Parish of Orleans v. Franz

CHARLES F. CLAIBORNE, JUDGE. This is a suit under the injunction and abatement Act No. 47 of 1918 p. 67. The suit was filed on July 23rd, 1919 in the name of the District Attorney. He alleged that Mrs. Fred Franz was the owner of the property No. 228 North Rampart Street in the City of New Orleans; that A. Richman and Mrs. Jack Richman were the tenants of said premises; that prostitution wap carried on in said premises in violation of Act 47 of 1918; that said building tos used for said purpose on or about July 5th, 1919; that said premises bear the general reputation of be in#: a place, where prostitution is carried on, and that all the acts charged in this petition constitute a nuisance within the law^He prayed for an injunction enjoining Mrs. Fred Franz and A. Richman and Mrs. Jack Richman from further continuing prostitution on said premises, and for an order of abatement closing up the premises a-jp.inst their use for one year. .The defendant, Mrs. Franz, excepted that she was a married woman and could not be sued without the authorization of her husband. This exception was overruled. This defendant then answered. She admitted that she was the owner of the property 228 Rampart; that she had been told that one A. Richman and his wife occupied said premises; that for lack of information she denied the allegations that said premises were used for prostitution, or that said premises bore the reputation of being a resort for prostitutes; she further alleged that she Had purchased said premises on July. 5th, 1919; that the former owner had collected the rent for the month of July in advance; that she had visited said premises only once and that was on the day before this suit wasfiled, for the purpose of notifying the tenants to vacate on August 1st, 1919, as it was her intention to [378] convert the building into a atore for commercial purposes. There «as judgment against all three defendants; lira. Franz alone has appealed. [1] The exception of Mrs. Franz "that she is a married «ornan and cannot be sued without the authorization of her husband" is not veil taken at this date. It is true, as stated by her counsel, that Article 118 of the Code of Practice and Article 121 of the Oixil Code of 1870 proTide that a suit against a married woman "must be brought both against her and her husband", and that "the wife cannot appear in Court without the authority of her husband"; but Act 244 of 1918 p 435, as we interpret it, has removed these disabilities. The act reads as follows: "Section 1. Be it enacted &c "That a married womaq, whether a resident of this State or not, shall be competent to contract debts, purchase, sell and mortgage, and to bind and obligate herself personally with reference to her separate and paraphernal property, and to appear in courts and to me and be sued, to the same extent and in the same manner as though she «ere a feme sole." Under that statute, although her ability^Jta wife^to contract as a feme sole is restricted to her separate property, her power to appear in courts to sue and be sued is general and unlimited, and dispenses with the necessity of joining the husband as defendant or of obtaining his authorisation, II .. The law under which this suit iA prosecuted is in the following words: "Sec. 1. Be it enacted he: That any building,structure, land or other place in this State, in or upon thioh, or in or upon any part of which, assignation or prostitution is carried on, conducted, oontinned or permitted, or exists, and the furniture, fixtures, equipment and musical instruments therein and other contents thereof are declared to be nuisances, and shall be enjoined and abated as herein provided; and the owner of any building structure, land, or other place in this State, and the [379] officers of any corporation which is the 'owner, and the agent, representative and employe* of any owner, and the lass**, sublessee or oth*r oooupants of any building, structur*, land or oth*r plac* on or upon which, or in or upon any part of which, assignation, or prostitution is carried on, conducted, continued or permitted, or exists shall be guilty of maintaining a nuisance, and shall be enjoined as herein provided". "Sec 4j That if the existence of the nuisance be established in an action under the provisions of this let, an order of Abatement shall be entered as a part of the judgment in the case, which order shall direct the effectual closing of the building, structure, land or other place against its use for any purpose for the period of on* year, unless sooher released &c." "Sec. 7: That on hearing in any action filed under the provisions of this act evidence of the general reputation of the building, structure, land or other place, or of the defendant or of the occupants thereof or habitual visitors thereto shall be admissible and judgment may be based on the general reputation so proven*. Upon the trial of the case four members of the Detective department of the Police force of the City were examined as witnesses. They all testified that the property 228 North Rampart Street had the reputation of being, and was a house of prostitution; that it had been raided three or fourmtimes within the last eight months; that the defendant, Mrs. Richman, had been arrested, convicted, and fined by the United States Court, for operating an immoral house; that on the night of July 5th, 1919 they had the houseunder surveillance; they saw a notorious prostitute enter the house in company with a man; they entered the house and