#### Koebler et al. *v.*Pennewell et al.

*Definition of morgue*— Rights *and povoers of crematory associations*— Interpretation *of Section 3586a, Revised Statutes*— Does *not prohibit undertaking establishment on residence street, when.*

1. In the interpretation of Section 35860, Revised Statutes, the word morgue, being without definition in the statute itself, must he given its usual and commonly accepted meaning which is, a place or dead-house, where the bodies of persons found dead are exposed for identification or that they may be claimed by their friends. And the Legislature in the enactment of the section must be held to have used and employed the word in „ that sense, and as descriptive of such a place.

2. Above Section 35860, which provides that: -it shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occupants of such dwelling-houses within two hundred yards of said proposed morgue give their written consent thereto, does not prohibit the location of an undertaking establishment on a residence *279street, nor make it unlawful to receive, care for and keep temporarily in an undertaking establishment thus located, in a private room thereof and unexposed to public view, the bodies of known and identified dead which are from time to time taken to such undertaking establishment at the instance and request of relatives or friends of the deceased that funeral services over the bodies may be held and conducted at that place.

(No. 9474

Decided November 20, 1906.)

Error to the Circuit Court of Cuyahoga County.

Suit was brought in the Court of Common Pleas of Cuyahoga County by Charles E. Pennewell *et al.*as plaintiffs against Julius Koebler *et al.,*defendants, to enjoin the latter from maintaining and carrying on the undertaking business in and upon their own premises at No. 1264 Willson avenue, in the city of Cleveland, for the alleged reason that said business there conducted and carried on, at that place, constituted and was a nuisance, and they asked that said defendants be restrained and enjoined from establishing, keeping or using in or upon their said premises a morgue. In the court of common pleas upon trial of the issues joined, that court found the issues in favor of the defendants and dismissed the plaintiff’s petition. Plaintiffs appealed to the circuit court, where the cause was again tried upon the pleadings, exhibits and testimony. Upon the trial of the case in the circuit court that court made the following finding of facts, to-wit:

“First. That the defendants, Julius Koebler and William Koebler, as partners, on and ever since the 5th day of July, A. D. 1903, have occupied the brick building described in the plaintiffs’ petition herein, and formerly a private dwelling-house, and known as 1264 Willson avenue, and *280also the premises upon which such building stands, and the appurtenance thereto, all of which are situated in the city of Cleveland, county of Cuyahoga and state of Ohio, and that said defendants, by themselves, their agents and servants, having during said time carried on upon said premises and in said building, and the appurtenance thereto, the undertaking business; that in connection with said undertaking business the said defendants, during said time, maintained, and kept on said premises and in said building a room or place in which, since the said 5th day of July, as the exigencies of said business required, the said defendants have from time to time kept the bodies of deceased persons for a period of time, varying from one to three days, and in most instances until burial. That said defendants at all times since said July 5th, 1903, when employed so to do, have sent to hospitals, railroad depots, residences, and other places, for dead human bodies, which they have transported to their said place of business, and have kept the same in said place so set apart for the same, until the same were taken away for burial. That for the purpose of enabling the said defendants to carry on said business, as undertakers and the said business of caring for and keeping dead human bodies, at the place aforesaid, they kept and maintained at said place two dead-wagons, a hearse and other vehicles and appliances necessary for the purposes aforesaid in which bodies were brought to said premises, driven into the barn and carried thence through a covered passage-way to said room in said house, neither body nor casket being exposed to view of persons outside said barn or *281house. That some of the bodies so received by the defendants at their said place of business were washed, dressed and embalmed at their said place of business after being brought there. That the said defendants propose to and will continue at said place, and the premises and the appurtenances thereon, and in connection therewith described in plaintiffs’ petition, to receive, wash, dress and embalm and keep the bodies of deceased persons, unless prevented from so doing by the order of this court.

