Mudd v. Gray

• Citation: 200 Ala. 92,75 So. 468
• Decision Date: 26 April 1917
• Docket Number: 6 Div. 535
• Parties: MUDD et al. v. GRAY.
• Court: Supreme Court of Alabama

75 So. 468

200 Ala. 92

MUDD et al. v. GRAY.

6 Div. 535

Supreme Court of Alabama

April 26, 1917

Rehearing Denied May 24, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Suit by F.P. Gray against W.S. Mudd and others. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Suit by appellee (plaintiff) against the appellants to recover damages for injuries received by plaintiff, resulting from a fall on the stairway of a building owned by the defendants in the city of Birmingham. Said stairway led to the second floor of said building, where the offices of tenants of the defendants were located, and was owned and controlled by said defendants. It was insisted by the plaintiff that on each side of the stairway was a banister or railing used as a support by persons entering or departing from said building that the plaintiff had been in the office of one of the tenants of the defendants, where he had business, and was departing therefrom by means of said stairway, when the banister on one side gave way, causing plaintiff to fall a long distance down said stairway, whereby his right knee was wrenched and sprained and his body bruised. It was also insisted on the part of the plaintiff that defendants were the owners of the lots on which said buildings were located that defendants W.S. and J.P. Mudd were joint owners of the west half of lot 19 in block 100 in the city of Birmingham and the building situated thereon; and that defendants W.V.M and H.M. Robertson were joint owners of the east half of lot 18 and the building situated thereon. The said adjoining buildings were connected by a common stairway, and were used as office buildings, being occupied by the tenants of said owners. The defendants owned and controlled the stairway between said buildings, which was used as a place of ingress and egress to and from the buildings by the public who might have business with said tenants. It was further insisted that the plaintiff had business in an office occupied by one of the tenants of the defendants on the second floor of said building. The defendants requested the affirmative charge, which was refused. The jury returned a verdict for the plaintiff in the sum of $316.50, from which judgment the defendants prosecute this appeal.

Percy, Benners & Burr and J.P. Mudd, all of Birmingham, for appellants.

Edgar Allen, of Birmingham, for appellee.

GARDNER J.

The facts established without dispute may be summarized as follows:

Appellants (defendants in the court below) were the owners of adjoining lots, together with the buildings thereon, in the city of Birmingham. The said adjoining buildings were connected by a common stairway. The second floor of the buildings was used as offices and rented to various tenants. The defendants owned and jointly controlled the stairway leading to the second floor, by means of which stairway the offices on said floor were reached by the public. It further appears that one Brintle was a tenant in the building owned by the appellants W.S. and J.P. Mudd, occupying one of the rooms as an office; that in his employment, as a stenographer, was one Miss Woodie, who had been in his employ for a period of nine years, and who testified that Mr. Brintle had occupied his said office for a period of eight years. She further testified that she was a notary public, and that she did extra work, such as fixing up papers for third parties in matters having no connection with the business of Mr. Brintle; that the plaintiff had employed her to draw up a paper for him, and had paid her for her services. On the day plaintiff was injured she had telephoned him to come to the office, as she had a check for him. This check was in payment of one of the notes which she had drawn up for the plaintiff, for which service she had been compensated. The plaintiff came in answer to the telephone call to the office of Mr. Brintle, where the young lady delivered the check to him. She received no compensation for this particular service, and Brintle had no connection with the transaction. Upon the plaintiff's departing from the building he was injured as a result of the banister giving way, and causing him to fall on the stairway, as disclosed in the statement of the case.

The insistence made in the trial court, and also urgently presented in appellants' brief, is that for the plaintiff to recover it must be shown that he went to the office on business in connection with that of the tenant Brintle; otherwise, he is a mere licensee, and not entitled to invoke the rule as to the landlord's obligation to the tenants and invitees. The duty which the landlord owes to the tenant, his guest, or invitee, as well also to third persons, in cases of this character, has been the subject of much discussion by the courts, resulting in some conflict of views, and whether the landlord retains possession and control of the premises or surrenders it to the tenant is considered of much importance in its bearing upon his duty both to the tenant and third parties.

In the instant case, the plaintiff was injured on a stairway jointly owned and controlled by the defendants, and reserved by them for the use in common of the different tenants. Where such is the case, the authorities seem to be very generally agreed that it is the duty of the landlord to use reasonable care to keep in good repair and safe condition such reserved portions of the premises; and if he negligently fails to do so, and the third person on the premises, on the express or implied invitation of the lessee, is injured on account of such defective or unsafe condition, while exercising due care, the lessor is responsible therefor. See note to Thomas v. Lane, L.R.A.1916F, 1087-1089, and authorities there cited. In speaking of the question as to whom the obligation of landlord should extend as to such passageways used in common by the tenants, Mr. Tiffany, in his work on Landlord and Tenant (1 Tiffany, § 98), says:

"It is impossible to state with exactness the classes of persons to whom the landlord is thus under an obligation to keep safe the passageways or other places used in common by the tenants, as having impliedly invited them to use such places. It seems that they should be such persons as the landlord would have reason, in view of the nature of the premises leased to the individual tenants, the circumstances of the leasing, and the nature of the place in question, to expect to be in such place. This is perhaps the

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