Shamhart v. Morrison Cafeteria Company

Morrison's Cafeteria in West Palm Beach fronts west on Olive Street with an alley on the north side. One hundred eight feet to the south is appellant's corner drug store with entrance on Olive Street and also on Datura Street. During the noon and evening meals, customers of the cafeteria form lines on the sidewalk which frequently result in most of the entrances to appellant's drug store being virtually closed to its customers for long periods of time. Appellant sued the cafeteria to enjoin the nuisance and sought damages for loss of business. The cause was referred to a master who recommended a decree for appellant and found the damage to date amounted to $2896.57. Exceptions were filed to the report.

On consideration of the master's report, the chancellor found no basis for injunctive relief; dismissed the bill and therefore did not pass on the amount or the question of damages.

The rule had long been settled at common law that no man shall use his property as to injure another. The general rule is settled by good authority to the effect that abutting property owners may not use the sidewalk in an unreasonable manner and where such unreasonable use is made it is both a public and private nuisance. Where another suffers a special injury as a result thereof he may have appropriate relief. Jacksonville. Tampa Key West Railway Company v. Thompson,34 Fla. 346, 16 So. 282, 26 L.R.A. 410; 25 Am. Jur., pages 606, 607; 39 Am. Jur., page 280 et seq.; McQuillin Municipal Corporations, Revised Vol. 4, (2nd Ed.) Section 1489.

A late case somewhat analogous to this is that of Tushbant v. Greenfields, Inc., 308 Mich. 626, 14 N.W. 2nd 520, wherein it was held that:

"If a nuisance is private, infringes on the rights of others, and arises out of the manner of conducting a legitimate business, equity will point out the nuisance and decree the adoption of methods calculated to eliminate and minimize the injurious features."

The same rule is generally approved by the English authorities.

This case presents a clear case where appellee has utilized the sidewalk as a waiting room for its customers rather than provide a place upon its own premises.

The nature of the use employed, surrounding appellant's entrances, is such as to cause appellant an injury different in kind and degree from the public in general. It is not incumbent on the appellant to solve appellee's problem of how or where to place the customers. Neither will the court devise a plan or suggest a method. The appellee created his problem by utilizing the entire space of his premises for cooking food and seating customers therefore he cannot constantly make use of the public sidewalk as a waiting room to the special injury of appellant.

As to the amount of damages, we will not pass upon that because the chancellor naturally did not get to that question. Upon the mandate going down, the chancellor will ascertain what damages the appellant has sustained.

The decree is reversed.

THOMAS, C. J., TERRELL and CHAPMAN, JJ., concur.

BUFORD and BARNS, JJ., and PARKS, Associate Justice, dissent.