“Second. The court finds that said Willson avenue, on July 5th, 1903, and for a long time prior thereto and ever since, has been a public highway and street located within the city of Cleveland, county of Cuyahoga and state of Ohio, and that all of the plaintiffs, during all of the times aforesaid, have lived and still live upon said street and occupy dwelling-houses, located and fronting’ on said Willson avenue, as residences only; and all of which dwelling-houses are situated and fronting upon said Willson avenue, within two hundred yards of said building, known as 1264 Willson avenue, and within two hundred yards of the boundary lines of the premises fronting upon Willson avenue, and upon which said building is situated. That for- some time prior to the said 3th day of' July, A. D! 1903, and all the times herein mentioned, one of said plaintiffs has occupied a dwelling-house, as a residence only, immediately adjoining and north of said building known as No. 1264 Willson avenue, and another one of said plaintiffs during all of said time has occupied and still is occupying a dwelling-house as resi*282dence only, immediately adjoining and south of said building known as No. 1264 Willson avenue.

“Third. The court finds that said defendants established their said undertaking business and the said business of so keeping dead human bodies at said building, known as 1264 Willson avenue, and the premises on which the same stand, and the appurtenances thereto, on or about the 5 th day of July,-A. D. 1903.

“Fourth. The court further finds that the said Willson avenue in the vicinity where the said business of said defendant was^ established and has been maintained and carried on, was on and for a long time prior to July 5th, 1903, and ever since has been and still is a residence street; that within the distance of two hundred yards from said building known as 1264 Willson avenue, there are and at all times have been located a large number of dwelling-houses, used as residences only, fronting upon said Willson avenue and occupied by persons exclusively as residences. That the said defendants have never at any time obtained from any person or persons owning or occupying a dwelling-house and residence fronting and situated upon said Willson avenue, as a residence,, any consent of such person or persons to establish or maintain or keep their said business of receiving and keeping at said place, the bodies of deceased persons, or the consent of such person or persons to establish or maintain or keep at said building known as 1264 Willson avenue a morgue, and that said residence property has been materially depreciated in value, and the value of the use of same materially depreciated by the maintenance of said place.”

*283As conclusions of law from the above. facts, said circuit court found and adjudged as follows:

Conclusions of Law.

“First. That the business of receiving and keeping dead bodies as carried on by the said defendants, at said place known as 1264 Willson avenue, constitutes the establishing, keeping and maintaining of a morgue, within the provisions of Section 3586a of the Revised Statutes of the state of Ohio.

“Second. It is therefore ordered, adjudged and decreed, that the said defendants, each and both of them, their agents and servants and all persons claiming through or under them, be and they hereby are enjoined from receiving at said place known as 1264 Willson avenue in the city of Cleveland, county of Cuyahoga and state of Ohio, and the appurtenances thereto so occupied by them, the bodies of deceased persons, except for funeral purpose's only, and when so received, said bodies shall be fully prepared for burial in caskets, from which they shall not be removed and shall not remain upon said premises for said funeral purposes more than twelve hours, and that said plaintiffs recover of said defendants their costs herein to be taxed.”

To which findings of fact and of law separately, .the said plaintiffs separately excepted, and to which findings of facts and of law separately, the said defendants separately excepted. And the defendants and each of them further except to said findings of fact in that there is a failure to *284find facts material to the defendants which are established by the evidence, and further that the findings of fact are imperfect in that they are too general in their terms and do not specifically find the facts in issue. Julius Koebler *et al.,*defendants below, file their petition in error in this court asking a reversal of the judgment and decree of the .circuit court, and Charles E. Pennewell *et al.,*plaintiffs below, file their cross-petition in error asking for a modification of said judgment and decree.

*Messrs. Olds & Willet*and *Messrs. Blandin, Rice & Ginn,*for plaintiffs in error, cited and commented upon the following authorities:

