Osborn v. Brown

• Citation: 361 So.2d 82
• Parties: C. O. OSBORN, d/b/a Nob Hill Apartments v. Sarah Helen BROWN et al. C. O. OSBORN, d/b/a Nob Hill Apartments v. Sandy F. SOVEROW, etc., et al. CINCINNATI INSURANCE COMPANY v. Sarah Helen BROWN. 77-50, 77-202 and 77-203.
• Decision Date: 21 July 1978
• Court: Alabama Supreme Court

Page 82

361 So.2d 82

C. O. OSBORN, d/b/a Nob Hill Apartments v. Sarah Helen BROWN et al.

C. O. OSBORN, d/b/a Nob Hill Apartments v. Sandy F. SOVEROW, etc., et al.

CINCINNATI INSURANCE COMPANY v. Sarah Helen BROWN.

77-50, 77-202 and 77-203.

Supreme Court of Alabama.

July 21, 1978.

William C. Wood, Jr., Birmingham, for appellants.

Duncan Y. Manley and Charles F. Carr of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.

John B. Tally, Jr., Birmingham, for appellees Sandy F. Soverow and Allstate Ins. Co.

BLOODWORTH, Justice.

Defendants, C. O. Osborn, doing business as Nob Hill Apartments, and Cincinnati Insurance Company, appeal from denial of their motion for a new trial following a jury verdict against them in favor of plaintiffs, Sarah Helen Brown and State Farm Fire and Casualty Company in Case 77-50, and for Sandy F. Soverow for the use and benefit of Allstate Insurance Company in Case 77-202, and for defendant Brown in Case 77-203. We reverse and remand Cases 77-50 and 77-202, and affirm Case 77-203.

In late 1972, plaintiffs Brown and Soverow agreed to rent separate apartments from defendant Osborn in Nob Hill Apartments in Birmingham. Because their single apartments were not yet completed, Brown and Soverow agreed to rent a larger apartment in the complex from defendant Osborn until their separate apartments were finished. On December 30, 1972, a fire occurred in the apartment shortly after Brown had cooked some leftover livers and gizzards (for her dogs) on the electric stove and had left the apartment. Plaintiffs' property in the apartment was greatly damaged or destroyed.

Three separate suits, which were consolidated for trial, resulted. In the first suit, plaintiff Brown and her insurer, State Farm Fire and Casualty, sought damages from the owner of the complex, Osborn, for negligence and breach of contract. In the second suit, plaintiff Soverow, suing on behalf of her insurer, Allstate Insurance Company, sued her roommate, Brown, for negligence and Osborn for negligence and breach of contract. In the third suit, Cincinnati Insurance Company, Osborn's insurer, claimed damages against Brown for her negligence. The jury returned a verdict in favor of Brown and State Farm (plaintiffs in the first suit) and Allstate and Soverow (plaintiffs in the second suit) against defendant Osborn, but in favor of Brown (defendant in the second and third suits brought by Soverow, Allstate and Cincinnati). After Osborn's and Cincinnati's motion for judgment notwithstanding the verdict and new trial was overruled, this appeal followed.

Appellants' first contention is that reversible error was committed when the attorney representing plaintiffs State Farm and Brown stated to the jury, ". . . I would like to know where the analysis is that was run on the stove by Cincinnati Insurance." They contend there was no factual basis for the attorney's statement because there was no proof any analysis was run, and it thus constituted reversible error. We cannot agree. Appellees argue the evidence shows that Cincinnati took the stove and it may be inferred an analysis was run.

It is, of course, true that, in argument to the jury, counsel may not argue as a fact that which is not a fact in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. Teele v. Gravlee, 294 Ala. 126, 313 So.2d 169 (1975). It it also true that in the matter of an attorney's argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its ruling. Adams v. State, 291 Ala. 224, 279 So.2d 488 (1973). We need not decide whether the argument constituted legitimate inference or not. For, to justify reversal because of an attorney's argument to the jury, this Court must conclude that substantial prejudice has resulted. Teele v. Gravlee, supra. Here we do not find that any prejudicial error has resulted, in large measure, because of the trial court's prompt and effective admonition to the jury following defense counsel's objection to the statement, viz:

"THE COURT: Just a minute, Gentlemen. Let's keep it cool. Ladies and Gentlemen, I don't recall whether there was any evidence about any analysis or not. My recollection is that there wasn't. I will say this to you, you rely upon your recollection as to whether there was or was not, and it's not any duty on anyone to bring it here. Each of them has the right to discover and take depositions, as you have heard about, and as to whether or not the parties are equally available to the evidence is equally available. With that instruction and admonition, let's keep things within the realm of the evidence here and not have any outbursts." (Emphasis added.)

