill.

authorities, not only in our state, The question presented is whether but in many other jurisdictions. Of these disagreeable noises in the course, the character and volume of nighttime, in such close proximity the noise, and the time and duration to plaintiffs' dwelling, constitute à of its occurrence, and the place nuisance which should be abated by where it occurs, and the surroundinjunction. In considering the ques- ings thereof, are the important and tion whether noises furnish determinative features. Davidson ground for injunctive relief, it is v. Isham, 9 N. J. Eq. 189; Wolcott observed in R. C. L.: "The authori- v. Melick, 11 N. J. Eq. 207, 66 Am. ties are numerous which hold that Dec. 790; Ross v. Butler, 19 N. J. noise alone, or noise accompanied by Eq. 294, at p. 302, 97 Am. Dec. 654; vibration, if it be of such character Cleveland v. Citizens Gaslight Co. as to be productive of actual physi- 20 N. J. Eq. 201, at p. 205; Demarest cal discomfort and annoyance to a v. Hardham, 34 N. J. Eq. 470; Croperson of ordinary sensibility, may nin v. Bloemecke, 58 N. J. Eq. 313, create a nuisance, and be the subject 43 Atl. 605; Gilbough v. West Side of an action at law, or an injunction Amusement Co. 64 N. J. Eq. 31, 53 from a court of equity, though such Atl. 289; Laird v. Atlantic Coast noise and vibration may result from Sanitary Co. 73 N. J. Eq. 49, 67 Atl. the carrying on of a trade or busi- 387; First M. E. Church v. Cape ness in a town or city. To have this May Grain & Coal Co. 73 N. J. Eq. effect the noise must be unreason- 257, 67 Atl. 613; Powell v. Bentley & able in degree; and reasonableness G. Furniture Co. 12 L.R.A. 53 (with in this respect is a question of fact, numerous cases in the notes); Hill v. depending on the character of the McBurney Oil & Fertilizer Co. 112 business, the manner in which it is Ga. 788, 52 L.R.A. 398, 38 S. E. 42; conducted, its location and relation Froelicher v. Oswald Ironworks, 64 to other property, and the other L.R.A. 228 and note (111 La. 705, facts and circumstances of the case. 35 So. 821); Herring v. Wilton, 106 The number of people concerned by Va. 171, 7 L.R.A.(N.S.) 349, 117 the noise, and the magnitude of the Am. St. Rep. 997, 55 S. E. 546, 10 industry complained of, are both Ann. Cas. 66; 2 Wood, Nuisances, 3d elements entitled to consideration in ed. § 611.” reaching a conclusion as to the fact. In Spelling on Injunctions, $ 431, And, again, the time at which noises it is said: “Noises which tend to are made is an element to be con- disturb rest and quiet in the neighsidered in determining whether a borhood may be restrained. noise constitutes an actionable nui- To warrant an injunction against a sance. A noise incident to the op- noisé as a nuisance, it must be eration of machinery during the day shown that the noise is such as to may not be a nuisance, while the produce actual physical discomfort same noise during the usual sleep- to a person of ordinary sensibilities, ing hours of the night would con- and is unreasonably and unnecessastitute a nuisance. And noises made rily made.” on Sunday may constitute a nui- In the case of Herring v. Wilton, sance, though they would not have 106 Va. 171, 7 L.R.A.(N.S.) 349, been such if made on a week day.” 117 Am. St. Rep. 997, 55 S. E. 546, 20 R. C. L. 445.

10 Ann. Cas. 66, the plaintiff filed In the case of Reilley v. Curley, 75 suit to restrain defendant from keeping a kennel of dogs 125 feet dwelling. On the east side was the from his premises, on account of the other unloading platform, and simwhining of the puppies and the ilar noises there disturbed the rest barking of the dogs at night. The of the Mitchells, 100 feet away. In claim was that the whining and addition to this, at various hours of barking kept plaintiff's family the night and day, was the steam exawake at night, and deprived them haust and the operation of the ice of their rest. After a hearing the crusher. Seven or eight hundred noises were declared to be a nui- thousand pounds of ice per month sance, and a decree was made abat- were hauled into and out of the shed ing them.

before referred to. In the meanIn the case of Mitchell v. Flynn time it was passed through the ice Dairy Co. 172 Iowa, 582, 151 N. W. crusher. There were times when 434, the relative positions of the the alley was so congested that cans dwelling and creamery were the and bottles of milk were unloaded same as here. The noises com- upon the sidewalk on University plained of were similar, the time of avenue. This tended to the increase night when the noises were made of the disturbance of persons on the were the same, and the controlling north side of that street. Where so questions are the same. It was said, many teams are brought to a stop in part: “We have already set forth at the same place every day, it is the general nature of the noises com- easily credible that a condition of plained of in the petition. This nuisance would arise as a result of branch of the case discloses just the manure and urine of the horses. grounds of complaint by plaintiffs. This is especially so as to the alley. In considering this question two To a lesser degree the same thing prominent facts of great aggrava

would be true of University avenue, tion stand forth. One is the night whenever it was used for unloading operation of the plant, and the other purposes.” And the court found the is the use of the west alley by the charge of nuisance sustained, and defendant. This alley was paved. ordered an abatement of them. See It was a public alley, but it was also note to Powell v. Bentley & G. practically appropriated by the de- Furniture Co. 12 L.R.A. 53: Stevens fendant to its private use, and there- v. Rockport Granite Co. Ann. Cas. by made a part of its private plant. 1915B, 1055 and note (216 Mass. The alley extended originally to the 486, 104 N. E. 371). south line of plaintiff's lots. The de- We are persuaded that the first fendant, however, built a shed

shed impression of the chancellor in the across the south end thereof. The present case was the correct one. alley was so connected with the The subsequent testimony as to the building as to make a continuous efficiency of the shed does not condrive from the north end of the alley vince us that the noises have been south, then east into the buildings, abated or modified to any extent by then north along an inside driveway. reason of the structure. A stateBottles of milk and cream were load- ment of the relative positions of ed or unloaded from the wagons plaintiffs' house and defendant's standing in this alley. This work creamery, supplemented with debegan at 1:30 in the morning, and fendant's recital of the activities of continued at short intervals into the the plant during the

Nuisanceforenoon. The teams thus standing night, is sufficient were within a few feet of the sleep- to establish the fact residential

section. ing rooms in the residence of Jader- that it is a nuisance strom. Profane (and sometimes ob- as to plaintiffs and their tenants. scene) teamsters did their part to It would be well-nigh impossible to disturb all near-by sleepers. It is have ninety vehicles, consisting of needless to argue that such a situa- automobiles, trucks, and horses and tion would utterly destroy all op- wagons, with their attendant noises, portunity for rest in such adjacent moving about on a stone pavement,

crenmery in

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