Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 6 Div. 993.

• Court: Supreme Court of Alabama
• Writing for the Court: BOULDIN, Justice.
• Citation: 13 So.2d 182,244 Ala. 308
• Parties: FAUCETT v. PROVIDENT MUT. LIFE INS. CO. OF PHILADELPHIA.
• Docket Number: 6 Div. 993.
• Decision Date: 11 March 1943

13 So.2d 182

244 Ala. 308

FAUCETT
v.
PROVIDENT MUT. LIFE INS. CO. OF PHILADELPHIA.

6 Div. 993.

Supreme Court of Alabama

March 11, 1943

Rehearing Denied May 13, 1943. [13 So.2d 183]

F. R. Ingram and J. M. Breckenridge, both of Birmingham, for appellant.

[244 Ala. 309] Lange, Simpson, Brantley & Robinson and Oliver W. Brantley, all of Birmingham, for appellee.

BOULDIN, Justice.

Action under the homicide act to recover damages for death by wrongful act. Demurrers having been sustained to the several counts of the complaint as amended, plaintiff, because of such adverse rulings, took a nonsuit and appeals. Plaintiff's intestate is alleged to have come to her death from injuries received March 29, 1940, from the falling of overhead plaster in the hallway of the residence occupied by her at the time. The alleged negligence or wrongful acts of defendant proximately causing the fatal injury, so far as here to be reviewed, are presented in counts A, B, C, D, E, F of the complaint. These counts [244 Ala. 310] were evidently intended to present the full case relied upon for recovery that the law of the case could be fully settled on demurrers to the complaint.

Counts A and C present the same theory of the case, count C being fuller and more complete in its averments.

Count C may be summarized thus: Defendant negligently leased a building described as an apartment house to Arthur [13 So.2d 184] and Roderick Cole as a residence under written lease made Exhibit A to each count of the complaint, knowing that the overhead plastering was defective and dangerous to human life or limb; that the husband of the intestate, by oral agreement, subleased a part of the building as a residence for himself and wife; that the defect in the plastering was latent, unknown to the tenant, sub-tenant, or plaintiff's intestate, and not discoverable by ordinary care.

The lease contained the following covenant on the part of the lessee: "not to assign this lease, nor underlease, nor let said premises or any part or interest therein without the written consent of the Lessor hereon endorsed."

No such written consent is averred. By way of avoidance of non-compliance with the above stipulation, it is averred: "The plaintiff further alleges that said written lease attached hereto and made a part hereof was prepared by the defendant its servant, agent or employees while acting within the line and scope of his or their employment as such, that the provisions concerning sub-leasing said premises were written in very small type and none of the terms of said lease were called to the attention of, or read to, said Arthur Cole or Roderick Cole, that they had no actual knowledge of the terms or conditions of said lease and did not read the same, that said lease was not of record in the Probate Office of Jefferson County, Alabama, that Plaintiff's intestate had no knowledge of the said written lease or the terms thereof, that plaintiff's intestate at no time had knowledge of the terms, and was not a party to said oral agreement between her husband, Ed Yarworth, and Arthur Cole and Roderick Cole; that Defendant, its agent, servant or employees while acting within the line and scope of his or their authority as such, was informed at the time of the execution of said written lease by Arthur Cole that he would probably subrent a part of said premises; to which said defendant or its agent, servant or employees, while so acting, never objected; that the Defendant, its agent, servant or employees while acting within the line and scope of his or their authority was informed that said Ed Yarworth and Plaintiff's intestate were living on said premises in to-wit: The month of November, 1939, and had knowledge from to-wit: The month of November, 1939, to the date of the falling of said plaster, that said Ed. Yarworth was occupying said premises under an agreement with Arthur Cole and Roderick Cole and did accept rents on said premises from to-wit: The month of November, 1939, until to-wit: The First day of April, 1940, from Arthur Cole and Roderick Cole knowing that Ed Yarworth contributed to the monies which were paid to the defendant as rents on said premises during said time."

The lease expressly declared no obligation on the lessor to repair and negatived any warranty of the fitness of the property for the use for which it was leased, or liability for damage from defects in the premises. The monthly rental was $17.50.

For breach of any of the covenants or conditions in the lease, the lessor retained the right to declare a forfeiture, at his option, etc.

Notwithstanding the lessee takes the property as it is, with no duty on the lessor to repair, the lessor is under duty to give notice of latent defects, known to him to be dangerous to occupants, and which were not reasonably discoverable by the lessee. Leasing the property, putting the lessee in a position of concealed peril, without giving notice thereof, is a breach of duty, negligence which will...