Cairnes v. Hillman Drug Co.

Citation108 So. 362,214 Ala. 545
Decision Date25 March 1926
Docket Number6 Div. 532
CourtAlabama Supreme Court

Rehearing Denied May 13, 1926

Appeal from Circuit Court, Jefferson County; R.V. Evans, Judge.

Action by the Hillman Drug Company against Thomas C. Cairnes. From a judgment for plaintiff, defendant appeals. Affirmed.

James H. Willis and Roy McCullough, both of Birmingham, for appellant.

H.C Wilkinson and J.R. McElroy, both of Birmingham, for appellee.


This is a suit by the Hillman Drug Company, a tenant, against Thomas C. Cairnes, the landlord of a storehouse used by the tenant as a drug store, for damages to the goods of plaintiff from rain caused by leaks in the roof or in the water downspout which ran from the roof through the inside instead of outside of the store. The cause was tried by a jury, they returned a verdict in favor of the plaintiff, and, from a judgment thereon by the court, this appeal is prosecuted by the defendant.

In assigning errors, it shall be sufficient to state concisely in writing in what the errors consist. The appellant assigns 25 errors in writing on the transcript. They are separately numbered from 1 to 25, both inclusive. At the heading thereof appellant states the trial court "committed manifest error to the injury of the defendant therein, and that such error consisted in this, to wit:" [Then follow the 25 errors separately assigned and numbered as indicated.] In this caption the appellant used the word "error," singular and not plural, "errors." He should have used the plural instead of the singular. However, this is a self-correcting mistake. What follows clearly evidences that appellant intended to assign 25 alleged errors separately and not 25 alleged errors jointly as one error. Supreme Court rule 1; Wilson v. McKleroy, 206 Ala. 342, 89 So. 584 (last paragraph of opinion on rehearing); Sheffield v Harris, 183 Ala. 357, 61 So. 88; Starr Piano Co. v Zavelo, 212 Ala. 369, headnote 3, 102 So. 795; Cargall v. Riley, 209 Ala. 183, headnote 1, 95 So. 821.

There are four counts in the complaint, numbered from 1 to 4, both inclusive. Counts 1 and 3 were submitted by the court to the jury, and counts 2 and 4 were eliminated by written charges given the jury by the court at the request of the defendant.

Demurrers of the defendant to counts 1 and 3 were overruled by the court. The appellant in brief insists by argument on the demurrers to count 1, and waives the ruling of the court on demurrer to count 3 by not arguing it. Birmingham News Co. v. Collier, 212 Ala. 655, headnote 1, 103 So. 839.

Count 1 alleges defendant leased this building to plaintiff to be used and occupied as a drug store, that during the lease and occupancy of it by plaintiff, the defendant voluntarily undertook to make some repairs to the roof of said building, and so improperly performed said work that the roof on said building was thereafter caused to leak, which fact was known to the defendant, and plaintiff avers that, after knowledge of such fact, the defendant negligently failed to have the leaky condition remedied, and as a proximate consequence, plaintiff's stock of goods was greatly damaged by rain leaking through the roof of said building.

The word "improperly" as and where used in this count is the equivalent of the word "negligently." The word "improperly," when uesd in connection with human conduct means "such conduct as a man of ordinary and reasonable care and prudence would not under such circumstances have been guilty of." 31 Corpus Juris, 261, headnote 23, page 260, headnote 10; Cent. of Ga. v. Johnston 106 Ca. 130, 137, 32 S.E. 78.

This count charges defendant with negligence in repairing the roof, which caused the leak, and then charges the landlord after knowledge thereof with subsequent negligence in failing to remedy it, and it charges he voluntarily undertook to make the repairs. This count states a cause of action against the defendant; and the court did not err in overruling the demurrer to it. Bains v. Dank, 199 Ala. 250, 74 So. 341.

Count 3 alleges the defendant voluntarily undertook or attempted to repair the roof on a building defendant had leased plaintiff which plaintiff was then occupying as a drug store, and that defendant was guilty of negligence in or about making such repairs, and as a proximate consequence plaintiff sustained the injury and damage set out in count 1.

