Deen v. Holderfield

• Decision Date: 11 July 1963
• Docket Number: 6 Div. 632
• Parties: , 12 A.L.R.3d 951 Sara Jackson DEEN v. Mary Ruth HOLDERFIELD.
• Court: Alabama Supreme Court

Page 314

155 So.2d 314

275 Ala. 360, 12 A.L.R.3d 951

Sara Jackson DEEN v. Mary Ruth HOLDERFIELD.

6 Div. 632.

Supreme Court of Alabama.

July 11, 1963.

Dempsey F. Pennington, Birmingham, for appellant.

R. Clifford Fulford, and Grover S. McLeod, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is the second appeal in this case. See 269 Ala. 260, 112 So.2d 448. We there held that the trial court did not err in setting aside a judgment for $7500 for the plaintiff on defendant's motion. The second trial resulted in a verdict for plaintiff for $7200 and the defendant's motion for a new trial was overruled, hence this appeal.

Mary Ruth Holderfield, the appellee and plaintiff in the court below, is the wife of Frank H. Holderfield. Sometime prior to January, 1957, Frank Holderfield executed to Mrs. John Hightower a lease of an apartment for the use of his family, located on 18th Street, Ensley, Birmingham, Alabama. After the lease was executed, the building was sold to Sara Jackson Deen, the defendant in the court below and appellant here.

The crux of this case is a provision contained in the lease of the building to Frank H. Holderfield. No question is raised as to Mrs. Deen succeeding to the rights of Mrs. John Hightower. Mrs. Holderfield did not execute the lease. The lease contained the following clause:

'3rd. It is agreed that the premises are in good and safe condition, and the landlord is hereby absolved and released from any liability or claim to the tenant or other party occupying said premises accruing from any defect in said premises, or from rain, wind, water or other cause whatsoever not attributable to the wilful act of the said landlord during the term of occupancy by said tenant.'

In the latter part of January, 1957, appellant received a complaint that the Holderfield kitchen sink was leaking, whereupon she (Mrs. Deen) and her brother undertook to repair it. In so doing, they removed a portion of the drain pipe and placed a bucket under the sink to catch the water. Because of the fact that a sink in the apartment above the Holderfields drained into the same system of pipes, this bucket was often caused to overflow, and Mrs. Holderfield had to empty the bucket. On one such occasion, while attempting to empty it, she slipped on the floor, made slippery, wet and greasy by the overflow of water, and sustained the injuries complained of.

Appellee's Count D, the sole count with which we are here concerned, alleged, in substance, that appellant negligently allowed the drain to said sink to be disconnected for a long period of time, to wit, four days, and that as a proximate consequence thereof, appellee was injured. Demurrers to this count were overruled.

Appellant interposed pleas of the general issue, contributory negligence, and the 6th plea set up the third clause of the lease (set out above) as a release of liability on the part of appellant. Demurrers to that plea were sustained.

Appellant assigns many errors, raising the questions of proximate causation, contributory negligence, excessiveness of the verdict, the sufficiency of Plea 6, the sufficiency of Count D as against demurrer, the refusal of the trial court to grant the affirmative charge, and whether or not the verdict and judgment were contrary to the law and the great weight of the preponderance of the evidence.

We have concluded that the exculpatory clause in the lease exonerates the appellant from liability to the appellee. Accordingly, we confine our discussion to that one issue.

It must be conceded that under the terms of the lease the landlord was bound to make no repairs, but when he did so voluntarily, he was, in the absence of any agreement to the contrary, liable for his negligence in making those repairs. Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453; Faucett v. Provident Mutual Life Ins. Co. of Philadelphia, 244 Ala. 308, 13 So.2d 182.

There was in the instant case, however, the above-mentioned clause, which the appellant strongly urges exonerated her from liability. The clause raised two problems; whether appellee, not having signed the lease, was bound by its terms, and whether the clause as a matter of law exonerated appellant from liability.

We have been cited to no Alabama case, nor has our research revealed one, involving the landlord and the tenant's wife or members of his family.

The general rule seems to be that in the absence of a contrary statute, the duties and liabilities of a landlord to the wife, children and other members of the tenant's family or household are the same as those between landlord and tenant. Anthony v. Dutton, 73 Ca.App. 389, 36 S.E.2d 836; Gibson v. Littlejohn, 67 Ga.App. 597, 21 S.E.2d 248. They can have no greater claim against the landlord than the tenant himself would have under like circumstances. Finley v. Williams, 45 Ga.App. 863, 166 S.E. 265.

Our case of Uhlig v. Moore, 265 Ala. 646, 93 So.2d 490, involved the nonliability of a landlord to repair, and we there said:

'* * * This rule is applicable to a subtenant and his familty, Faucett v. Provident Mutual Life Insurance Co. of Philadelphia, 244 Ala. 308, 13 So.2d 182; and the guests of a tenant or subtenant are not members of the general public, but enter the premises under the tenant's or subtenant's title, and can have no better right than that of the tenants. Hallock v. Smith, supra.' [207 Ala. 567, 93 So. 588.]

It seems to us that the instant case involving lessee's wife would be much stronger for appellant than those cited above dealing with the guest of a sublessee.

It must follow, therefore, that if, in the instant case, the tenant was bound by the exculpatory clause, his wife was bound by it also.

Appellee strongly argues to the contrary, citing Springer v. Ford, 189 Ill. 430, 59 N.E. 953, 52 L.R.A. 930; Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925, 52 L.R.A. 922; and B....