Parish of Orleans v. Garaflo

3 Pelt. 383

• Court: Louisiana Court of Appeal
• Decided: July 1, 1920
• Docket: No. 7760
• Status: Published

Opinion

By Pinkelspiel, J

The District Attorney for the Parish of Orleans instituted the present suit against the owners and tenant of the premises 318 South Liberty Street, same being under act of the Legislature No. 47 of 1918, and charges "that the premises in question was a house of prostitution and assignation, conducted, continued, or permitted, or exists in violation of the lav/."

And he further avers that the said building and premises are used by prostitutes for the purpose of prostitution and assignation and others of like character who rent rooms therein and use said rooms for the purpose of prostitution and assignation; that said premises were used on or about August 2, 1919; that bore said premises/the general reputation of being a resort of prostitutes and a place where prostitution and assignation was permitted, carried, conducted or exists, and that all acts charged ir: the petition constitute a nuisance frith in the law, and that a writ of injunction and abatement is neocsSsiry and should is..ue herein.

A rule nisi issued directing the defendants to show cause why the writ prayed for should not iasue and for judgment of abatement closing the house for one year beinv, rendered.

The answer of the owners. Pulvadoro and Anthony Curaflc, admit t'~e ■.v'norship of the property in question and deny all other allegations contained therein, particularly in reference to the immorality of the 1eard of it; house in question or that they ever/that their tenant, Rosalie ’foodr.-an, who had occupied the place for eight years, had always borne a good reputation and as far c.~. they, the owners, kaaw, the premises in question vero u*sól as * roer. ing and eo.-irdir.,. house, had had r.'-,.-eot..tle „-:c,,li?. aa tenants thereof, and if same '•'a« used for immoral purposes, which they deny, same •■•na Us.ed without theirt knowledge or consent o,nd‘with their di¡approval.

The other dsfeiaU-rt, the occupant of the 5re.1r.ioes, in her answer adr.itj the occupancy of the premises, eh she h-d occupied for sore than loot years in the past and ivas ad fay. conducted 'ey her as a rooming and hoarding house, and that she had always conducted same in ar- orderly -..unrer, cor.lied v.ith all the li’.a and regulations ir afreet, and that sh.e "’as living in »-iin ..roriscs about the time in ouestiar. and never had rented said rooi*for any such purpose eit'“sr for ¿.restitution or ao-tignaticr..

°l..irtirf introduced in the court a -vuo several vritnessss, one Charles re':'!-'., -..ho cubit:- nti-illy stat.o1»: That he had never beer, in the house in question at any tine, except on the night of August 7, ISIS; that he •rent there in company with a friend of his and tiro girls; that he saw the defendant, Rosalie “ccdra-in. had little or no conversation with her, enraged a reem, did not knew the reputation of the house, had never heard it discussed did not commit any act of ¿.restitution, end -did not see any act of prostitution committed; did not say to Rosalie Woodman why he wanted the room; was not a paid investigator of vice nor a detective, nor was he investigating; to aseettain whether or not this was an immoral house; does not know how the police got information about the house; had been in the service of the United States, but not at the time; was not in uniform, his occupation at that time being that of a salesman.

Sergeant Martin R. Push was the next 'witness examined on behalf of plaintiff and he testifies that he knows the premises in question, 318 South'liberty Street; never knew who kept these rooms until the night of August 7th, above referred to; describes the condition on the night in question and the people he found there, three men and three women; also describes the character of clothes they wore; disclaims any knowledge that he knew the reputation of the house in question for morality or immorality; arrested the various parsons found in the house; the women were sent to the Isolation Hospital; he had beer, in the Hirst Precinct since the 1st of March, 1S18; never had occasion to arrest Rosalie v,'oodman, nor investigate her premises; knew nothing about the premises at all, other than what occurred on the night in question; and what he did was under the instructions of Captain Healy, who was in command of the First Precinct, and that was to watoh this house; had never investigated the premises himself; only acted upon instructions received from his superior officer; knew nothing of his own knowledge about the character of the house in question, nor the circumstances under which the rooms were rented; and'he was asked the question, "Do you know whether prostitution is permitted, carried on, continued or existed in that house?"- And he answered, "No sir, I don’t." Had been investigating the house for three weeks and saw no act which would justify making any arrest; passed the place often, and did not see anything out of tlpte way during his tours.

The court asked this witness: "Did you inquire of parties living in the neighborhood?" And he answered: "No sir, I made no investigation; received no complaint of the house; only under the instructions from the Captain, and that is why I had the house under surveillance for three weeks"; and during those three weeks he was asked if he inquired anything from the neighbors about the house, and his answer was "!Io sir".

Andrew Arnold, a. witness for plaintiff, states: He was working in plain clothes in the First Precinct on the 7th of August, 191S, and went into the premises in question; had been in that neighborhood at that time several hours; he described all parties going in there about midnight and informed Officer Fitzpatrick about it; had never watched the house in question at any time previous to the occasion referred to, and was only called upon to watch it on this particular occasion, and he described it as the other witnesses had, the rooms, the people, and other particulars in reference to clothing or want of clothing of the people found in the premises; he had made no investigation of the character of the people in question; knew nothing about the circumstances under which they rehted the rooms; had been in that particular precinct since the middle of June; never investigated the house prior to the present ocoasion; knew nothing of the reputation prior to that night; ¡loes not knovi whether prostitution is permitted, carried on, or exists in the premises, except as to the night, in question; never knew that the parties had ever been arrested before, nor whether the defendant, Rosalie Woodman, had ever been arrested; knew nothing about the general reputation of the house; never heard one v;ay or the other anything about it.