The defendant pleaded general issue by consent, with leave to give in evidence any matter of defense, which, if well pleaded, would be admissible in defense and to have effect as if so pleaded, and with like leave for plaintiff to give in evidence any matter good in reply, the same to have effect as if well pleaded.

The plaintiff by written contract with the defendant leased from him a storehouse for drug store purposes from September 23, 1921, to September 30, 1924. The contract provides and contains among other things these provisions:

"It is further understood and agreed that the lessor shall not be liable for any damage which may accrue on account of any defect in said building or in said premises or from rain, wind, or other cause. *** It is further understood and agreed that the lessor reserves the right to make any repairs on or about said premises that may be deemed necessary by him during this term."

There was evidence tending to show that the building leaked some, and at the tenant's request the defendant undertook to repair the roof. It was a tin roof with gravel and tar on it. Negro laborers under the direction of defendant attempted to repair the leak, but instead of stopping it the leak was worse afterwards than before. Defendant then employed Conant to do the repair work as to this leak, and afterwards the leak was worse. After these repairs were made from time to time the leak was worse, and the goods of plaintiff in the store were damaged by rain at different times from the leaks to the amount of $3,164.45. The case was tried by the parties on the theory that damages sustained up to the time of the trial were recoverable.

The evidence of the defendant tended to show the damages to the goods from the rain at different times did not exceed $20, and that it was not due to the leak, but to the transom being left open by plaintiff during blowing rains. The defendant's evidence further tended to show that Conant was an independent contractor in doing this repair work for him, and all of the repair work was done by independent contractors without any supervision or instructions or directions from him. There was positive proof that defendant directed and supervised the negro laborers when they were attempting to repair the roof and stop the leak, and there was some testimony tending to show that Conant was a servant of the defendant in doing this work afterwards; but there was much strong evidence that he was an independent contractor and not a servant of the defendant in the performance of this repair work on the roof, and that he contracted with defendant to stop the leaks and make the roof water tight. There was evidence that the water from the roof ran through a gutter in the building. It would get clogged with tar and gravel and the store would be flooded with water. There is also evidence that Conant advised defendant to place the gutter on the outside instead of inside of the store, and in this way the leaks would be stopped, and that the defendant instructed him not to do so, that it would cost too much, and there was evidence to the contrary. There was much evidence that defendant knew that the leak was worse after Conant finished repairing it, and the leak was never stopped. The foregoing is the tendency of some of the testimony in the cause.

The defendant was examined in his own behalf. The court did not err in allowing him to testify on cross-examination that Conant, in the presence of Judge Lanier at this store when Conant was attempting to stop the leaks, did not tell him (defendant) that the downspout should be placed on the outside of the building and that he (witness) did not tell Conant not to do so, that it would cost too much. There was evidence that there was such conversation at that place by defendant and Conant. There was evidence that the leak and flooding of the store and injury to the goods were caused by the downspout being on the inside and not on the outside of the store; that tar and gravel placed on the roof would slide off into this gutter, in the store, cause it to stop up and overflow the store with water during a rain. This was competent and relevant evidence. It tended to show cause of the leak and how it could be remedied, and it tended to show that the defendant was directing and controlling Conant in the manner the leak should be stopped under his contract with him, and prevented him from taking the downspout from within the store and placing it on the outside of the building.

The court did not err in allowing defendant to be asked by the plaintiff on cross-examination these questions:

"You have suits pending against us for $2,425 worth of rent, haven't you? *** I will ask you if they didn't stop paying rent after this row came up about the rent? *** You have just got through a lawsuit with Marbery about the building, haven't you, in which complaint was made about the roof? *** Did you tell the Hillman Drug Company that the roof was in bad shape when you rented it to them? *** When you came back several months later you began to get complaints about the condition of the roof, didn't you? *** I will ask you, Mr. Cairnes, if you did not undertake, in 1922, to remedy the condition and make the roof water tight?"

This witness was the defendant; he was being cross-examined by the plaintiff when these questions were propounded to him....

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