Tedescki v. Berger

• Decision Date: 16 May 1907
• Citation: Tedescki v. Berger, 43 So. 960, 150 Ala. 649 (Ala. 1907)
• Parties: TEDESCKI v. BERGER ET AL.
• Court: Alabama Supreme Court

43 So. 960

150 Ala. 649

TEDESCKI v. BERGER ET AL.

Supreme Court of Alabama

May 16, 1907

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Suit by Felicia Tedescki against Louis Berger and another. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed.

E. K Middleton and E. H. Dryer, for appellant.

Kennedy & Ballard, for appellees.

SIMPSON J.

The bill in this case was filed by the appellant against the appellees, and sought to perpetually enjoin the maintaining or continuing of a nuisance, in the shape of a house of prostitution, on premises adjoining the home of complainant and also to recover damages on account of the same. In the bill it is alleged that the house in question is owned or controlled by the defendant Berger, that the disorderly house is kept by the defendant Ruby Davis by and with the consent and permission of said Berger, and the riotous and indecent conduct of the inmates and frequenters of said house is described in the bill. The defendants demurred separately to the bill, and a decree was rendered overruling the demurrer of the defendant Davis, and sustaining the demurrer on the part of the defendant Berger. The only amendment necessary to be considered is that filed February 12, 1907, which strikes out all previous amendments, and alleges that Berger, well knowing that the premises were to be used for a bawdy house and for purposes of prostitution, did rent it to be used for such purposes, in violation of laws and ordinances, and that Ruby Davis, with the knowledge and concurrence of said Berger, has been so using it, and continues so to do, with the knowledge and consent of said Berger, and that, by continuing to permit her so to do, he is aiding and abetting. The court sustained the demurrer of the defendant Berger to the complaint as amended, and this is the decree appealed from.

The question, then, to be decided, is whether or not the allegations of the bill show a liability on the part of the landlord in this form of action. It is settled law that a house of ill fame, or bawdy house, is a public nuisance. Wood on Nuisances (3d Ed.) p. 49, § 29; 9 Am. & Eng. Ency. Law (2d Ed.) p. 518; Ex parte Birchfield, 52 Ala. 377. It is a misdemeanor; and any person who aids or abets in the commission of the offense is liable. While a landlord cannot be made liable for a nuisance committed by his tenant without co-operation or consent, and while, if he rents a building to be used in a certain business, which may be carried on in such way as not to be a nuisance, he cannot be made liable by the mere fact that his tenant so conducts it as to constitute a nuisance, yet if he rents a building for the express purpose of having conducted therein a business which is a nuisance per se, he is liable, and must be presumed to have intended the usual results and concomitants of that business. 1 Wood on Nuisances, p. 50, § 30; Givens v. Van Studiford, 4 Mo. App. 499, 503, 505; Id., 72 Mo. 129; Marsan v. French, 61 Tex. 173, 48 Am. Rep. 272; Ahern v. Steele, 115 N.Y. 203, 22 N.E. 193, 5 L. R. A. 449, 450 (column 2) 12 Am. St. Rep. 778; Cahn v. State, 110 Ala. 56, 59, 20 So. 380; 1 High on Injunctions (3d Ed.) § 782. Where the nuisance, though public, produces a special or particular injury to an individual, he may proceed in a court of equity for an injunction and also for damages. 2 Wood on Nuisances (3d Ed.) pp. 1201, 1202, § 819; Id. p. 1160, § 792; Whaley v. Wilson, 112 Ala. 627, 631, 20 So. 922. It has been said by this court, in defining a private nuisance, that any establishment "which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance and inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance." English v. Progress Elec. L. & M. Co., 95 Ala. 264, 10 South 134; Hundley v. Harrison et al., 123 Ala. 292, 298, 26 So. 294. In another case it is said that "when the nuisance operates to destroy health, or to diminish seriously the comfortable enjoyment of a dwelling house, it is in its nature and consequences productive of irreparable mischief, for which the law can furnish no adequate remedy." Ogletree v. McQuaggs et al., 67 Ala. 580,...