Corporal A. G. Giraud testifies that he found .three women in the house on that evening, who gave their names: had 'been on the police force for 19 years and in the precinct on different occasions possibly for a year and a half; does not know the defendant, Rosalie Goodman; personally, simply by sight; never had an occasion to investigate that house at any time prior to this night, and on this night had some one else investigating the plao6; and in answer to the question whether prostitution is permitted, carried on, or exists in the premises, he answered, "'tell, they did that night", and beyond that he knows nothing; never arrested any women from that house'before; never had a complaint before; and the only night a complaint was made was on the night in ijuestion.

Rosalie Woodman testifies: She was one of the defendants; that she lived in the premises 318 South Liberty Street from childhood; that she was now £8 years old; that her mother had lived there prior to her death; had never during the whole period of her life been arrested; had nevar kept a house of prostitution and assignation, but si::g.ly rented rooms, conducted a boarding house, and generally people boarded there by the week; she gave the names of several of her boarders, the prices charged for board and lodging; and she testified further that on the night of August 7th several ladies came and wanted room., ana she Uskea the question whether for room and beard, and they answered in the affirmative. She then described the entrance of the police, who arrested her and the other inmates of the house. Testifying in reference to a gentleman named Elino Thiot, who had several times ranted rooms in this particular house, she says that he m — de arrangements with her for room and board; that she did not know that ha was living at 1317 Baronne Street and she knew nothing more than what she had testified to; that he had been through her ho’-use several tines; that she had lived in this house with her mothef some 15 years and she lived in it prior to the ownership of the other defendants, and at the time that she and her mother rented it, it was owned by Mr. Jim Douglas.

We have substantially quoted from such parts of the testimony in this case, both for plaintiff and defendant, in order to asoertalh whether or not plaintiff was entitled under tfye law to the relief sought and the Judgment prayed for.

Several oases of like character have been beforothi* Court, and we have decided ir. the case of this plaintiff against A. Burglass aikl others, quoting from the syllabus of that case: "A single immoral act or even a series of immoral acts between the same persons does not constitute prostitution or brand the house, wherein they are permitted, a house of prostitution."

"To constitute a house of prostitution or assignation, the premises must be maintained either,if only for a brief period, for the purpose of promiscuous commerce between the sexes."

In the 215 N. Y. page 167, Tenement House vs. McDavitt, the syllabus reads: "We hold that an owner is not liable for a penalty because of a single act of vice, undiscovered either by himself cr his agent. The penalty is imposed when the building has been kept or maintained by the occupant for the purpose of prostitution; if, however, the occupant has used it for indiscriminate intercourse tilth men, the intelligent owner will'^artBnt be obliged to know of the offense and must prevent it at his peril."

"The penalty i» recoverable without -knowledge or negligence of the owner. The Imposition of such a penalty assumes, however, a condition of permanence sufficient to constitute a use, and that an act of vice on a single day, followed at once by the eviction of the tenants, is insufficient of itself to «how that the building has been used for prostitution within the meaning of the law." «ame authority, pare 173.

"Freaking of disorderly houses, bawdy house, 14 Cyc. 484. "A bawdy house or a house of ill fane is a house or place kept fcr the shelter and defense of persons practicing unlawful sexual intercourse and in which such intercourse is practiced." And from the same author: "A bu niy house vu.., . public nuisance under common law because it gmm- together lewd and debauche-1 persons, thus attempting f: disturb the peace and to inore.se .lity among the ¿.eople."

The statute 1-, cuestión being hi. hlv penal, must i be otnictly con»trueu, unless find that the nuisance is carried donductel. continued or permitted, or exists, a.- definei by the act.

He.ving -pu.-te 1 sub.: to-dial ? y from the testimony of policemen, both in uniform and un ^lain clothes, we find only that cn the night i' question, notwithstanding some of the officers vad been or. the force for many yc-rs, r.cti.-itlvita'Viing that ,'cr several weeks a constant and continuous ion iras made as to the c'-'-ruoter of thio houoa uni its inmate», there is no evidence produced to ¿.rove there hod b3sn anything '."'■or.g ■■:'bh these premise; at all, except on the night in gur.stioa.

The da'"end lint, Rosalie "h r imfn, -/ho had occupied these r.re-z.i-.?:; with her mother, who had died about a year prior to the institution of this suit, who had resided in the premises for about 15 or 16 years, in fact, since childhood, who had never been arrested, had never been molested in any manner, shape or form, who had always conducted a boarding hnd lodging house without question, and only on the night referred to had there ever bean the slightest Impropriety shown so far as these premises were oonoernsd, or as against the character of the defendant, so that under these circumstances it would not be proper to hold that this was a house of prostitution, where prostitution existed, was conducted, continued or carried on, and ifcatxjuenaJt ml fllthout proof of this character, certainly a determination to that effect would be utterly impossible, and flo hold the premises in question such an Immoral house as to cause it to be closed for one year and for an injunction as the aot commands would not,in our opinion, be justified.

Determining whether or not the defendants, the owners of the premises in question, s hould suffer the-consequences that flow from the act, we must be absolutely oonvinoed that the house in question was a house of prostitution and that prostitution was carried on, and it bore the reputation of suoh a house, and whatever doubts there may be must, in our opinion, be given to the owners of the premises.

In this oase the only appellants are the owners. The woman, Rosalie Woodman, has not appealed and, there-"ore, her case is not before us.

Careful investigation of all the evidence in this record satisfies that the' plaintiff has not made Its eertain, tha .burden of proof being upon the plaintiff, whloh ít hae failed to maintain.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the court a ^uo he and the seme is here'oy annulled, reversed and set aside and that there now be judgment in favor of the defendants, Salvadoro ?.nd AnthonyOSraflo, dec! >.rir.g the house in question not to be a nuisance and that the injunction, together with the judgment premises in cuestión,, be/i annulled. / // -r~, abatement of the

Judgment reversed. Judgment for defendants.1