Tedescki v. Burger

MAYFIELD, J. This is the second appeal in this case. The allegations of the original and amended bills are sufficiently shown in the former report. — See 150 Ala. 649, 43 South. 960, 11 L. R. A. (N. S.) 1060. That decision, and a more recent one in the case of the same complainant against Barnett (154 Ala. 474, 45 South. 904), fully and we think correctly settled all the equities of this bill, and settled them in favor of the contention of appellee, complainant in the court below. After the former decision in this cause, wherein the decree was reversed upon the rulings of the chancellor upon the demurrers of the respondent Burger to the bill, each of the respondents answered the bill separately, denying most of its material allegations. A number of witnesses were exam in536 ed, both by the complainant and by the rspondents, and the case was submitted for final decree upon the amended bill, answers, and the testimony of witnesses, as shown by the register’s note of testimony. The chancellor rendered a final decree, dismissing the bill absolutely and unconditionally, at the costs of the complainant, from which decree the complainant appeals. This final decree is not accompanied by any opinion of the chancellor. Consequently the record does not inform us upon what ground or for what cause the bill was -dismissed finally. We fully agree and concur with, the chancellor that as against the respondent Burger the complainant was not entitled to relief, because of the insufficiency, if not entire failure, of the proof to support the averments of the bill, which averments this court held, on a former decision, unquestionably gave it equity as against said Burger. As against the respondent Ruby Davis, however, while we do not think that there was such failure of proof, we are of the opinion that there Avas such a variance as to prevent the relief prayed. Had the complainant amended her bill, as she had a right to do, by striking out the part thereof directed against the respondent Burger, Ave think she Avould have been entitled to relief, notAvithstanding the fact that the evidence may show that she maintained or alloAved a similar nuisance as near her own residence and property as that alleged to have been carried on by these respondents. This was a public nuisance, and any person suffering damages thereby might have maintained an action to abate or enjoin; nor would the wrongs of the complainant have prevented the injunction .of a public nuisance. But in this cause, on account of the variance between the allegations and the proof, no relief could be granted as against either of respondents, and the bill was, therefore, properly dismissed, but should have been dismissed without prejudice. [537] As was said by this court in a former opinion, section 2 of tbe original bill averred, not only tbat Burger owned or bad control of tbe property, but also tbat Ruby Davis, kept and operated a house of prostitution in said premises by and with tbe permission and consent of said Burger. It was clearly proved tbat Burger owned and controlled tbe property; but we do not think tbat it ivas shown by the proof that the bonse of prostitution alleged was kept with tbe permission and consent of Burger. After a demurrer was sustained to the original bill, tbe complainant amended her bill by adding at tbe end of tbe second paragraph an amendment, which alleged, first, tbat, if complainant was mistaken in tbe allegations of paragraph 2 of tbe bill, she states and she shows tbat tbe said Louis Burger and Ruby Davis maintained and operated tbe disorderly bouse described in the second paragraph; and, second, if mistaken in tbat they operated tbe bouse jointly, she alleges tbat Burger is tbe landlord of Ruby Davis, and knowingly permitted and permits tbe premises to be used as a bawdy house, or for tbe purposes of prostitution; and, third, if mistaken in tbat, that tbe respondents did keep a disorderly, public, and ill-governed house, etc.; and, fourth, if mistaken in tbat, tbat tbe said Burger, well knowing that Ruby Davis was a prostitute, and knowing that tbe premises were kept by tbe said Ruby Davis for the purposes of prostitution did lease or let tbe same to tbe said Ruby Davis as a. bawdy bouse and for public prostitution, etc. Consequently every allegation as to tbe maintaining or keeping of the bouse of prostitution was clearly and distinctly to tbe effect that it was maintained and kept by the respondent Ruby Davis with tbe knowledge and consent of respondent Burger, or that it was maintained and kept by them jointly, or tbat he, as landlord, leased or let tbe same to Ruby Davis for a bawdy bouse and for [538] the purpose of prostitution. We are of the opinion that the evidence entirely fails as to the proof of either one . of these allegations. We think, however, that it does show that such house was maintained and kept by the said Ruby Davis alone, and without the knowledge or consent of the respondent Burger. The only evidence appearing against Burger is the mere presumption that a landlord knows, or ought to know, what is being carried on upon his own premises. Such knowledge, however, was expressly denied by both of the respondents. There is also evidence that Burger was on the premises while they were so occupied by Ruby Davis; but it is not shown that he saw or knew of any facts sufficient to put ,him upon notice of the use to which the premises were being put. His presence there on these occasions was explained by him; such explanation being accompanied by an express denial that he had any knowledge or notice of such use. It is also shown by the proof that, while he was the owner of the premises, the lease or letting was made, not by him, but by real estate agents. It is true that the witness Burger himself, in answer to a question propounded by his solicitor as to what was the character'of tenants that occupied the lot in which complainant’s property was located on the 1st of February, 1906, answered that “the whole block was prostitutes, except the complainant’s family.” It clearly appears, however, that the question was directed toward the character of other houses than that of the respondent, and especially toward those owned or leased by the complainant, and, further, that it was as to the character of the block on the 1st of February, 1906, while the bill in this cause was not filed until October 15, 1906, and by complainant’s own evidence it was shown that Ruby Davis only occupied the premises or used them as a house of prostitution three or four months before the filing of [539] the bill. We cannot agree with counsel for appellant that this is .sufficient to establish Burger’s full knowledge of and concurrence in the purposes and use to which the house was devoted by Ruby Davis. There was an attempt by the complainant to prove knowledge or consent on the part of Burger by admissions that he did have such knowledge or gave such con.sent. ■ In this the evidence also fails. The most, if not all, that these admissions could be said to prove, ivas that Burger had told certain parties that he had instructed his agent to get the occupants out of his house, that the agent rented the property and that as soon as he (Burger) discovered that the tenants were loose characters he forced them to move. This is far from proving the allegations of knowledge of or consent to the use of the house for the purposes of prostitution. On the contrary, it rather tends to disprove them. We think, for these reasons, there was an entire variance between the allegations and the proof, in which case no relief can he granted. The variance, also, as we have shown, is as to material allegations. Therefore, in such cases, where there is a fatal variance, the bill should be dismissed; hut this should he done without prejudice. The decree of the chancery court is here corrected, so that the hill is dismissed without prejudice to the rights of the complainant. As thus corrected, the decree is affirmed. — Munchus v. Harris, 69 Ala. 506; Cameron v. Abbott, 80 Ala. 416. Corrected and affirmed. Simpson, Anderson, and Denson, JJ., concur.