arrested the woman; they went into another room where they found a man in scant garments in company with another woman idiom they knew to be also a prostitute, and whom they arrested also; they had also seen them enter the house. The man arrested with one of the woman testified that he had been solicited by one of the women and went up to the house with her. [380] $Ms avldan0* *•* sufílolant to establish conclusively that the house No. 228 North Rampart street ves om Min which prostitution, was carried on" at least up to and imluding «Toly 5th, 1919 the day upon uhioh the act of sale to the' defendant was passed* The defendant's answer to this proof is twofold, following the lines of her answer: lo gbat she had visited said house only once, and that was the day before this suit was filed, for the purpose of notifying the tenants to vacate, and that she intended to remodel the building and convert it into a store| and she denied that the house was conducted for Inmoral purposes at any time,hat if it was, she argusd, that she oould not be made liable for the illegal acts of the previous owner* As to the first part of this defense, there is not a partióle of tes» tlmony upon the subjeot of lira* Sana's visit to the house at any time, or that she aver, at any time, notified the tenants to vacate, or that she intended or had taken any steps to remodel the building* It does not appear from the transcript that ura* Franz appeared as a witness or testified in the case at all* 2ha only evidence offered in her -behalf was the act of sale to her, and the testimony of her husband. He testified that they bought the house at auction a day or so before the act of sale; that he had never been in the plaoe; that he did not know its reputation and never made any effort to find out; that jack Riohman and his wife had moved out on July 29 or 20th* This is not sufficient to prove that no inmorallty was oomnlttad in that house after July 5th* and up to July 23rd when this suit was filed* When certain conditions are proven to have existed upon a oertaln date, the presumption is that those condition have continued normally, and the/burden of proof is upon the party who alleges tXr- ¡ro¿l-S~S7— .!/■ that they Save changed, 1 Greeiyy&41; 1 H. D., 490 (JBran* h»a produced no evidence of . ohonge of conditions, nor of an intention to change than, Hrs. Biobaan and her husband may hare left of their on tocord, or Impelled by this suit .gainst them. Bat on the oontrory there 1. positire evl-denoe of oontlamlng lunarnilty after July 6th and op to » fen days before the trial oí thla oase. feo of the detootire* testify that since July 6th they had nan the tenant., Mr. and Vre. Blohnen, In the earns hone, and np to a few (ay. before the trl.l, and that they had aleo seen one of the prostitutee mentioned ahora aomlng oat of the hoaee sinos July 6th, and aoooit men on the I (treat, and Ohat they laid aleo arrested her since that time, and that she aontlnuad { to give her real dance os Bo, 228 north Rampart street. Bill eatabllabst eon-olnalrely that the law was continuously violated up to July ESrd, 1919 the j day Hila anlt woe filed, Indeed every oontlnuanae of a —es 1. held to 1 [381] a fraah era. 8 llaokatoa.»**» III» 9a next eontftntion of kr«. Itai 1» that ftla lad no knowladge that tla So. 886 Xorth Bsapert strait «aa conducted aa a house of prostitution. XU do not find It nioftaaary to deoide toa maoh varad nusetion wfceth»r auoh know 1ftdgft uaa an aaaantlal pr«rft<lu4»tt« to • Judgrant against bar, as wa hava cor* to tla donolnslon, iron tko trida»»», that ftht bad snob knowledge. It sbould la not uaoftiaary that tba rast el knowltdgt ba proven oonoluslvaly on aooount ol tha osoult and ayatarlous ebaraoter ol tha occupation,and tba difficulty of procuring «ltnaaaaa, and aa such a rula would tand to destroy tbs usalulnaas of tba law knowladgt masaba lnfarrad from all tba clroumatanoas of tha ossa, t\ 9a notorious raputatlon of tba bouse, tba obaraotar of tba Inmates and ^ Tisltora, gira risa to tba ¡r* sumption that any ona, and particularly ana lnrast-/^\ log bar nonay la tha purche»a of tba house, knew or could or should hate known tba rial foot a about tha bouse, shift ¡ara snap tl on Is msdt conclusive by tbs fallar* of tba defendant to taatify and deny knowledge of any Imaoral reputation vv or oandnet, olearly alleged In the petition and testified to by five witnesses ^ upon tha trial of the osatrfaranamfly In bar ¡areaenoe, and certainly In tba pra- ^ senes of bar attorney. If tba absanoa of knowladge on tha part of bis ellent was . , considered by bin a raterial iaaua, tba ¡rtsumption Is that ha would hsva taken ^ bar testimony, it la a rule of law that whan a party to a suit falla to testify ^ as to certain faota known to him and Important to tba determination of a ault _[ _ tba jrasuaption la that his testimony upon this point would have been against ^ him. 117 La., 286 (283); 118 La., 611; 106 La., 587; 52 La., 1719. Iban It la a wall established fiat that a bout baa bean usad oontlxnoualjr far purposea of prostitution tba Statute sbould ba liberally construed. 149 N.W., 418. Proof at tha ill reputation of a house, or of tba Inmates, or Of parsons resorting tharw^onatituts preauiqitlva avldasoa that tha bouse la ao used with tin knowledge of tba ownar. 155 Pac., 581; 149 N.W., 942; 126 Minn., 95; 147 N.W., 953; Burglaas vs. Boyd No. 7556 Ct. App. 9m Jud grant of tba trial Court was In favor of plaintiff and wa cannot ■ay that ha errad. Judgmtnt Ifflrrad. Karoh 22nd, 1920.