Brent v. Baldwin

• Decision Date: 21 April 1909
• Citation: 160 Ala. 635,49 So. 343
• Parties: BRENT v. BALDWIN.
• Court: Alabama Supreme Court

49 So. 343

160 Ala. 635

BRENT v. BALDWIN.

Supreme Court of Alabama

April 21, 1909

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by J. F. Baldwin against Rosella K. Brent. From a judgment for plaintiff, defendant appeals. Affirmed.

The trial was had on three counts of the complaint; the second the third, and the fifth as amended. In the second count the negligence averred is that the defendant so negligently built, constructed, or maintained her building that the same was unsafe and liable or likely to fall. The negligence averred in the third count is that said building was so negligently constructed that it was liable to fall, and that the defendant, with knowledge of such defective condition allowed it to remain in such condition. The negligence of the fifth count is sufficiently stated in the opinion. The pleas are sufficiently discussed in the opinion. The question propounded to Breeding is as follows: "State whether, in your opinion, it was a safe construction to rebuild onto the walls of that building, where a fire had occurred, without tearing the wall down to the ground." The tendency of the evidence was to show that a part of the east wall of the burned building had been used in its reconstruction after the building had been practically destroyed by fire, and the objection interposed was because the east wall of the building did not fall until after the collapse of the rear wall, and the court could not say as a matter of law that the unsafe construction of the east wall was the cause of the falling.

The following charges were refused to the defendant: (2) Affirmative charge as to the second count. (3) Affirmative charge as to the third count. (4) Affirmative charge as to the fifth count. (5) "If the jury believe from the evidence that the defendant was not negligent in building constructing, and maintaining the building described in the complaint, but exercised ordinary care in regard to the same then your verdict must be for the defendant." (6) "Unless the jury believe from the evidence that defects in the walls of the building described in the complaint were the cause of the collapse of the said building, they cannot consider the fact that said walls were not built in accordance with the building laws of the city of Birmingham, in determining whether or not defendant was guilty of negligence in the construction of said building." (7) "If the jury believe from the evidence that the defendant exercised ordinary care and prudence in the selection of an architect and contractor to rebuild her building when it was burned down, and there was no apparent defect in said building, and defendant had no knowledge that said building was weak, defective, and unsafe, then she was not guilty of negligence in building, constructing, or maintaining said building, and was not liable for the falling in of said building, and your verdict must be for the defendant."

R. H. Thatch, for appellant.

Cabaniss & Bowie, for appellee.

DOWDELL C.J.

The fifth count of the complaint, as amended, was not subject to the demurrer interposed. As amended, the count charged negligence as follows: "Plaintiff avers that the damages sustained by him as aforesaid were proximately caused by the negligence of the defendant in this: The defendant, or her duly authorized agent, who had control of said building, had knowledge that said building was weak and poorly constructed, and incapable of standing up under a heavy load, and negligently rented said building for warehouse purposes, knowing that the same was unfitted for such purposes, and that as a proximate result of the use of the building for such purposes it was liable to fall. And plaintiff avers that as a proximate result of the use of said building by the tenants of defendant, to whom it was rented as aforesaid, for such warehouse purposes, said building fell and damaged the plaintiff as aforesaid." The objection taken on the demurrer is the failure of the complaint to negative negligence on the part of defendant's tenants as the proximate cause of the injury. This was defensive matter, available to the defendant under proper plea, and not necessary to the sufficiency of a complaint charging injury to defendant's negligence.

The second assignment of error on the record is as follows "The trial court erred in sustaining plaintiff's demurrer to the fourth, fifth, and sixth of defendant's pleas." The appellant can take nothing by this assignment, if the demurrer was properly sustained as to any one of said pleas. It is a single assignment, and cannot be good in part and bad in part, but to be supported it must be good in whole. Western Ry. of Ala. v. Arnett, 137 Ala. 425, 34 So. 997. The fourth plea, as a plea of contributory negligence, is bad for indefiniteness and uncertainty. The averment that "the plaintiff failed to take such precautionary measures to protect himself against injury as a reasonably prudent man would have taken under the like or similar circumstances" is but the statement of a conclusion of the pleader. It does not state as a fact what precautionary measures, if any existed, that the plaintiff as a reasonably prudent man might have taken to avoid the injury. For aught that appears to the contrary there was nothing that plaintiff could have done to protect himself against injury. If...