Clinic & Hospital, Inc. v. Mcconnell

241 Mo. App. 223 (1951)

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Nature of the Case

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Facts

P operates a clinic and hospital and Ds are engaged in the operation of a music store directly across the street from the easterly part of P's clinic and hospital. Ds installed 'a loudspeaker, amplifier and broadcasting device projected into said Thompson Avenue and directly towards plaintiff's said place of business * * *' in front of their store. Ps allege that defendants have day and night, broadcast through the speaker alleged music which could and can be heard for two blocks from Ds' place of business. Ps alleged that Ds have done this intentionally and maliciously. As such many patients of P have been compelled to leave before they had received proper treatment for their several ailments, and divers and sundry prospective patients have been deterred from and have refused to enter for diagnosis, surgical treatment and hospitalization because of the noise. P claims this is in violation of City Ordinance No. 4863. Ds have been at the location since 1847 and installed a loudspeaker in February 1948. They testified that the shop had never been kept open after 8 p. m., except on Saturdays when it was not closed until 9 p. m.; that he did not 'recall' having operated the loudspeaker as late as 11 p. m. D also said he never refused to reduce the volume of the music when requested to do so, but on one occasion he did refuse to turn off the loudspeaker completely. Ps had complained to him about the loudspeaker, but he had received no complaints 'from any people locally.' D had also installed a new record player and loudspeaker; that the new loudspeaker has a 'smoother volume-hasn't any high pitch to it'; that it could not be heard more than 25 or 35 feet from the music shop; and that when he listened to it from across the street he could hear it 'faintly.' The trial court ruled for Ds and P appealed.