Endlich on Interpretation of Statutes, Sections 341, 342; *Hall*v. *State,*20 Ohio, 7; *Shultz*v. *Cambridge,*38 Ohio St., 659; *Wescott*v. *Middleton,*43 N. J. Eq., 478; *Kinnear Manufacturing Co.*v. *Beatty,*65 Ohio St., 264; *Quincy Canal*v. *Newcomb,*7 Metcalf (Mass.), 276; *Farrelly & Co.*v. *Cincinnati,*2 Disney, 516; *Lansing*v. *Smith et al., 8*Cowen’s Reports, 146; *Hartshorn*v. *South Reading,*85 Mass., 501; 15 Am. & Eng. Ency. Law (2d Ed.), 764; Wood on Nuisances (3d Ed.), par. 3; *Gibson*v. *Donk et al.,*7 Mo. App., 37; *Cleveland et al.*v. *Citizens Gas Light Co.,*20 N. J. Eq., 201; *Duncan*v. *Hayes et al.,*22 N. J. Eq., 25; *Ross et al.*v. *Butler,*19 N. J. Eq., 294; *Crawford*v. *Hospital for the Insane,*7 Montreal Law Rep., Q. B., 57; *Robb*v. *Carnegie Brothers & Co.,*14 L. R. A., 329; *Long*v. *City of Elberton,*46 L. R. A., 428; *Pennsylvania R. R. Co.*v. *Lippincott,*116 Pa. St., 472; *Parrott**285v. *C. H. & D. R. R. Co.,*10 Ohio St., 624; *Demarest et al.*v. *Hardham,*34 N. J. Eq., 469; Wood on Nuisances (3d Ed.), Vol. 2, Sec. 880; *Henry*v. *Trustees,*48 Ohio St., 671; Sections 1464, 3573 and 3586, Revised Statutes.

*Mr. T. H. Johnson*and *Mr. A. W. Lamson,*for defendants in error, cited and commented upon the following authorities:

Spelling on Injunction, Section 373; Wood on Nuisances, Section 474, p. 646; *Duncan*v. *Hayes et al.,*22 N. J. Eq., 26; *Ross et al.*v. *Butler,*19 N. J. Eq., 294; *Cleveland et al.*v. *Citizens Gas Light Co.,*20 N. J. Eq., 201; *Catlin et al.*v. *Valentine,*9 Paige, 575; *Gilford*v. *Babies’ Hospital,*21 Abbott, 159; *Barnes*v. *Hathorn,*54 Me., 124; *Columbus Gas Light & Coke Co.*v. *Freeland,*12 Ohio St., 392; *Eller*v. *Koehler,*68 Ohio St., 51; *Henry*v. *Trustees,*48 Ohio St., 672; 59 Central Law Journal, 201; Sections 3573 and 3586a, Revised Statutes.

Crew, J.

If, in this case, upon the facts proven, the circuit court was warranted in finding as matter of law, “That the business of receiving and keeping dead bodies as carried on by the said defendants at said place known as 1264 Willson avenue, constitutes the establishing, keeping and maintaining of a morgue within the provisions of Section 3586a of the Revised Statutes of the state of Ohio,” then plaintiffs below were entitled to the relief prayed for, and should have had judgment in their favor abating said morgue. But, on the other hand, if the above finding of the circuit court was erroneous and unwarranted, then upon this record, there being no finding that *286the place was a nuisance *per se,*nor evidence to support such finding, plaintiffs were not entitled to .any relief, and their petition should have been dismissed. So that, from whatever view-point this record may be considered, it must we think be conceded that the judgment and decree as made and entered by the circuit court in this case is erroneous, and is the result of an endeavor on the part of the court to arbitrate, rather than to adjudicate, the matters in dispute between the parties. Upon the present record, then, the single question material for our consideration, and the one that is determinative of the rights of the parties hereto, is: Do the facts proven sustain and justify the conclusion of the circuit court that defendants were keeping and maintaining a morgue at No. 1264 Willson avenue, contrary to the provisions of Section 3586a, Revised Statutes? This section, so far as its provisions are pertinent here, is as follows: “It shall be unlawful for any person or persons, company, association or firm to establish a morgue on any street or part of a street upon which are dwelling-houses, unless the owner or occupants of such dwelling-houses within two hundred yards (200 yards) of said proposed morgue give their written consent thereto.” What, then, is a morgue within the purview and meaning of the above section? In the interpretation of this section, the word *morgue*being without definition in the statute itself is to be given its usual, ordinary and commonly accepted meaning, and the Legislature must be held to have employed and used it in that sense. The word is defined by standard lexicographers and dictionaries as follows:

*287Black’s Law Dictionary — Morgue. A place where the bodies of persons found dead are kept for a limited time and exposed to view, to the end that their friends may identify them.

Rapalje and Lawrence’s Law Dictionary— Morgue. A place where the bodies of persons found dead are kept for a limited time, to the end that their friends may identify and claim them.

Century Dictionary — Morgue (a transferred use of old French Morgue, in the Chastelet of Paris; a certain chair wherein a new-come prisoner is set and must continue some hours without stirring either head or hand, that the keeper’s ordinary servants may the better take notice of face and favor). Cottgrave. A place where the bodies of persons found dead are exposed that they may be claimed by their friends; a dead-house.

