Bains v. Dank, 6 Div. 399

• Court: Supreme Court of Alabama
• Writing for the Court: GARDNER, J.
• Citation: 74 So. 341,199 Ala. 250
• Docket Number: 6 Div. 399
• Decision Date: 08 February 1917
• Parties: BAINS v. DANK.

74 So. 341

199 Ala. 250

BAINS
v.
DANK.

6 Div. 399

Supreme Court of Alabama

February 8, 1917

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...