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 memory 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.S.) 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.

troit. They occupied one of the flats and rented the other one. To the west of plaintiffs' lot is a public alley 25 feet in width, and west of the public alley are the lots occupied by defendant as a creamery plant. When plaintiffs purchased their property there, there was one residence immediately west of the alley; but those premises were purchased by defendant and the house moved therefrom. Now defendant's premises bound the alley on the west, and plaintiffs' premises are on the east; their house being situate within 2 feet of the alley. About a year after plaintiffs purchased their premises, defendant bought some lots on that block and established its creamery. Since that time defendant's plant has gradually expanded and absorbed other lots.

It

Defendant has a capital of $750,000 and does a large business. has seventy-five routes over which it delivers milk. It delivers milk to twenty independent dealers for their routes. It employs a large number of men, and operates between ninety and one hundred vehicles, some of which are automobiles and some are wagons. It uses in its business a large number of milk cans, bottles, and cases. It turns out about 2,500 cases of milk every morning. It maintains in the plant a conveyor, which conveys the milk from the plant to the loading platform. To the south of the plant and plaintiffs' premises, it maintains the barns for its horses.

The testimony shows that the active work with trucks and wagons commences about 12:30 at night and increases in activity up to 2:30 or 3 o'clock A. M., when the maximum is reached, and then continues on until between 7 and 8 in the morning. Heavily loaded auto trucks come in over the paved alley and unload, and then reload with empty cans. Horses and wagons to carry the milk over seventy-five routes are gotten ready about 3 o'clock in the morning, and they load up their milk and drive out over this paved alley within 2 feet of plaintiffs'

house. The milk cans are thrown against each other, and the clinking of bottles is heard when the men are loading up or returning the bottles. In addition to this activity, the men are talking to each other in a loud voice in order to be heard. Some of them swear at their restless horses. Automobiles are started and stopped, and some of them are left running during the process of loading, and the smoke and bad odor work their way into plaintiffs' house in the warm weather, when the windows are up.

The plaintiffs allege that this intense activity keeps them awake at night; that they are frequently awakened by this medley of noises, and are afterwards unable to sleep again by reason of them; that the deprivation of sleep has had an unfavorable effect on their health and produced nervous disorders to such an extent that plaintiff lost his position by reason of it. Plaintiffs further complain that by reason of the noise they are unable to rent the other flat in their house; that their tenants would remain only for a short time, because they could not sleep. This claim was verified by several ex-tenants appearing as witnesses and testifying to the fact. Several other witnesses, some of them neighbors, testified to the boisterous manner in which the work of the plant is carried on.

Other witnesses appeared for defendant and gave testimony modifying to some extent that given for plaintiff. At the conclusion of the proof the chancellor announced the following conclusion: "The court: I will find as a fact, and as a matter of record, that the conditions as shown by the evidence to have existed do constitute a nuisance, and I do think this should be so changed and modified by a decree as to abate in a degree the nuisance that now exists."

The chancellor concluded, however, to give defendant an opportunity to better conditions, and suggested that a shed be built over the paved alleyway between plaintiffs'

"The authori

ties are numerous which hold that noise alone, or noise accompanied by vibration, if it be of such character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and be the subject of an action at law, or an injunction from a court of equity, though such noise and vibration may result from the carrying on of a trade or business in a town or city. To have this effect the noise must be unreasonable in degree; and reasonableness in this respect is a question of fact, depending on the character of the business, the manner in which it is conducted, its location and relation to other property, and the other facts and circumstances of the case. The number of people concerned by the noise, and the magnitude of the industry complained of, are both elements entitled to consideration in reaching a conclusion as to the fact. And, again, the time at which noises are made is an element to be considered in determining whether a noise constitutes an actionable nuisance. A noise incident to the operation of machinery during the day may not be a nuisance, while the same noise during the usual sleeping hours of the night would constitute a nuisance. And noises made on Sunday may constitute a nuisance, though they would not have been such if made on a week day." 20 R. C. L. 445.

