Anderson v. Robinson

Decision Date21 May 1913
Citation62 So. 512,182 Ala. 615
PartiesANDERSON v. ROBINSON.
CourtAlabama Supreme Court

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by Margaret Anderson against John J. Robinson for damages for personal injuries on account of a defect in the flooring of a store rented by defendant to plaintiff's husband. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts made by the pleadings are: That defendant had rented to the husband of plaintiff a certain store in the city for the year beginning October 1, 1911, and ending October 1, 1912 and that during that year plaintiff was employed by her husband in the sale of goods in said store. The lease was entered into between plaintiff's husband and defendant and that a portion of said lease provided that the said Robinson should repair all the rotten planks in said flooring, and that it became and was the duty of the defendant Robinson to provide a safe and suitable flooring in said storehouse in the flooring thereof, and instead of having said flooring repaired, over which it was necessary that plaintiff should pass in conducting the business affairs of her husband, defendant permitted said flooring to have a rotten plank in said flooring (here follows description of location of the plank), and that the flooring was defective and was discovered before the injury hereinafter mentioned was received, and that said defects existed before said lease was signed, and was drawn to the attention of defendant at the time said lease was signed, and was drawn again and again to the attention of defendant before said plaintiff was injured, and defendant was requested and notified to have said flooring repaired, but that he failed and neglected to do so. That it became necessary for plaintiff in the discharge of her duties about said store to pass over the said rotten plank, and that, while she was exercising due and proper care in passing over said rotten plank while waiting on her husband's customers in said store on a certain day without negligence or fault or her part, the said flooring in said store broke with her, and here follows catalogue of her injuries and damages. Count 2 alleges the same thing, except that the rotten plank was not discovered by plaintiff before the injuries complained of were received. Count 3 is a short rendering of the same state of facts as shown in count 1. Count 4, after averring the lease as averred in count 1 avers that plaintiff was employed and fell through the floor as described in count 1 on account of the floor yielding on account of its bad condition, and it is alleged that it was the duty and obligation of the defendant to keep the said building in good condition and habitable for the tenants servants, or guests entering upon said premises with the permission of said tenant, and that the vices and defects in the floor could have been discovered by an architect or skilled builder, and were not due to any fault of plaintiff who was in the discharge of her duties, and had no means of observing the condition of the floor. The plaintiff was ignorant of the dangerous condition, and without fault or negligence on her part she fell through the defective flooring, and was injured as set out in count 1. Count 5 alleges that on July 12, 1911, a lease was entered into between C.W. Anderson, husband of plaintiff, and one John J. Robinson, defendant, for the rent of a certain storehouse in the city of Montgomery for the year from October 1, 1911, to October 1, 1912, and that plaintiff was employed by her husband in the sale of merchandise in said store, and without fault on her part plaintiff was injured by falling through a defective plank in said flooring; that said defective plank was in such defective and unsafe condition at the time of the leasing and taking possession of the same by the husband of plaintiff, and that defendant knew of this condition, and notwithstanding his knowledge fraudulently concealed it, and that said defect was not obvious, and could not be discovered by the exercise of ordinary care, and in the performance of her daily duties in the store the said defective plank was directly in her path, and she was required and compelled to pass over said defective plank, and that on or about July 3, 1912, while she was exercising ordinary care and performing her regular store duties, and without fault on her part, the said defective plank in said flooring gave way under her, and she was precipitated through said flooring, and as a proximate consequence suffered the injuries and damages alleged in the first count of the complaint. Count 6 is practically the same as count 1. Count 7 is the same as count 1, except that it alleges sufficient facts which, if followed, would have disclosed to defendant knowledge of the defective condition of the plank in the floor, etc. Count 8 is practically the same as count 7. Count 9 is very similar to count 5. The demurrers raise the question discussed in the opinion and other questions as to the nature of damages not necessary to be here set out.

Warren S. Reese, of Montgomery, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, for appellee.

ANDERSON J.

In the case of Morgan v. Sheppard, 156 Ala. 403, 47...

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