Bains v. Dank

Decision Date08 February 1917
Docket Number6 Div. 399
Citation74 So. 341,199 Ala. 250
PartiesBAINS v. DANK.
CourtAlabama Supreme Court

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Sarah Dank against H.L. Bains. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Reversed and remanded.

In the first count of the complaint the plaintiff (appellee here) sought recovery of damages for injury to her personal property, and also to her person, occasioned by a rainfall through the roof of the house she occupied in the city of Birmingham. The count alleged that the defendant was the agent in charge of said house and in having it repaired he "negligently allowed the said repair work to be so negligently done that said house, or a portion thereof, was not covered, and as a proximate consequence thereof the rain fell upon and damaged the plaintiff's personal property," etc.

In the second count it is alleged that the defendant "negligently failed to promptly send out paper or other covering for said house, as it was his duty to do, and as a proximate consequence thereof the rain fell upon and injured her personal property," etc.

By way of special pleas the defendant set up that he was the agent for one McGhee, owner of the property referred to in the complaint, and that as such agent, and with the consent and authority of the owner, he agreed at plaintiff's request to put a new roof on the house and contracted with the firm of Bates & Bumpus for the work. The said firm was generally reputed to be reliable and competent, and, beyond supplying the necessary material, defendant had nothing further to do with the job; but the contractors were to turn the completed job over to him as agent for the owner, and said firm was responsible as independent contractors for any negligence done or permitted while the repair work was being prosecuted. To these pleas demurrers were interposed to each count separately and severally by the plaintiff, and, the demurrers being overruled, issue was joined on the plea of the general issue and the special pleas.

The evidence was without dispute that the defendant was requested by plaintiff to have the new roof put on the house, and that further than contracting with said firm for the job and furnishing the necessary material, defendant had nothing more to do with it. He gave the order for the material to be sent to the premises on June 26, 1914, and the work was begun on the morning of July 2d thereafter. The reliability of the firm from which said material was ordered was not questioned at the trial, and likewise that the contractors were competent and reliable was without dispute. When the work was begun the sheeting needed was already on the ground, but the roofing material had not then arrived, and the evidence showed that while the roof was partly uncovered during the progress of the work a heavy rain fell, damaging plaintiff's property, and also causing personal injuries. It was without dispute, however, that the roofing material had arrived and was being put on before the rain fell, and it was also undisputed that the defendant did not know when the contractors were to begin the repair work nor that they had begun it. The record shows that a separate suit against the contractors, Bates & Bumpus, is now pending.

The affirmative charge requested by the defendant as to each count of the complaint was refused, and motion for a new trial denied. Verdict and judgment for plaintiff, and defendant appeals.

James A. Mitchell, of Birmingham, for appellant.

Frank S. Andress, of Birmingham, for appellee.


It is a well-recognized rule in this state that, in the absence of any agreement between the parties, the landlord is under no obligation to keep the demised premises in repair, and that the rule of caveat emptor applies in regard to leases. Morgan v. Sheppard, 156 Ala. 403, 47 So. 147; Hart v. Coleman, 192 Ala. 447, 68 So. 315; Anderson v. Robinson, 182 Ala. 615, 62 So. 512, 47 L.R.A.(N.S.) 330, Ann.Cas.1915D, 829.

In the present case no agreement on the part of the landlord to keep the premises in repair is shown to have existed, and none was set up in the pleadings in the cause. The above-mentioned rule is therefore applicable here, and the landlord was under no obligation to make the repairs. Notwithstanding this however, if he voluntarily, at the tenant's request undertakes to make the repairs, he is liable for any injuries which may result to the latter from the negligent manner in which the work is done. 24 Cyc. 116; 1 Tiffany, Landlord &amp Tenant, p. 608.

The general rule that the owner or proprietor is not liable for the negligent acts of an independent contractor is well established in this state. Chattahoochee & G.R.R. v Behrman, 136...

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17 cases
  • Gulf Electric Co. v. Fried
    • United States
    • Supreme Court of Alabama
    • 6 Diciembre 1928
    ...... no nuisance," nor latent defects. These cases have been. followed in Hart v. Coleman, 192 Ala. 447, 68 So. 315, and in Bains v. Dank, 199 Ala. 252, 74 So. 341,. where the landlord undertook to make repairs may be held. liable for injuries resulting from the negligent ......
  • Prudential Ins. Co. of America v. Zeidler, 6 Div. 935
    • United States
    • Supreme Court of Alabama
    • 19 Noviembre 1936
    ......252, 107 So. 218. And, in the. absence of an agreement between the parties, a landlord need. not keep the demised premises in repair. Bains v. Dank, 199 Ala. 250, 74 So. 341. . . In. Arlington Realty Co. et al. v. Lawson, 228 Ala. 214,. 215, 153 So. 425, 426, where the ......
  • W.L. Shepherd Lumber Co. v. Atlantic Coast Line R. Co.
    • United States
    • Supreme Court of Alabama
    • 24 Marzo 1927
    ...... injuries resulting from negligence of himself or servants in. making such repairs. Bains v. Dank, 199 Ala. 250, 74. So. 341; 1 Tiffany on Landlord and Tenant, pp. 608, 609, and. authorities supra.". . . In Ex. parte L. & ......
  • Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 6 Div. 993.
    • United States
    • Supreme Court of Alabama
    • 11 Marzo 1943
    ...... render the premises dangerous to life or limb of those. rightfully occupying the premises. Bains v. Dank,. 199 Ala. 250, 74 So. 341; Cairnes v. Hillman Drug. Co., 214 Ala. 545, 108 So. 362; Green v. Jefferson. County Bldg. & Loan Ass'n, 241 ......
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