Hart v. Coleman
| Decision Date | 15 April 1915 |
| Docket Number | 31 |
| Citation | 68 So. 315,192 Ala. 447 |
| Parties | HART v. COLEMAN. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; John C. Pugh, Judge.
Action by Mary Coleman against Sidney J. Hart. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Transferred from the Court of Appeals under section 6, Acts of 1911, p 450.
The damages are claimed because on June 20, 1913, plaintiff was occupying a house as a residence in the city of Birmingham which plaintiff had rented from defendant, including a porch or gallery, and, in consideration for plaintiff's paying money therefor, defendant agreed within a reasonable time theretofore during the month of May, and before said June 20th, to repair and put in reasonably safe condition the condition of the floor of said porch or gallery, which floor was weak or rotten, and unsafe for the use of such porch or gallery. Plaintiff avers the breach of said contract in that defendant failed within a reasonable time to put said floor in a reasonably safe condition, and as a proximate consequence of said breach, while plaintiff was using said floor in said house, said floor broke and gave way, and plaintiff suffered certain damages. The second count sufficiently appears from the opinion.
Haley & Haley, of Birmingham, for appellant.
Harsh Beddow & Fitts, of Birmingham, for appellee.
The plaintiff appellee was defendant appellant's tenant occupying, as a renter from month to month, a dwelling house to which there was a porch or gallery. The floor of the porch was so thoroughly rotten and defective, at least in part, as that it gave way under plaintiff, causing the injuries described in the complaint. She was injured June 20, 1913.
The case was submitted to the jury on the first and second counts only. The first count is ex contractu, for the alleged breach of an agreement to repair; and the second count is ex delicto, for the alleged negligent breach of a duty arising out of the mentioned agreement to repair.
According to the doctrine of Anderson v. Robinson, 182 Ala. 615, 619, 620, 62 So. 512, 47 L.R.A. (N.S.) 330, the general affirmative charge as to the second count was erroneously refused to the defendant. It was there held that the landlord is not liable in tort for injuries to the tenant, his family, or his guests resulting from the failure of the landlord to repair or his breach of an agreement or covenant to repair, unless the defect was known to the landlord, and he concealed it from the tenant. The second count affirms an express agreement between the landlord and tenant for repairs by the former of the defect which it is alleged caused the tenant's injury. Such a count states no cause of action under the mentioned authority; for the count avows a condition of knowledge, on the tenant's part, of the defect that negatives any possibility of concealment by the landlord.
We see no fault in the first count. It does not, on its face, afford any basis for the conclusion that the plaintiff's injury was in consequence of her own act, rather than because of the breach of the contract therein relied on for a recovery.
A plea of contributory negligence is, by nature, entirely inapt as a defense to a count ex contractu for the breach of a contract.
The consideration for the alleged promise of the defendant to repair is averred to have been "plaintiff's payment of rent for said house."
It appears that the defendant's promise or agreement to repair was made after the plaintiff had been defendant's renter by the month (McDevitt v. Lambert, 80 Ala. 536, 2 So. 438) for some time; she continuing in the occupancy of the dwelling after her husband's death. She testified:
There is no evidence or claim of a covenant or agreement by the landlord to repair, made at the inception of the relation between these parties.
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