Appellants next contend that the trial court erred in admitting photographs made at the scene of the fire (which indicate that the circuit breakers were in the "on" position) because they were not authenticated and were not made soon enough after the fire. We must disagree.

A picture is not admissible unless a witness testifies that the picture as exhibited accurately reproduces the objects or actions which he observed. International Union, UAW v. Russell, 264 Ala. 456, 88 So.2d 175 (1956), Aff'd, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958).

But, the determination as to the sufficiency of the preliminary proofs offered to identify the photograph or to show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

After some confusion in her earlier testimony, Brown finally testified that the picture was taken, to the best of her knowledge, on the same night as the fire. She further testified that, to the best of her knowledge, no change was made in any of the positions of the switches, and that the pictures substantially depicted the condition of the circuit breaker at the time the picture was taken. Thus, we think the pictures were properly authenticated, and there was no error in admitting them into evidence.

Appellants next maintain that the trial court erred in allowing an expert witness to respond to hypothetical questions which called for his opinion as to whether a fire would ignite if a staple was put into a hot wire, causing a short circuit, and the circuit breaker was not operating properly. Appellants contend there was no evidence introduced at any time regarding the malfunction of the circuit breaker, and thus the question was improper. We cannot agree.

The frame and substance of hypothetical questions to expert witnesses is a matter largely committed to the sound discretion of the trial court. Dyer v. Traeger, 357 So. 2d 328 (Ala.1978). We find no abuse of the trial judge's discretion here.

Initially, the trial judge sustained an objection to the question because no evidence had been offered to prove the circuit breaker had malfunctioned and because appellee's attorney was unable to represent to the court that evidence would be offered on that point. However, the trial judge later allowed the expert to so testify. In so doing, the judge made the following comment:

"Based upon some twenty-some-odd years as a fireman, sir, and I believe you have some knowledge of electricity, I will let you give your best judgment as to whether that could or would or would not cause a fire."

The expert witness then testified as follows: "I would say under the right circumstances, everything being right it's possible." We do not think that allowance of this testimony was an abuse of discretion.

Appellants also contend that the trial judge erred in refusing to give two of their requested jury instructions regarding inferences of fact, i. e., APJI 15.00 and 15.01. Although these charges appear to contain correct statements of the law, we think the failure to give these charges, if error, was harmless error. The charges, moreover, were "abstract." Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970).

Appellants' main contention is that Osborn as landlord did not breach any obligation or duty to the appellees. We agree and hold that submission of the case to the jury against Osborn constituted reversible error.

A landlord, in the absence of a covenant to repair, is liable only for latent defects of which he knows at the time the lease is made and which he conceals from the tenant. Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). However, appellees' able and resourceful counsel advance five theories to support recovery which are said to take this case out of the general rule. We will consider these theories seriatim.

The first theory asserted for recovery is that the two women were Invitees, rather than tenants, and thus were owed a higher standard of care. The trial court charged the jury that it might find, under the evidence, that the two women were invitees. This was error.

An invitee is a visitor, a transient who enters property at the express or implied invitation of the owner or occupier for the material or commercial benefit of the occupier. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). A tenant, on the other hand, does not merely visit, but acquires an interest in the property, including the exclusive legal possession of the leased premises. See Rehfuss v. McAndrew, 250 Ala. 55, 33 So.2d 16 (1947).

We think the evidence clearly establishes a landlord-tenant relationship. The two women were not visitors, but were parties who leased an apartment, albeit temporarily, obtained possession, and paid rent. The payment and receipt of rent has been held to establish the relationship of landlord and tenant. Hackney v. Griffin, 244 Ala. 360, 13 So.2d 772 (1943). Also, the word "apartment," which has been used by all the parties to refer to...