Avon-Avalon, Inc. v. Collins, AVON-AVALO

• Decision Date: 06 May 1994
• Docket Number: AVON-AVALO,INC
• Parties: , et al. v. Barbara A. COLLINS, as administratrix of the Estate of Larry Collins, deceased., et al. v. Willie J. FOSTER, as administrator of the Estate of Brenda Perdue, deceased. 1921972, 1921973.
• Court: Alabama Supreme Court

Page 570

643 So.2d 570

AVON-AVALON, INC., et al. v. Barbara A. COLLINS, as administratrix of the Estate of Larry Collins, deceased.

AVON-AVALON, INC., et al. v. Willie J. FOSTER, as administrator of the Estate of Brenda Perdue, deceased.

1921972, 1921973.

Supreme Court of Alabama.

May 6, 1994.

Rehearing Denied June 24, 1994.

Sterling G. Culpepper, Jr., Charles M. Crook and Donald R. Jones, Jr. of Balch & Bingham, Montgomery, for appellants.

Delores R. Boyd, Tyrone C. Means of Thomas, Means & Gillis, P.C., and Jere L. Beasley and J. Greg Allen of Beasley, Wilson, Allen, Main & Crow, Montgomery, for appellee.

STEAGALL, Justice.

Willie J. Foster, as administrator of the estate of Brenda Perdue, filed a wrongful death action against Avon-Avalon, Inc., Alabama Gas Corporation, Robert Leavall, and Leavall Banking Company, Inc. (hereinafter "Leavall Company"). One month later, Barbara A. Collins, as administratrix of the estate of Larry Collins, sued the same defendants for the wrongful death of Larry Collins. The plaintiffs alleged that Brenda Perdue and Larry Collins had died from carbon monoxide poisoning caused by a faulty gas heater and ventilation pipe in their apartment; Alabama Gas manufactured the pipe and installed it in their apartment, which Avon-Avalon owned and which the Leavall Company managed. The trial court granted the defendants' motion to consolidate the two cases for trial. The jury returned verdicts against the defendants jointly and severally, awarding $400,000 in damages to each plaintiff. The trial court entered judgments on those verdicts. Avon-Avalon and the Leavall Company have appealed from both judgments; those parties are referred to in this opinion as "the defendants." ¹

"Upon review of a jury verdict, we presume that the verdict was correct, and this presumption is strengthened by the trial court's denial of a motion for a new trial." Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988). We will not overturn a judgment based on a jury verdict unless the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust. Alpine Bay Resorts.

The record shows that Brenda Perdue and Larry Collins moved into Unit 402 Underwood at Avon Court Apartments on December 6, 1992. On January 14, 1993, Perdue and Collins were found dead in that apartment; they had died from carbon monoxide poisoning. The lethal fumes had escaped from a cracked vent from a space heater that was connected to the floor of the living room. The gas heater had a ventilation system consisting of "cement asbestos" pipes called "transite vents," and the carbon monoxide that killed Perdue and Collins had leaked from a two-inch-wide crack in one of the transite vents. Experts for the plaintiffs testified at trial that the crack in the transite pipe had existed as early as 1979 and that the pipe had been improperly repaired. Expert testimony also established that the crack probably occurred because the transite pipes were inadequately supported and the vent system was improperly installed.

Vera M. Owens, a friend of Collins and Perdue, testified that she had smelled leaking gas in Unit 402 on four occasions when she had visited the apartment during the month that the two lived there. She testified that, during a mid-morning visit to Unit 402 on December 23, 1992, she noticed an unusually strong gas odor and asked Perdue whether she had called anyone to inspect regarding the problem. Owens stated that she noticed the smell again when she visited Perdue on December 26 and again asked Perdue whether she had called her landlord to report the problem. Over objection, Owens then testified that Perdue picked up the telephone, in her presence, dialed a number, and asked to speak to "Mrs. Henry." Owens stated that Perdue told the person on the other end of line that the odor of gas was "still" in the apartment and asked to have someone come and take care of the problem. Owens said that she visited Perdue again on December 31 and again smelled the odor of gas, and she said she urged Perdue to give her apartment manager a second call. Again over objection, Owens testified that during that visit Perdue dialed a number in her presence, asked to speak to Mrs. Henry, and then said into the telephone that the odor was still in the apartment and that it definitely was not the odor of paint. Mrs. Willie Mae Henry, an employee of the Leavall Company, the manager of Unit 402, testified at trial that she was responsible for receiving and processing tenants' complaints, but she denied ever having received any calls from Perdue.

We emphasize that, generally, "a landlord is not liable in tort for injuries to his tenants that are caused by a defect in the leased premises, unless the injury-causing defect existed at the time of the letting, was known to the landlord, and was concealed from the tenant." Johnson v. Passmore, 581 So.2d 830, 831 (Ala.1991). The defendants argue that Owens's testimony concerning Perdue's December 26 and December 31 telephone calls to the Leavall Company is the only evidence of notice to the landlord and that that testimony was inadmissible because, the defendants say, the telephone calls were not properly authenticated.

In order to introduce evidence of a telephone conversation to establish the content of the conversation, the identity of the speaker must be satisfactorily established. Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975). C. Gamble, McElroy's Alabama Evidence, § 329.01 (4th ed. 1991), sets out the following means of authentication:

"A telephone message, purporting to come from a particular person, is sufficiently authenticated as that of a particular person, where the witness-hearer testifies that he knows that person's voice and recognized the voice heard as that of the alleged person....

"Where the witness has himself called the telephone number of a specified person or business concern as listed in the telephone directory, and the person answering says that he is the person called for, or that he represents the business concern, the identity of the person answering and also his authority to represent the business concern is sufficiently authenticated, even though the caller does not recognize the voice of the person answering the call."

In this case, the record shows that Owens never heard the voice of the individual Perdue spoke with over the telephone and did not even see the number that Perdue dialed. Owens testified that she could describe the conversation only from what she heard Perdue say into the telephone; accordingly, the telephone call was not authenticated at trial.

The plaintiffs argue that the telephone calls fall under the "notice" exception of the hearsay rule and, thus, did not need to be authenticated. The "notice" exception is as follows:

"If it is material to prove that a person at a specified time had been put on notice about a matter, or entertained a specified belief, acted in good or bad faith, had a specified motive to do or not to do an act or to do an act with a specified motive, or was mentally deranged, proof that a statement was made to him prior to the time in question which was reasonably calculated to create, and which is offered for the purpose of showing, notice, belief, good or bad faith, motive or mental derangement is not violative of the hearsay rule."

C. Gamble, McElroy's Alabama Evidence, § 273.02 (4th ed. 1991).

The defendants argue that this case...