Standard Dictionary of the English Language —Morgue. A place where corpses of persons found dead are exposed for identification; a dead-house.

Webster’s International Dictionary of the English Language — Morgue. A place where the bodies of persons found dead are exposed that they may be identified or claimed by their friends,; a dead-house.

Thesaurus Dictionary of the English Language by Professor March — Life—Funeral. Page 605. Morgue. A place where the corpses of persons found dead are exposed for identification.

Encyclopedic Dictionary — Morgue. A place where the bodies of persons found dead are exposed in order that they may be recognized and claimed by their friends; a dead-house.

*288From the foregoing definitions we must conclude that the word *morgue,*in common parlance, is used to designate or describe a place where the bodies of unidentified dead are kept and exposed to view. for the purpose of identification or that they may be claimed by their friends. And there is nothing in Section 3586a to indicate that the word as therein used was employed in any other or different sense, or that the Legislature intended to give to it, or that it should have as therein used, a different- or more comprehensive meaning. Applying then this definition or test, were the defendants below keeping or maintaining a morgue in or upon their premises at No. 1264 Willson avenue? In the present case this is not to be determined solely upon the facts stated by the circuit court, for complaint was made in that court, and is here made, by counsel for plaintiff in error, that the findings of fact as made and stated by the circuit court are incomplete, indefinite and misleading, that material and controlling facts established by the evidence are omitted therefrom, and that the facts found are so imperfectly stated, or stated by the court in such manner, as to be misleading. And counsel have presented to this court with their petition in error a bill of exceptions containing the whole of the evidence introduced on the trial of this cause in the circuit court. An examination of this bill shows the following facts established by the evidence without contradiction: Prior to July 5th, 1903, Julius and William Koebler were engaged in the undertaking business in the city of Cleveland. On that date, having theretofore purchased the house and premises at No. 1264 Willson *289avenue, they established their said undertaking business at that place. In the house situated on said premises, which house had formerly been a dwelling-house, they selected, fitted up and thereafter maintained a certain room or place which they called the chapel, in which from time to time funeral services were held and conducted, and in which the bodies of deceased persons received by them were temporarily placed and kept until their interment. From July 5th, 1903, to the time of the trial of this 'case in the circuit court, which was more than a year and five months, the total number of bodies received by them was twenty-six (26). Of these all but three had been prepared for burial before being taken-to defendants’ place of business, and all were taken there at the instance or request of relatives or friends of the deceased that funeral services might be held and conducted from that place. These bodies when at their establishment were placed in, caskets, were kept in this chapel, or a private room adjoining the same, and were not exposed to public view except perhaps at-the time when funeral services were being conducted over the remains. No unidentified or derelict body was ever in their place, and while, as found by the circuit court, bodies were taken to defendants’ place of business from hospitals, railroad depots and private residences, yet in every instance they were, as above stated, taken there at the request of relatives or friends, and in order that funeral services might be conducted and held at that place. That which was done by defendants in this behalf was not different from that done by persons conducting modern undertaking establishments in all the *290large cities of the state. These facts being undisputed, the finding and conclusion by the circuit court that the business of receiving and keeping dead bodies as carrried on by defendants at their place, No. 1264 Willson avenue, constituted the establishing, keeping and maintaining a morgue, was, we think, unwarranted and erroneous.

We believe that the word morgue as found in this section was advisedly used by the Legislature, and that it clearly and appropriately defines and expresses the legislative intent as to the character of place intended to be prohibited; namely: a place where the unidentified and derelict dead are at all times received and kept and exposed to public view for the purposes of identification, thereby inviting and attracting to such place crowds of the morbid and curious who visit the place for no other purpose than that they may view the bodies there exposed. But in the absence of language requiring such construction, we can not think that the prohibition of this section was directed against, or was intended to include, the ordinary undertaking establishment conducted in the usual and customary way. If such had been the intention of the Legislature, it was easy to have expressed that intention in plain and unmistakable terms, but no such intention is expressed. The judgment of the circuit court will be reversed and the petition of the plaintiffs below, defendants in error here, will be dismissed.

*Judgment reversed and petition dismissed.*

; Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.