Housing Authority of Birmingham Dist. v. Morris

• Decision Date: 03 June 1943
• Docket Number: 6 Div. 77.
• Citation: 14 So.2d 527,244 Ala. 557
• Parties: HOUSING AUTHORITY OF BIRMINGHAM DIST. v. MORRIS.
• Court: Alabama Supreme Court

14 So.2d 527

244 Ala. 557

HOUSING AUTHORITY OF BIRMINGHAM DIST. v. MORRIS.

6 Div. 77.

Supreme Court of Alabama

June 3, 1943

Rehearing Denied June 30, 1943.

Coleman, Spain, Stewart & Davies, of Birmingham, for appellant.

Lange Simpson, Brantley & Robinson, of Birmingham, for appellee.

BROWN, Justice.

Trespass on the case by the tenant against the landlord claiming damages for personal injuries received by the plaintiff on November 12, 1941, while using the commode installed in the bathroom of the apartment leased to the plaintiff and his wife by defendant, for family use, and while in the occupancy thereof.

The complaint, as it went to the jury, consists of three counts. Count A ascribes plaintiff's injury and damage to the negligence of the agents or servants of the defendant while acting within the scope of their employment in the maintenance of the water system supplying plaintiff's apartment with water, which defendant undertook and agreed to do, which, as the count avers, "Said pipes and water system were in the custody and under the control of the defendant and were retained by defendant in its own possession, custody and control at said time for supplying of water to plaintiff" and all other tenants of the defendant for the common benefit of said tenants in that respect, "in consequence of which plaintiff was badly scalded and burned."

Count B which adopts the inducement of Count A, with additional averments showing that there was attached to and a part of said water supply system in each of said units of said apartment house, a gas heater designed to supply hot water for family use, ascribes the plaintiff's injury to the negligence of defendant's servants in negligently maintaining said water-heaters, as a proximate consequence of which plaintiff was scalded and burned.

Count C ascribes plaintiff's injuries and damage to the negligence of the defendant's agents or servants in maintaining the hot water tank in plaintiff's apartment as a part of the water system designed by the defendant in supplying water to said apartment for family use.

After demurrer overruled to the complaint, the defendant pleaded to each of said counts, as the general issue, "The allegations of said counts are untrue." This plea seems to have been treated by the parties and the trial court as a plea of "Not guilty." See Code 1940, T. 7, § 225. The defendant pleaded specially, pleas 3, 4, 5 and 6-contributory negligence-and special plea 2 setting up an exculpating stipulation in the lease, purporting to exculpate and save the landlord from liability for damages to the person or property of the tenant, his visitors or licensees from any cause whatsoever.

Special pleas 2, 3, 4 and 6 were eliminated by demurrer, sustained and the case went to the jury on said Counts A, B and C, the plea denying the allegations of the complaint, and plea 5 charging that plaintiff proximately contributed to his injury and damage by his own negligence, in substance that plaintiff with knowledge that the thermostat-the safety device on the hot water tank-had been removed or blocked off by defendant, turned on the gas and "negligently allowed said heater in his apartment to burn for an unreasonable length of time and to become overheated and to generate steam and to cause said steam to back up into the commode in his apartment."

In the absence of an averment in the counts of the complaint that plaintiff received his injuries while using the commode in his apartment, said counts are defective in failing to show causal connection between the defendant's negligence and plaintiff's injury. Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am.St.Rep. 179.

This defect was not, however, pointed out by specific ground of the demurrer, as required by the statute, and avails the appellant nothing. Code 1940, T. 7, § 236; Deslandes v. Scales, 187 Ala. 25, 65 So. 393.

Each of said counts aver in substance and legal effect that the defendant engaged to supply plaintiff's apartment with water and retained possession and control of the water system in said apartment house to that end, and its servants, agents or employees while acting within the scope of their employment negligently caused hotwater to be propelled through the cold water pipes into the commode in plaintiff's apartment, and as a proximate consequence plaintiff received his said injuries-and was not subject to the grounds stated in the demurrer. Prudential Ins. Company of America v. Zeidler et al., 233 Ala. 328, 171 So. 634; Wardman v. Hanlon, 52 App.D.C. 14, 280 F. 988, 26 A.L.R. 1249.