In the case of Reilley v. Curley, 75

N. J. Eq. 57, 138 Am. St. Rep. 510, 71 Atl. 700, it is said: "The next question is whether noise alone may constitute such a nuisance as to subject the one creating the same to restraint in equity. That such is the case I am convinced from the authorities, not only in our state, but in many other jurisdictions. Of course, the character and volume of the noise, and the time and duration of its occurrence, and the place where it occurs, and the surroundings thereof, are the important and determinative features. Davidson v. Isham, 9 N. J. Eq. 189; Wolcott v. Melick, 11 N. J. Eq. 207, 66 Am. Dec. 790; Ross v. Butler, 19 N. J. Eq. 294, at p. 302, 97 Am. Dec. 654; Cleveland v. Citizens Gaslight Co. 20 N. J. Eq. 201, at p. 205; Demarest v. Hardham, 34 N. J. Eq. 470; Cronin v. Bloemecke, 58 N. J. Eq. 313, 43 Atl. 605; Gilbough v. West Side Amusement Co. 64 N. J. Eq. 31, 53 Atl. 289; Laird v. Atlantic Coast Sanitary Co. 73 N. J. Eq. 49, 67 Atl. 387; First M. E. Church v. Cape May Grain & Coal Co. 73 N. J. Eq. 257, 67 Atl. 613; Powell v. Bentley & G. Furniture Co. 12 L.R.A. 53 (with numerous cases in the notes); Hill v. McBurney Oil & Fertilizer Co. 112 Ga. 788, 52 L.R.A. 398, 38 S. E. 42; Froelicher v. Oswald Ironworks, 64 L.R.A. 228 and note (111 La. 705, 35 So. 821); Herring v. Wilton, 106 Va. 171, 7 L.R.A. (N.S.) 349, 117 Am. St. Rep. 997, 55 S. E. 546, 10 Ann. Cas. 66; 2 Wood, Nuisances, 3d ed. § 611."

.

In Spelling on Injunctions, § 431, it is said: "Noises which tend to disturb rest and quiet in the neighborhood may be restrained. To warrant an injunction against a noise as a nuisance, it must be shown that the noise is such as to produce actual physical discomfort to a person of ordinary sensibilities, and is unreasonably and unnecessarily made."

In the case of Herring v. Wilton, 106 Va. 171, 7 L.R.A. (N.S.) 349, 117 Am. St. Rep. 997, 55 S. E. 546, 10 Ann. Cas. 66, the plaintiff filed suit to restrain defendant from

keeping a kennel of dogs 125 feet from his premises, on account of the whining of the puppies and the barking of the dogs at night. The claim was that the whining and barking kept plaintiff's family awake at night, and deprived them of their rest. After a hearing the noises were declared to be a nuisance, and a decree was made abating them.

This

In the case of Mitchell v. Flynn Dairy Co. 172 Iowa, 582, 151 N. W. 434, the relative positions of the dwelling and creamery were the same as here. The noises complained of were similar, the time of night when the noises were made were the same, and the controlling questions are the same. It was said, in part: "We have already set forth the general nature of the noises complained of in the petition. branch of the case discloses just grounds of complaint by plaintiffs. In considering this question two prominent facts of great aggravation stand forth. One is the night operation of the plant, and the other is the use of the west alley by the defendant. This alley was paved. It was a public alley, but it was practically appropriated by the defendant to its private use, and thereby made a part of its private plant. The alley extended originally to the south line of plaintiff's lots. The defendant, however, built a shed across the south end thereof. The

alley was so connected with the building as to make a continuous drive from the north end of the alley south, then east into the buildings, then north along an inside driveway. Bottles of milk and cream were loaded or unloaded from the wagons standing in this alley. This work began at 1:30 in the morning, and continued at short intervals into the forenoon. The teams thus standing were within a few feet of the sleeping rooms in the residence of Jaderstrom. Profane (and sometimes obscene) teamsters did their part to disturb all near-by sleepers. It is needless to argue that such a situation would utterly destroy all opportunity for rest in such adjacent

dwelling. On the east side was the other unloading platform, and similar noises there disturbed the rest of the Mitchells, 100 feet away. In addition to this, at various hours of the night and day, was the steam exhaust and the operation of the ice. crusher. Seven or eight hundred thousand pounds of ice per month were hauled into and out of the shed before referred to. In the meantime it was passed through the ice crusher. There were times when the alley was so congested that cans and bottles of milk were unloaded upon the sidewalk on University avenue. This tended to the increase of the disturbance of persons on the north side of that street. Where so many teams are brought to a stop at the same place every day, it is easily credible that a condition of nuisance would arise as a result of the manure and urine of the horses. This is especially so as to the alley. To a lesser degree the same thing would be true of University avenue, whenever it was used for unloading purposes." And the court found the charge of nuisance sustained, and ordered an abatement of them. See also note to Powell v. Bentley & G. Furniture Co. 12 L.R.A. 53; Stevens v. Rockport Granite Co. Ann. Cas. 1915B, 1055 and note (216 Mass. 486, 104 N. E. 371).

We are persuaded that the first impression of the chancellor in the present case was the correct one. The subsequent testimony as to the efficiency of the shed does not convince us that the noises have been abated or modified to any extent by reason of the structure. A statement of the relative positions of plaintiffs' house and defendant's creamery, supplemented with defendant's recital of the activities of the plant during the night, is sufficient to establish the fact residential that it is a nuisance as to plaintiffs and their tenants. It would be well-nigh impossible to have ninety vehicles, consisting of automobiles, trucks, and horses and wagons, with their attendant noises, moving about on a stone pavement,

Nuisancecreamery in

section.