Hart v. Coleman

• Decision Date: 20 December 1917
• Docket Number: 6 Div. 639
• Citation: 78 So. 201,201 Ala. 345
• Parties: HART v. COLEMAN.
• Court: Alabama Supreme Court

78 So. 201

201 Ala. 345

HART v. COLEMAN.

6 Div. 639

Supreme Court of Alabama

December 20, 1917

Rehearing Denied March 23, 1918

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Mary Coleman against Sidney J. Hart. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Anderson C.J., and McClellan and Sayre, JJ., dissenting.

Haley &amp Haley, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

GARDNER J.

When this cause was before this court on a former appeal ( Hart v. Coleman, 192 Ala. 447, 68 So. 315) it was held that the first count was not subject to the demurrer interposed thereto, but that the proof failed to show sufficient consideration for the agreement of the defendant to make the repairs which would support the cause of action. This ruling was supported upon the principle that a promise made by the landlord to repair the rented premises, made pending the tenancy, is without consideration a nudum pactum and will not support an action, as the alleged promise was made during the time in which plaintiff was already obligated and bound for the payment of the rent. The opinion recognizes the principle, however, that if the agreement to repair was made at a time when plaintiff had the legal right to terminate the relationship because of the defective conditions (the contract of rental was by the month), and was prevented from exercising that right, and was induced to continue the relationship by the promise of the landlord to repair, that this would be sufficient consideration to support the promise. In addition to the authorities cited in the former appeal, may be noted to the same effect the case of Good v. Von Hemert, 114 Minn. 393, 131 N.W. 466.

Upon the second trial of the cause plaintiff testified that the first time she told defendant she would move out if he did not fix the porch, and he promised to do so, was about two months before the accident, and that he made numerous promises to repair the same "about twice a month for two months before she was hurt." She had no contract for any definite length of time, "but was paying rent by the month." The evidence shows, therefore, a promise on the part of defendant to make the repairs in response to a threat on the part of his tenant who was renting by the month to abandon the premises at a time when the tenant had the right to give sufficient notice to terminate the relationship, and relieve herself from further liability at the expiration of such time, and the evidence was sufficient to justify a reasonable inference on the part of the jury that the relationship was continued by virtue of the promise of the landlord. We are therefore of the opinion that there was sufficient consideration to support the first count of the complaint. The only remaining question on this appeal relates to the right of plaintiff to recover damages for the personal injuries received by reason of the breach of the contract on the part of defendant to repair the porch.

The evidence for plaintiff shows that two of the three rooms of the house opened on the front porch, and that just as she was in the door, and turned to walk on the porch, the plank in the floor broke, and that her limb went through the floor, causing injuries which confined her to her bed for some time, preventing her from working as a seamstress for some three or four months, and incurring doctor's bills. The porch, at the point at which plaintiff fell, was rather high from the ground, sufficiently high that one could walk under the same in an upright position. The floor of the porch was rotten and in a bad condition, of which fact defendant had notice from plaintiff. The defendant himself testified that he "knew that the porch required repairing because he had seen it when he went to collect the rent." He insisted, however, that he made no agreement to repair.

The question of liability of the landlord to the tenant for personal injuries sustained by the latter, growing out of a breach of an express agreement on the part of the landlord to make repairs, has given rise to much discussion, and the numerous cases are in irreconcilable conflict. It may be conceded that the weight of authority from a numerical standpoint exempts the landlord from liability, as will be disclosed by an examination of the notes to the following cases: Dustin v. Curtis, 11 L.R.A. (N.S.) 504; Walsh v. Schmidt, 34 L.R.A. (N.S.) 798; Mesher v. Osborne, 48 L.R.A. (N.S.) 917; Bailey v. Kelly, L.R.A.1916D, 1220; Cameron v. Young, 12 Ann.Cas. 47; Cavalier v. Pope, 5 Ann.Cas. 713. See, also, volume 3, Shearman & Redf. on the Law of Neg. (6th Ed.) § 708, a; Thomp. on Law of Neg. vol. 1, § 1141; Thompson v. Clemens, 60 L.R.A. 580; Miles v. Janvrin, 13 L.R.A. (N.S.) 378; Hines v. Willcox, 34 L.R.A. 824; Cromwell v. Allen, 151 Ill.App. 404; Graff v. Lemp Brew. Co., 145 Mo.App. 364, 129 S.W. 1005; Haynes v. Maybury, 166 Mich. 498, 131 N.W. 1110; Marcheck v. Klute, 133 Mo.App. 280, 113 S.W. 654; Collins v. Fillingham, 129 Mo.App. 340, 108 S.W. 616; Merchants' Cotton Comp. Co. v. Miller, 135 Tenn. 187, 186 S.W. 87, L.R.A.1916F, 1137; Kurtz v. Pauly, 158 Wis. 534, 149 N.W. 143; Keegan v. Heilman Brew. Co., 129 Minn. 496, 152 N.W. 877, L.R.A.1916F, 1149; Pinkerton v. Slocomb, 126 Md. 665, 95 A. 965.

The three cases last named permit recovery by the tenant where the landlord has breached his agreement to repair, and there had been on his part a negligent failure to make them. A discussion however, of the numerous cases upon this question would extend this opinion to undue length, and we merely make reference to them, therefore, in a general way. While several of the cases cited in this opinion, as well as in the notes referred to, sustain the tenant's right of action for personal injuries consequent upon the breach of the landlord of his express agreement to repair, numerous other cases deny recovery either in an action for the breach of the agreement, or in an action of tort denying a recovery in an action ex contractu upon the ground that such damages for personal injuries were not in the contemplation of the parties, and were too remote, and further holding that to permit a recovery for such damages, based on a contract simply because it is in form an action of tort, will be making a distinction that could not be justified by reason or authority, and thus denying a recovery in any form of action. Of these cases the Supreme Court of Tennessee in Merchants' Cot. Comp. Co. v. Miller, supra, said:

"More may be said of the logical exactness of this doctrine than of its inherent justice."

Judge Thompson in his work on Negligence, vol. 1, § 1141, in rather caustic language, criticizes the holding of these cases, and in Sherman & Redf. on Neg., supra, it is said the law on the subject is in a state of transition, concluding the observations upon this question in the following language:

"In some of the earlier cases holding that an action of tort did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But, it is believed, that restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as renders the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom after a reasonable time for making the premises safe, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable in an action of tort therefor. In those jurisdictions where damages for personal injuries are held recoverable against the landlord for injuries caused by the want of repairs he had agreed to make, and of the necessity of which he had been notified, it is said that the nature of the covenant is such as naturally to create a reasonable anticipation that the neglect to perform it will probably be the cause of personal injuries being inflicted on the tenant, his guests, family and servants; that the covenant gives rise to a corresponding duty either to exercise such supervision as may be necessary, or to act with requisite promptness on notice, as the case may require, and that an action of tort is maintainable for the injury consequent on the neglect to perform it; the covenant being set up as matter of inducement."

Mr. Tiffany in his work on Landlord and Tenant (vol. 1, § 87) agrees with the view which exempts the landlord from liability in such cases, but, on page 596 calls attention to the fact that numerous cases have held the landlord liable for injuries to the tenant's property on account of his breach of covenant to repair, and he adds:

"No distinction can, it is conceived, be taken between the case of injury to the person of the tenant or one of his family, and injury to his chattels on the premises, and these cases may be considered as equivalent to decisions that he would be liable for such personal injuries as a result

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