Defendant's special pleas of contributory negligence 3, 4 and 6, impute to plaintiff the negligence of the members of his family without averring he had knowledge of their act in turning on and lighting the gas under the hotwater boiler in plaintiff's apartment, and that to allow the water in the boiler to become overheated would force it to back its way through the cold water pipes into the commode and render said commode dangerous for the uses it was designed to serve.

The demurrer to these pleas pointed out those defects and was properly sustained.

The defendant's plea 2 is in the following language: "2. Defendant avers that plaintiff was occupying said apartment under a written lease. Defendant further avers that in said lease it was expressly provided as follows: 'Neither the landlord nor any of its representatives or employes shall be liable for any damage to person or property of the tenant, or any member of tenant's family, or any of the tenant's visitors or licensees for loss from theft, or from any cause whatsoever." The averments of the plea do not disclose the background of the clause, except as it may be gathered from the averments of the complaint, showing a continuing active duty on the defendant to maintain and keep in repair the elements constituting the water system in said apartment.

The demurrer challenges the sufficiency of the plea on the ground that the defendant cannot exculpate itself from liability for its own negligence by stipulation in the lease, and this is appellee's contention.

The appellant, on the other hand, contends that such stipulation is valid and within the contracting powers of the defendant.

These contentions present the controlling questions in this case, which are not without difficulty, and bring forward the nature, purpose, powers and authorities of the defendant corporation, and the legislation which brought it into being.

The defendant was incorporated, as its name and activities clearly indicate, under the "Housing Authority Law" approved February 8, 1935, Acts 1935, pp. 126, 143, carried forward in the Code of 1940, with amendments, as Tit. 25, Chapter 2, §§ 5 to 30, inclusive.

The background for the enactment of the law is stated in Chapter 2 of the Act of 1935, p. 126, Code 1940, T. 25, § 5, towit: "Finding and declaration of necessity.-It is hereby declared that unsanitary or unsafe dwelling and public school accommodations exist in various cities of the state and that such unsafe or unsanitary conditions arise from overcrowding and concentration of population, the obsolete and poor condition of the buildings, improper planning, excessive land coverage, lack of proper light, air and space, unsanitary design and arrangement, lack of proper facilities, and the existence of conditions which endanger life or property by fire and other causes; that in all such cities persons of low income are forced to reside in unsanitary or unsafe dwelling accommodations; that in various cities of the state there is a lack of safe or sanitary dwelling and public school accommodations available to all the inhabitants thereof and that consequently persons of low income are forced to occupy overcrowded and congested dwelling accommodations; that these conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the citizens of the state and impair economic values; that the aforesaid conditions also exist in certain areas surrounding such cities; that these conditions cannot be remedied by the ordinary operations or private enterprises; that the clearance, replanning and reconstruction of the areas in which unsanitary or unsafe housing conditions exist and the providing of safe, sanitary and uncongested dwelling accommodations at such rentals that persons who now live in unsafe or unsanitary or congested dwelling accommodations can afford to live in safe, sanitary and uncongested dwelling accommodations, are public uses and purposes for which public money may be spent and private property acquired; that it is in the public interest that work on such projects be instituted as soon as possible in order to relieve unemployment which now constitutes an emergency; and the necessity in the public interest for the provision hereinafter enacted, is hereby declared as a matter of legislative determination." (Italics supplied.)

In the definition of terms is the following: "Section 3. * * * (1) 'Authority' or 'housing authority' shall mean a public body organized as a body corporate and politic in accordance with the provisions of this Act for the purposes, with the powers and subject to the restrictions hereinafter set forth. * * *

'Housing Project' shall include all real and personal property buildings and improvements, stores, offices, public school buildings, lands for farming and gardening, and community facilities acquired or constructed or to be acquired or constructed pursuant to a single plan of undertaking (a) to demolish, clear, remove, alter or repair unsanitary or unsafe housing and/or (b) to provide dwelling accomodations [accommodations] at rentals within the...