Jones v. Tennessee Land Co.

• Decision Date: 18 February 1937
• Docket Number: 6 Div. 934
• Citation: 234 Ala. 25,173 So. 233
• Parties: JONES v. TENNESSEE LAND CO.
• Court: Alabama Supreme Court

173 So. 233

234 Ala. 25

JONES v. TENNESSEE LAND CO.

6 Div. 934

Supreme Court of Alabama

February 18, 1937

Rehearing Denied March 25, 1937

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Lula Jones against the Tennessee Land Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Harsh Harsh & Hare and John W. Altman, all of Birmingham, for appellant.

Benners Burr, McKamy & Forman, of Birmingham, for appellee.

THOMAS Justice.

The suit was for damages.

The judgment was for the defendant--the trial court giving the general charge for the defendant.

Important questions presented for decision are: The action of the court on the pleadings, rulings on evidence, and the giving of the general affirmative charge for the defendant.

The case was tried on counts 4, 7, and 1-C; counts 4 and 7 claiming damages for negligence causing injury to the invitee of defendant, and count 1-C averring a latent defect known to the defendant at the time of letting and wrongfully concealed from the plaintiff and the tenant, and that the plaintiff was on said premises by invitation of the tenant.

The plaintiff contended that the defendant was liable on four theories:

"(1) Ex contractu--based on an oral contract between the defendant and the tenants of the house to repair the porch, to which contract the plaintiff was privy, and which contract was made for the plaintiff's direct benefit;

"(2) Ex contractu--based on an express oral contract made by the defendant with the plaintiff herself to repair the premises;

"(3) Ex delicto--for negligent injury to the plaintiff on the theory that the plaintiff was the guest of the defendant on the premises, and the defendant negligently maintained the same in a condition not reasonably safe; and

"(4) On the theory of a latent defect."

The effect of the pleading from the viewpoint of the plaintiff was that Mrs. Jones was the initial actor arranging for a house where she would have the right to treat her patient advantageously, and where she would have the right, emanating from the defendant for a valuable consideration, to place and minister to her patient, Mrs. Meckins. The tendency of the testimony of Mrs. Jones as to her conversation with defendant's agent, Mr. Brooks, and that of her other witnesses, supported that theory or phase of the pleading. That is to say, defendant's liability--ex contractu to rent and repair the premises--was established by the contract with the Mannings as tenants, in which plaintiff had a direct interest because it was made with her also, in consideration of procuring the Mannings as tenants, and because defendant agreed with the plaintiff and the Mannings to repair the premises and make them safe for occupancy and for invitees thereon.

Evidence as to the latent defect tended to show that the condition of the porch was not disclosed to the Mannings by defendant's agent, Brooks. Mr. Brooks's secretary, Miss Acton, said: "Neither I nor Mr. Brooks, disclosed or stated anything to Mr. Manning about the state of repairs of the house. No person on behalf of the Tennessee Land Company revealed to Mr. Manning anything about the state of repair of that house when that house was let to him."

There was no controversy as to the fact that the plank was worm-eaten and that it broke or collapsed underneath plaintiff's weight. The condition of dry-rot underneath the edges of the porch and near the sills, which was not patent and caused the collapse and injury, was a latent defect not obvious to the parties inspecting the premises for the purpose of renting.

Mr. Brooks testifies as follows, as to the extent of his authority and his statement of the terms of rental:

"Mrs. Jones and Mrs. Manning came to my office on July 19th, 1934, in reference to leasing 4620 Palmer Avenue. Mrs. Jones and Mrs. Manning came to my office and asked to use this 4620 Palmer Avenue to put Mrs. Meckins in until she could be placed elsewhere or could be cured, and I immediately told them we could not permit the building to be used under any arrangement except under the usual terms of lease agreement signed by a company employee. At that time Mrs. Manning asked if she and her husband could rent the building, and I asked her if her husband was an employee of the company and she said he was, and I told her under that condition we would be glad to rent her the house, and for her to have Mr. Manning come to my office and sign the lease. Mrs. Manning stated to me at that time that the plumbing was in bad condition. She stated the sink was down in the kitchen and I think some faucets off. Mrs. Jones mentioned the condition of Mrs. Meckins and I expressed my sympathy with the case and expressed my willingness to help in a personal way any way I could. That is about what was said. Nothing was mentioned about any carpenter repairs whatever. Mrs. Manning said she had inspected the house or gone through it on the way down to my office and told about the plumbing. I sent the plumbers. I made a memorandum on a piece of yellow paper, as is our custom, and placed it on the file for the plumber to get. The plumber did not have anything to do with carpenter work or anything else at all.

"I instructed Miss Acton that Mr. Manning would be in to sign a lease and when he came in if I wasn't there to let him sign the lease. I executed the lease on the evening he signed it. He had signed it when I signed it. The lease was the usual form of lease taken from the employee. I did not have any arrangement with Mrs. Jones as to allowing her to visit the premises. I told Mrs. Jones I could not permit the use of the premises under any arrangement other than the usual lease form, that is, turned over to our employees."

And on cross-examination:

"At the time I agreed these people should take the house, I did not know Mrs. Meckins was an invalid. I knew she was sick. I knew Mrs. Jones was interested in the case. I didn't know she was nursing her. *** You ask me if it is not a fact that they said they were looking, not so much for a place for the Mannings, but a place to put Mrs. Meckins, and I answer, 'that was the first thing they talked about. The first thing was a proposition to get the house in which to put Mrs. Meckins.' At that time I understood that what they came there for, those people who were then in my office negotiating with me, was that they were looking for a place where Mrs. Meckins could be put and waited on and she was sick. I understood that, Mrs. Manning agreed that she would take the place. There was no agreement of any such kind as that Mrs. Meckins was to stay there. I never had any agreement with Mrs. Meckins at all. You ask me if they told me that Mrs. Manning was going to stay there and Mrs. Meckins was going to stay there, and I state that I presumed that would be the result of it. I presumed that from what was said there. I also presumed or concluded from what was said or done between us that Mrs. Jones was still interested in the case. I couldn't say about her going there to wait on that woman. Before this date, Mrs. Jones and I had both been undertaking to do something for Mrs. Meckins."

And on further examination of this witness the record recites the following:

" 'You never had any experience with your properties running down, or people running off with things?'

"The defendant objected to the question and the court sustained the objection, and the plaintiff then and there duly and legally reserved an exception.

"The witness continued as follows:

" 'I couldn't say how often we would get around to our property, ordinarily, and look at it. Nobody shares my particular duties as real estate agent for the Tennessee Land Company. No one else has the same authority. In a general way, the duties of my employment are, that I have charge of all the Tennessee Land Company's houses in Fairfield. I am responsible for conditions. I will not say it is my duty to look after them with any particular regularity. I would say "no" to the question as to whether or not it was a part of my duty to look after that property. The insurance department would look at it, keep it covered by fire insurance. I looked after covering it with fire insurance. I had seen the house a number of times. I kept acquainted with its approximate condition.'

"Thereupon, the following questions were asked and answers made:

"Q. You kept acquainted with its conditions? A. Its approximate condition.

"Q. Its approximate condition at all times? A. Approximately I did, yes, sir.

"Q. One

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